2306857 (Refugee)

[2023] AATA 4100

2306857 (Refugee) [2023] AATA 4100 (1 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sanmati Verma

CASE NUMBER:  2306857

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Jason Pennell

DATE:1 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant is a member of the same family unit as [Ms A] (AAT file No 1613496 & 2113232) pursuant to s.36(2)(b)(i) of the Migration Act.

Statement made on 1 September 2023 at 10.05am

CATCHWORDS

REFUGEE – Protection Visa –Pakistan – GOD had affirmed the delegates decision in relation to applicant – Tribunal no longer has jurisdiction to determine of the applicant is a refugee pursuant to s.36(2)(a) of the Act – applicant suffers for PTSD and depression – apprehended bias – recusal request was refused – applicant as a Member of the same family unit –a member of the same family unit as persons mentioned in s 36(2)(a) of the Act, and who hold a protection visa of the same class as that applied for by the applicant – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 45, 48, 65, 66, 412, 499

Migration Regulations 1994, rr 1.05, 1.12, 2.08, Schedule 2

CASES

BMY18 v Minister for Homes Affairs [2019] FCAFC 189
Ebner v the Official Trustee in Bankruptcy [2000] HCA 63
Isbester v Knox City Council (2015) 89 ALJR 609

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.The applicant together with his wife, [Ms A] (‘the applicant’s wife’) and their three children (‘the applicants’’) initially applied for Protection (Class XA) visas on 5 February 2013. However, by operation of s45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the applications were taken to be, and to have always been, valid applications for Temporary Protection (Class XD) visas and are taken not to be, and never to have been, valid applications for Protection (Class XA) visas.

3.On 18 August 2016 the delegate of the Minister for Immigration and Border Protection refused the applicants’ application for protection (‘the delegates decision”). On 24 August 2016 the applicants made an application to the Tribunal to review the delegates decision, to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

1. On 25 October 2019 the General & Other Division of the Administrative Appeal Tribunal (the GOD) affirmed the delegates decision (‘the GOD affirm decision’) to refuse the applicant a protection visa on the basis that Art 1F(b) excludes the application of the 1951 Convention relating to the Status of Refugees (‘the Refugee Convention’). That is, there are serious reasons for considering that he committed a serious non-political crime outside the country of the refuge (Australia) prior to his admission to that country as a refugee.

2. In addition, the GOD set aside the delegates decision in relation to the applicant’s wife in so far as it refused her a protection visa based on Art 1F(b) of the Refugee Convention (‘the GOD remittal decision). The GOD remitted the delegates decision in relation to the applicant’s wife with a direction that Art 1F(b) of the Refugees Convention does not exclude the application of the provisions of that Convention to her. That is there were no serious reasons for considering that she committed a serious non-political crime outside the country of refuge (Australia) prior to her admission to that country as a refugee.

3. In circumstances where the GOD had affirmed the delegates decision in relation to applicant and remitted the delegates decision to the department in relation to the applicant’s wife, on 2 September 2021 the Migration and Refugee Division of the Tribunal (MRD), decided that it no longer had jurisdiction in relation to applicant and the applicant’s wife.  The review applications of the children were held in abeyance by the MRD at that time.

4. On 27 September 2021 the delegate refused to grant the applicant’s wife a protection visa on the basis that she did not meet the criteria for a grant of a protection visa as a refugee pursuant to s 36(2)(a) only.[1]

   [1]    AAT File No 1613496 & 2113232; Doc ID 8895805.

5. On 29 September 2021 the applicant’s wife made application to the Tribunal for review of that decision.[2] The application for protection by the Applicant’s children remained with the Tribunal and was considered with the wife’s application as members of the same family unit pursuant to reg 1.05A and 1.12 of the Migration Regulations. The applicant appeared before the appeared before the Tribunal on 13 October 2021, 16 October 2021 and 16 December 2021 to give evidence and present arguments in support of his wife’s application. The applicant and the applicants’ representative both confirmed to the Tribunal that he was not a party to his wife’s proceeding.

   [2]    AAT File No 1613496 & No 2113232; Doc ID 8895806.

6. On 3 March 2023, the Tribunal remitted the delegate’s decision with a direction that the applicant’s wife and his daughter [Miss B] satisfy s 36(2)(a) of the Act, and his other children satisfy s 36(2)(b) of the Act (‘the [Ms A] decision’).

RELEVANT LAW

The Tribunal’s Jurisdiction.

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. In this case, by reason of the GOD affirm decision, the Tribunal no longer has jurisdiction to determine of the applicant is a refugee pursuant to s.36(2)(a) of the Act. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

3. The applicant has made a new application for the Tribunal to review the delegates decision dated 18 August 2016 on the following basis:

   (a)The applicant was not correctly notified of the delegates decision in accordance with s.66 of the Act.

   (b)the Form 866 lodged by Mr and [Ms A] on 5 February 2013 constituted two valid applications on Mr [A]’s part, seeking to satisfy s 36(2)(a) and (aa) based on his own claims, and s 36(2)(b) and (c) as a member of [Ms A]’s family unit.

   (c)The Tribunal has not reviewed the delegate’s decision in respect of respect of s.36(2(aa) of the Act and as a member of the same family unit pursuant to s.36(2)(b) or (c) of the Act.  

Notification of a decision.

1. Section 66 of the Act provides that when the Minister grants or refuses to grant a visa, the applicant is to be notified in the prescribed way. Section 66 of the Act states:

Notification of decision

(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

(2) Notification of a decision to refuse an application for a visa must:

(a)     if the grant of the visa was refused because the applicant did not  satisfy a criterion for the visa--specify that criterion; and

(b)     if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and

(c)      unless subsection (3) applies to the application--give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

(d)     if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:

(i)  that the decision can be reviewed; and

(ii)  the time in which the application for review may be made; and

(iii)  who can apply for the review; and

(iv)  where the application for review can be made; and

(e)     in the case of a fast track reviewable decision--state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and

(f)      in the case of a fast track decision that is not a fast track reviewabledecision--state that the decision is not subject to review under Part 5, 7 or 7AA.

(3)  This subsection applies to an application for a visa if:

(a)     the visa is a visa that cannot be granted while the applicant is in the migrationzone; and

(b)     this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

(4)  Failure to give notification of a decision does not affect the validity of the decision.

(5)  This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

1. The applicant submits that the delegate’s decision dated 18 August 2016 was not notified in accordance with s.66(d)(ii) of the Act because it did not specify the period within which a review could be sought. 

2. Pursuant to s.412(1)(b) of the Act, the period to seek review of a decision under Part 7 of the Act ceases upon notification of the decision under review and after the prescribed period has elapsed. That is, the period within which a review must be sought pursuant to s.412(1)(b) of the Act is contingent upon effective notification of the decision under review. 

3. In BMY18 v Minister for Homes Affairs [2019] FCAFC 189 (‘BMY18’) the Full Court held that notice of the delegates decision did not comply with s.66(2)(d)(ii) because the information as to when the notification is taken to be received was confusing and misleading. The court stated that:[3]

   ‘…the placing of the information as to when the notification is taken to have been received on p.3 under the incorrect heading ‘Financial or case worker assistance’ and away from the pertinent section on p.2 headed ‘Review Rights’ means that the letter was confusing and misleading. Consequently, it does not state clearly the matter required by s.66(2)(d)(ii).’

   [3] BMY18 v Minister for Homes Affairs [2019] FCAFC 189 @ [35]

4. Relevantly, as in the BMY18, in this case the notice of the delegates decision dated 18 August 2016 also placed the information relating to the notification of the decision under a heading ‘Financial or case worker assistance.’ Accordingly, the Tribunal finds that the time for review of the delegates decision has not elapsed.

5. In addition, in circumstances where the GOD affirm decision only made an order in relation to s.36(2)(a) of the Act, the Tribunal determines and finds that MRD continues to have jurisdiction to determine this application by the applicant in relation to s.36(2)(aa) and s.36(2)(b) or (c) of the Act.

Member of the same family unit – ss 36(2)(b) and (c)

1. Sections 36(2)(b) and (c) provide as an alternative criterion (to the refugee and complementary protection criteria) that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a spouse of the family head and child of the family head.

APPLICANT’S CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa), or a member of the same family unit of a non-citizen who meets the requirements of those provisions of the Act pursuant to ss 36(2)(b) or (c). The Tribunal has determined to decide the review in the applicant’s favour based on the material before it, and therefore did not invite the applicant to a hearing as per s 425(2)(a). The Tribunal has concluded that the matter should be remitted for reconsideration for the reasons detailed below.

Identity

1. The applicant’s protection visa application states that he was born on [date] [in] Quetta, Pakistan. In the decision record, the delegate raised concerns regarding the applicant’s identity, including the use of aliases and a fake Afghan passport, which he used to travel to [Country 1] in 2001. At the request of the Department, the applicant produced his original [Country 1] driver’s license and residence card to support his claims as to his identity. These documents were found to be legitimately manufactured.[4] The delegate found that the applicant gave consistent details regarding his name and the year and country of his birth and found it to be ‘more likely than not’ that the applicant was from Pakistan. However, considering the numerous aliases known to the Department, the delegate was not satisfied as to the applicant’s correct name and date of birth.[5]  

   [4]    Department File [deleted].  

   [5]    Delegates decision dated 18 August 2016, Department File [DELETED], Tribunal Doc ID 8504391.

2. The Tribunal has considered the material before it, including the applicant’s consistency as regards his identity since his arrival in Australia, and is satisfied that the applicant’s identity is as claimed.

Applicant’s Migration/detention History

1. The applicant previously resided in [Country 1] with his together with his wife, [Ms A] and son, [Mr C] from 2001 to 2011. In or about October 2011, the applicant together with his wife and children departed Pakistan and travelled to [Country 2]. The applicant and his family remained in [Country 2] for approximately 6 months before traveling by boat to Australia. The applicant arrived in Australia with his family on [date] May 2012 upon which they were taken to Christmas Island. The applicant and his family have not departed Australia since their arrival.   

2. The applicant has been held in detention since arriving in Australia. On 26 May 2012 he was transferred to [APOD][6] where he remained for thirteen months. On 29 August 2013 the applicant was separated from his family and transferred to Villawood Immigration Detention Centre (IDC).[7] 

   [6]    Alternative Place of Detention (APOD) is a form of low security detection and can refer to temporary alternative detention places such as hospitals, schools, or hotel rooms (see Sampson, Robyn. "Mandatory, non-reviewable, indefinite: Immigration detention in Australia." Immigration Detention. Routledge, 2015. 104-113.)

   [7]   [An] assessment Summary Report dated 25 June 2019AAT file No 1613496 ff62

3. On 9 November 2013 the applicant was transferred to Yonga Hill IDC for court proceedings. On 18 December 2013 the applicant was transferred to Perth IDC for court proceedings. On 29 January 2014 the applicant was transferred back to Villawood IDC and on 2 March 2014 transferred to Maribyrnong Immigration Detention centre (MIDC) in Victoria. On 12 May 2016 the applicant was transferred to Melbourne Immigration Transit Accommodation (MITA) and on 26 June 2016 returned to MIDC. The applicant was transferred to MITA on 23 November 2026 where he remains.[8]

   [8]   ibid

4. On [date] September 2014 the applicant was found guilty of [details deleted].[9]On 6 October 2014, the applicant was sentenced to a term of imprisonment of three years and six months, commencing from 7 May2012.[10]  

   [9]    Delegates decision dated 18 August 2016, Department File [DELETED], Tribunal Doc ID 8504391.

   [10]  ibid

5. The Tribunal notes that the [assessment] Summary Report dated 25 June 2019[11] (‘the applicants assessment report’ ) states that the applicant is suffering for Post-Traumatic Stress Disorder (PTSD) and Depression. It’s reported that the applicants protracted and continued detention together with the prolonged forced separation from his family, his inability to alter his situation and his ongoing uncertainty in relation to his future has undermined his mental health.  Based on the applicant’s assessment report the Tribunal accept that the applicant suffers for PTSD and depression as claimed. In addition, based on the assessment report the Tribunal it accepts and finds that the applicant’s detention continues to further undermine his mental health.

   [11]  ibid

CONSIDERATION OF CLAIMS AND EVIDENCE

Department’s submission

1. On 31 July 2023 the Tribunal requested that the department make any submission in relation to the Tribunals ability to hear and determine the applicant’s application. By a letter dated 30 August 2023, the department conceded that the Tribunal was not funtus officio in that the MRD has jurisdiction to determine the remaining components the decision under review.[12]  

Recusal Application.

[12]  Departments letter to AAT dated 30 August 2023.

1. By correspondence dated 17 May 2023 and 24 August 2023 the applicant’s representative submitted that the Senior Member should recuse himself from this proceeding for apprehended bias. The applicant’s representative submitted that having found that the Tribunal did not have jurisdiction to hear review the decisions made in relation to Mr [A] under s.36(2)(aa), (b) and (c) of the Act upon the decision to grant the review application of Mr [A]’s wife and four children the Senior Member had taken the incorrect view. It was claimed that having prejudged the issue it was inappropriate for the Senior Member and that he should recuse himself based on apprehended bias.

2. Apprehended bias will be established where a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision. The test is concerned with possibility (real and not remote) and not probability.[13]

   [13] (Re RRT; Ex parte H (2001) 179 ALR 425 at [27]-[30] and SZHBP v MIAC (2008) 103 ALD 595 at [78])

3. The High Court has stated the test for apprehended bias as follows:

   The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.” (Ex parte H, per Gleeson CJ, Gaudron and Gummow JJ at [27].)

4. In Ebner v the Official Trustee in Bankruptcy [2000] HCA 63 at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ, the High Court described the steps required for resolution of apprehended bias as follows:

   The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

1. In Isbester v Knox City Council (2015) 89 ALJR 609 at 619 at [59], Gageler J described the steps in the following passage:

   Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as a result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.

2. In this case, in making the decision that the Tribunal did not have jurisdiction to make an order in relation to the applicant upon the [Ms A] decision, the Senior Member did not turn his mind to the merits of the applicant’s application. The decision that the Tribunal did not have jurisdiction at that time was based on the submissions by the applicant and his representative at hearing of the [Ms A] proceeding that the applicant did not have any interest in the matter. In the absence of any formal application for review having been made by the applicant to the Tribunal, it was determined that the Tribunal did not have jurisdiction. 

3. Therefore, while the decision that the Tribunal had no jurisdiction may be a basis of such an application, in the absence of any consideration of the merits of the applicant’s application, the assertion of apprehended bias by the Senior Member in making this decision is unreasonable. Accordingly, the applicant’s recusal request was refused.

Applicant as a Member of the same family unit – ss 36(2)(b) and (c)

1. The applicant claims he was married to [Ms A] on[date] June 1999. In support of his protection visa application, the applicant submitted birth certificates of his children, each of which lists the applicant as father, and the applicant’s wife as mother.[14] The delegate observed the behaviour of the applicant and his wife at their protection visa interview and was satisfied that the couple were married.

   [14]   Copies of children’s birth certificates, Department File [deleted], Tribunal Doc ID 8504389.

2. The Tribunal has considered evidence submitted in support of the applicant’s previous review before the Tribunal, including statements from the applicant dated 10 December 2021, and his wife, dated 9 December 2021, in which they each refer to each other as their spouse.[15] The Tribunal has also reviewed the certified translation of the applicant’s daughter’s birth certificate, which lists the applicant as her father and Mrs [Ms A] as her mother.[16]

   [15]   Submissions containing statements of the applicant and wife, Tribunal Case 1613496, Doc ID 9226363.

   [16]   Certified translation of the applicant’s daughter’s birth certificate, Department File [DELETED], Tribunal Doc ID 8504391, @ folio 59.

3. The Tribunal has also had regard to the [Ms A] decision[17] in which it accepted that the applicant is married to [Ms A] and is father to their four children [Mr C], Master [D], Miss [Miss B], and Master [E] (‘the children’).[18]

   [17]  AAT File No 1613496 & No 2113232; Doc ID 8895806

   [18]  ibid

4. Based on the evidence before it, the Tribunal is satisfied that the applicant is the spouse of Mrs [Ms A] (as defined under s.5F of the Act), and Miss [Miss B] is the child of the applicant (as defined in s.5CA of the Act). The Tribunal notes that Miss [Miss B] is under eighteen years old. The Tribunal is also satisfied that Mrs [Ms A] and Miss [Miss B] are persons in respect of whom the Tribunal has found that Australia owes protection obligations under the Refugees Convention and who satisfy the criterion set out in s.36(2)(a) of the Act.

5. For the reasons given above, the Tribunal is satisfied that the applicant is a member of the same family unit as persons mentioned in s 36(2)(a) of the Act, and who hold a protection visa of the same class as that applied for by the applicant. Accordingly, the applicant satisfies s 36(2)(b)(i) of the Act.

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant is a member of the same family unit as [Ms A] (AAT file No 1613496 & 2113232) pursuant to s.36(2)(b)(i) of the Migration Act.

Jason Pennell

Senior Member