AIU20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 850
Federal Circuit and Family Court of Australia
(DIVISION 2)
AIU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 850
File number(s): ADG 36 of 2020 Judgment of: JUDGE BROWN Date of judgment: 14 October 2022 Catchwords: MIGRATION – Application for judicial review – decision of the Administrative Appeals Tribunal – application for protection visa – citizen of Republic of China (Taiwan) – claim for protection on the basis of ethnic origins and economic and racial discrimination – where applicant’s grandfather was a member of the Chinese Expeditionary Force in Burma – applicant born in Burma but granted Taiwanese citizenship – whether applicant was afforded procedural fairness – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36(2), 65, 425, 425A, 474, 476(1)
Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021
Migration Regulations 1994 Sch 2
Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
MZZGY v Minister for Immigration & Border Protection [2014] FCA 488
Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 5 October 2022 Place: Adelaide Applicant: Appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr Chan Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting notice filed save as to costs ORDERS
ADG 36 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIU20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
14 oCTOBER 2022
THE COURT ORDERS THAT:
1.The application filed 24 January 2020 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of FIVE THOUSAND DOLLARS ($5,000.00).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] made on 18 October 2019, not to grant the applicant a Protection Visa[2] pursuant to the provisions of the section 65 of the Migration Act 1958 (Cth).[3]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “the visa” or “the Protection Visa”.
[3] Hereinafter referred to as “the Act”.
The applicant, whose identity has been anonymised, was born in Myanmar (formerly Burma) on 28 February 1978. She is currently a citizen of the Republic of China (Taiwan). She acquired her citizenship, in Taiwan, on 1 June 2004.
The applicant arrived in Australia, by commercial aeroplane, departing from Taipei International Airport, on 10 April 2016 and applied for this country’s protection on 21 June 2016. She completed a pro forma document, in support of her application, the contents of which can be summarised as follows:
·Her grandfather was a member of the Chinese Expeditionary Force, sent by the Kuomintang Government to Burma, during the Second World War, to oppose the Japanese forces then occupying Burma, which at the time was a part of the British Empire.
·During the time her grandfather was in Burma, the Chinese Communist Party defeated the Kuomintang and took over the government of China.
·As a consequence, the applicant’s grandfather was not in a position to return to what had become the People’s Republic of China.
·When Burma was granted independence, from Britain, the applicant asserts that people of Chinese ancestry, such as her grandfather and her family, including herself, were not recognised as Burmese citizens.
·As a consequence, the Taiwanese Government issued passports and offered citizenship to individuals such as her, which she took up in 2004.
·It is the position of the applicant that she was subject to discrimination, in Taiwan, because of her background and was only able to work at the lowest level labour receiving a salary that was even lower than the minimum pay.[4]
·The applicant further complained that as there were no anti-discrimination laws in Taiwan, she was not in a position to ameliorate her situation in Taiwan.
[4] See Court Book at page 32.
Given the applicable provisions of the Act, to which more detailed reference will be made in due course, the relevant pro forma document, completed by the applicant, requested her to respond yes or no to a number of salient questions and, as appropriate, provide written details in support of her answers.
In response to the question What do you think will happen to you if you return to that country (by necessary implication, Taiwan), the applicant replied as follows:
I will have the same situation like before. People discriminate against me and treat me as an inferior person.[5]
[5] See Court Book at page 32.
In response to the question Did you experience harm in that country, the applied replied yes and expanded as follows:
I didn’t experience physical harm but I have a deep mental harm. If I continue stayed in Taiwan, I could have mental illness in just few years.[6]
[6] See Court Book at page 33.
In response to the question regarding what harm or mistreatment she would suffer, if returned to Taiwan, the applicant replied as follows:
If I go back to Taiwan. I will still live as before. Taiwanese treat me like an inferior people. I can only work in worst working environment with very low salary like a slave.[7]
[7] See Court Book at page 34.
In other portions of the form, the applicant indicated that she would be unable to move to another part of Taiwan to escape such discriminatory conduct because of the small size of Taiwan.
In addition, in answer to a question as to whether she could obtain protection from the relevant Taiwanese authorities, regarding her complaints of unsatisfactory treatment in the workplace, she indicated that no such protection would be available to her given the lack of discrimination laws in Taiwan.
On 27 August 2019, a Delegate of the Minister for Home Affairs[8] declined to grant the applicant the relevant Protection (sub-class 866) Visa. In so doing, the Ministerial Delegate had access to information germane to Taiwan. In particular, the Delegate noted that the country had labour laws, which regulated working hours and prescribed minimum wages. The Delegate further described Taiwan as having a stable multiparty political system, which did not prohibit political protest or freedom of assembly.
[8] Hereinafter referred to as the “Ministerial Delegate” or “Delegate”.
As a consequence, the Delegate did not consider that the applicant’s assertion that Taiwan lacked discrimination laws governing employment conditions in Taiwan were made out. In addition, the Delegate did not accept that the applicant herself would be subject to any form of discrimination, in Taiwan, on the basis of her status as a descendant of a person who had been involved with the Kuomintang in Burma and who had been born there. In this context, it was noted that the applicant had been able to attend university in Taiwan and had found employment following her graduation.
It was further noted that the applicant had been able to legally depart and re-enter Taiwan, on several occasions, between 2012 and 2014, visiting Japan, Burma, Indonesia, Guam as well as the United States. As a consequence, the Delegate did not consider that there was any evidence to indicate that the applicant had sufficient profile to draw the adverse attention of the Taiwanese authorities.
On this basis, the Ministerial Delegate concluded that there was no real chance that the applicant would suffer persecution, for any reasons related to her background or racial origins, if she returned to Taiwan. On this basis, the application for the relevant visa was declined.
On 20 September 2019, the applicant applied to the AAT for a review of the Delegate’s decision. On 18 November 2019, the applicant was invited, by the AAT, to attend before it in order to give evidence and present any arguments relating to her claim for protection. The relevant hearing was scheduled for 10 December 2019.
On 10 December 2019, the applicant wrote to the Tribunal, via email, indicating that she was sick and requesting another appointment. At this stage, from the Tribunal’s perspective, the applicant had provided a generalised medical certificate, which did not detail any particular condition then suffered by the applicant, which then precluded her from attending the hearing.
As a consequence, it regarded the adjournment application as being unsatisfactory. Nonetheless, the hearing was rescheduled to 18 December 2019 and, as requested by the applicant, a Mandarin speaking interpreter was retained for this hearing.
THE HEARING BEFORE THE AAT
Before the AAT, the applicant reiterated her claims that she had been treated unfairly by employers in Taiwan because of her background as a person born in Burma. In this context, the applicant indicated that Taiwanese people were favoured by employers over foreign workers and were required to work longer hours and discharge more onerous duties.
In respect of her evidence, the Tribunal indicated to the applicant that it found her evidence vague and lacking in detail. When asked to provide further detail, the applicant was unable to do so. In this context, the Tribunal also made the following observations:
The Tribunal asked the applicant what impact the actions of her employers had on her. The applicant said she felt discriminated against. She did not feel respected. The applicant conceded that she has not suffered significant or serious harm in Taiwan.
The Tribunal had regard to the applicant’s passport and noted that she had travelled overseas on a number of occasions. The applicant said that she had travelled to Japan, Korea, USA, Hong Kong and Indonesia as a tourist for holidays. She said that she travelled to the USA with her co-workers. The Tribunal noted that her evidence did not seem consistent with her claims that she was struggling to earn an income and was not given leave by her employers. The applicant did not respond to the Tribunal’s question and said she had to save money for a long time before she was able to afford to go on vacation.[9]
[9] See Court Book at page 92 at [25]-[26].
The Tribunal, from country information available to it, described Taiwan as a largely homogenous society, with a majority of individuals, who had originated in Taiwan and therefore identified as being Taiwanese. It was also noted there was a significant minority (14%) of individuals born in Mainland China and a small indigenous population (2%).
In this context, it did not discount the possibility that the applicant might be subject to racial and ethnic discrimination, in Taiwan, because of her background. However, it also noted that the Taiwanese constitution prohibited discrimination on the grounds of gender, religion, race, social class and political affiliation. In addition, it noted that Taiwan had ratified the International Labour Organisation Conventions regarding employment discrimination.
In this context, the Tribunal made the following finding:
The Tribunal found the applicant’s evidence about the discrimination she experienced during her employment in Taiwan vague and lacking in detail. The Tribunal has had regard to country information detailed above and accepts that racial discrimination and ethnic discrimination in the workplace in Taiwan is a problem. The Tribunal is prepared to accept that the applicant may have been underpaid and made to work long hours by some of her employers in Taiwan because she was considered a foreign worker from Burma. The Tribunal has considered the applicant’s claims and also accepts the applicant was subjected to societal discrimination in Taiwan because she was considered a foreigner of Chinese ethnicity who was born in Myanmar.[10]
[10] See Court Book at page 95 at [46].
In these circumstances, the Tribunal did not accept that the various complaints made by the applicant amounted to serious harm and, in the reasonable foreseeable future, she was likely to be able to return to Taiwan and find some form of employment, given that she had completed some tertiary studies and had been previously employed in Taiwan.
In its conclusion, the Tribunal determined as follows:
In conclusion, the Tribunal has considered the cumulative effect of the discrimination experienced by the applicant in Taiwan because she is a person of ethnic Chinese origin who was born in Myanmar. Looking to the reasonably foreseeable future, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm in Taiwan because of the combined grounds of her race and/or nationality. The Tribunal finds that the applicant’s fear of persecution is not well-founded.[11]
[11] See Court Book at page 96 at [56].
In summary, the Tribunal did not accept that applicant met the statutory criteria to enable her to be categorised as a refugee, to whom Australia owed protective obligations, on the basis that she was either subjectively or objectively likely to suffer persecution, because of her background as an ethnically Chinese person, who had been born in Myanmar, if returned to Taiwan.
This, in my view, was a question of fact, which the Tribunal determined on the basis of the applicant’s evidence to it and its consideration of information germane to Taiwan, to which it had access. It is not the function of this court to substitute its own findings of fact for those of the Tribunal.
Thereafter, the Tribunal rejected the applicant’s claim for complimentary protection. In particular, it did not consider that there was any evidence to indicate that she would suffer significant harm, if returned to Taiwan.
As a consequence of this decision, the applicant commenced proceedings, in this court, within time, on 24 January 2020, seeking a judicial review of the decision of the AAT. In particular, she seeks an order quashing the decision of the Tribunal and that it be remitted for further hearing.
The applicant has apparently drafted her own grounds of application (or has had assistance from an unqualified person), which are simple and unparticularised. They are as follows:
•Unsupported evidence
•Procedural fairness
•Did not show me example case.[12]
[12] See Applicant’s Application – Migration filed on 24 January 2020.
The applicant is not a sophisticated person in terms of being able to readily access legal advice. In addition, it is apparent that her English is, at best, rudimentary. It was accepted, before the Tribunal, that she had been exploited by an unscrupulous person, purporting to be a migration agent, who had assisted her with completing the pro forma application for protection.
Notwithstanding these factors, there can be no doubt that the applicant has been given significant notice of the current proceedings and was directed to file any submissions, in support of her case, 14 days prior to the hearing, which was fixed for hearing on 17 August 2022. The applicant has not filed any further submissions and was not legally represented at the hearing before me.
The applicant was provided with the assistance of a Mandarin speaking interpreter for the hearing before this court. She struggled to articulate any grounds indicative of jurisdictional error. Rather, she expressed her nervousness and indicated that she did not agree with the decision of the Tribunal, which she wished to have set aside.
LEGAL CONSIDERATIONS RELEVANT TO THE GRANT OF PROTECTION VISAS
The AAT summarised the legislative criteria for the grant of a protection visa pursuant to the Act. In general terms, the following matters are relevant to any decision in respect of a migration decision concerning an application for protection.
Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
In respect of an application for a protection visa, the criteria required to be satisfied are set out in the Act and in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy one of the primary criteria contained in either section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and is therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
[I]n the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·be subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
The expression serious harm is defined in section 5J(5) as follows:
·a threat to the person's life or liberty;
·significant physical harassment of the person;
·significant physical ill-treatment of the person;
·significant economic hardship that threatens the person's capacity to subsist;
·denial of access to basic services, where the denial threatens the person's capacity to subsist;
·denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
These sections reflect the definition appearing in the Refugees Convention,[13] to which Australia is a signatory and which provides that a refugee is a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
[13] Hereinafter referred to as “the Convention”.
The High Court has established that this definition has both subjective and objective elements. As a consequence, the question to be asked by the relevant decision-maker, regarding an application for protection being firstly does the applicant concerned subjectively fear persecution and secondly is that fear objectively well-founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned, if he or she is returned to the country, where persecution is posited. Necessarily such considerations are predictive in nature. They are often encapsulated under the rubric of the real chance test.[14]
[14] See S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 498–499 [72]–[73].
Accordingly, in determining whether there is such a real chance of a protection visa applicant suffering serious harm, in his or her country of origin, a decision maker is entitled to refer to information germane to the country of origin, of the applicant concerned, regarding the situation likely to confront either the actual applicant or others who bear his or her attributes, if returned to that country.
Essentially, the question to be addressed is what is the objective likelihood that the claimant in question will suffer persecution if returned to his or her country of origin. Such an inquiry is likely to involve a survey of information of the situation likely to confront a person, with the attributes of the claimant concerned, in the applicable country. Such objective information is invariably referred to as country information.
Pursuant to section 36(2)(aa) of the Act, a person is entitled to a protection visa, if there are substantial grounds for believing that, if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering significant harm if returned to a particular country.
Section 36(2A) of the Act defines significant harm. It includes the relevant applicant for protection suffering all or any of the following circumstances:
·being arbitrarily deprived of his or her life;
·being subject to the death penalty;
·being subject to torture;
·being subjected to cruel or inhumane treatment or punishment; or
·being subject to degrading treatment or punishment.
LEGAL PROVISIONS APPLICABLE TO JUDICIAL REVIEW OF MIGRATION DECISIONS
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[15]
[15] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution.” This provision of the Constitution confers original jurisdiction on the High Court in proceedings in which a prerogative writ is sought against an officer of the Commonwealth.
Accordingly, the court has the authority to grant the relief sought by the applicant by way of writs of certiorari and mandamus to quash the relevant Tribunal decision and require the re-hearing of the review but only in the event an error of jurisdiction is established.
In this context, it is important to emphasise that, in undertaking judicial review, this court is unable to examine the merits of the relevant decision under review or substitute its own findings of fact for those of the original decision-maker. As such, the court must be vigilant to avoid inadvertently transforming a process of judicial review into a re-hearing on the merits.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[16]
[16] See Craig v South Australia (1995) 184 CLR 163.
The classic description of an error, which goes to the jurisdiction of an administrative body, was described in the following terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[17]
What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[18]
[17] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
[18] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82].
In Minister for Immigration & Citizenship v Li (“Li”)[19] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[19] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75]–[76].
Following on from Li, in Minister for Immigration & Border Protection v Singh,[20] the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
[20] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[21]
[21] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme” not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[22] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[22] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.
In order to be successful in their application for review, it will be necessary for the applicant to demonstrate an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own discretion for that of the Tribunal or embark upon its own process of merits reviewing, which involves it making findings of fact in substitution for those of the Tribunal.
In Minister for Immigration & Ethnic Affairs vWu Shan Liang[23] the High Court warned that a court, such as this one, called upon to review a decision regarding refugee status:
Must beware of turning a review of the decisions of the decision-maker upon proper principles into a reconsideration of the merits of the decision.[24]
[23] Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259.
[24] Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 at 272.
As such, this court is required to give the reasons of the Tribunal a beneficial construction, which does not involve a degree of over-zealous scrutiny, which searches out error.
DISCUSSION
In ground 1, the applicant simply asserts that the decision of the Tribunal, that she was not owed Australia’s protection, was not supported by the evidence. As previously indicated, this is a bare assertion and is unparticularised.
In my view, it is clear from the decision of the Tribunal that it carefully considered the applicant’s contention that she would be liable to suffer persecution, in the sense envisaged by the Act, namely that there was a real chance that she would suffer form of serious harm, if returned to Taiwan.
In this context, it engaged with her contention that, as a Burmese born person, of Chinese ethnicity, she was liable to some form of discrimination in the workplace. However, the Tribunal did not accept that this form of discrimination, if it actually occurred, which was not necessarily accepted, would, of itself, amount to persecution.
It reached this decision on the basis of country information available to it regarding the political and legal situation prevailing in Taiwan, namely that it was a country which had anti-discrimination laws applicable to both workplaces and generally and was otherwise a democratic and pluralistic society. In general terms, it accepted a person, with the applicant’s attributes, might suffer less favourable treatment than others in Taiwanese society but it found that this did not amount to persecution.
Equally significantly, it found that the applicant had been able to travel freely to and from Taiwan and had obtained educational qualification and employment in that country. As such, in subjective terms, it found she had not previously been subject to persecution and was unlikely to do so in future.
These are findings of fact. Given the evidence available to it, I do not think that the findings of the Tribunal, when fairly read, can be described as illogical. In addition, it is apparent that the Tribunal considered correctly the jurisdictional parameters of the decision, which it was required to make, regarding whether the applicant met the prerequisites of a refuge.
In this context, the applicant does not contend that the Tribunal failed to grapple with a discrete aspect or integer of her claim or failed to give some part of it proper consideration. Rather, she merely asserts that the finding is unsupported. It is not for this court to substitute its own findings of fact for those of the Tribunal.
It is clear that the failure of a decision-maker to deal with a claim or part of a claim may also constitute a jurisdictional error. A migration decision-maker will fall into jurisdictional error if it fails to constructively deal with an aspect of a claim for protection which squarely or clearly arises on the material before it.
In the present case, there is no suggestion that the AAT failed to engage with each aspects of the applicant’s case or did not apply a sufficient level of intellectual rigour to her submissions. In my view, a fair reading of the reasons indicate that they are comprehensive in nature and each aspect of the applicant’s case has been properly considered.
As the Full Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.[25]
[25] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [47].
In my view, each aspect of the applicant’s case, which was potentially dispositive of it, has been actively and properly considered by the Tribunal and in terms of those factors having the propensity to expose the applicant to a real chance of suffering significant harm, if returned to Taiwan, comprehensively rejected.
In my view, it cannot be said that the Tribunal has reached a decision based on any misconception of the legal principles applicable to it, or that its evidentiary conclusions can be characterised as being illogical or unreasonable to such an extent as to constitute an error of jurisdiction, rather, in my view, the Tribunal properly discharged the jurisdiction imposed upon it.
Ground 2 is a simple assertion that the applicant was not accorded procedural fairness, by the Tribunal and therefore its decision is vitiated on the basis of legal unreasonableness. In my view, this ground cannot be made out, when the procedural history of the matter is considered.
Firstly, the applicant was invited to appear before the Tribunal and provide evidence and submissions as she saw fit in accordance with sections 425 and 425A of the Act. In addition, when the applicant requested a deferral of the case, on the basis of unparticularised grounds of ill-health, the Tribunal did postpone the hearing, albeit for a comparatively short period of time.
The Tribunal was not obliged to accept a medical certificate bearing a generic claim of ill health without demur. It was entitled to find the certificate, in these circumstances, to be unacceptable.[26] In particular, thereafter, the applicant did not provide any evidence as to why she could not appear before the Tribunal, in the context of a detailed diagnosis and disposition of her symptoms. Thereafter, she did not reiterate any claim of incapacity and the hearing proceeded without any subsequent complaint of irregularity.
[26] See MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 at [13] per Davies J.
In these circumstances, in my view, the record of the AAT indicates that the applicant was given a proper opportunity to appraise it of all the issues, which were likely to be relevant to the disposition of her case. In this context, the Tribunal’s decision cannot be characterised as being legally unreasonable.
This is a consequence of the nature of the earlier decision, before the Ministerial Delegate, in which information germane to the situation of individuals analogous to the applicant was raised with her. As such, in my view, there was no new information, which considerations of procedural fairness required the Tribunal to raise with the applicant in the hearing before it.
Ground 3 is difficult to understand, which of itself provides grounds for its dismissal, given it is not the responsibility of the court to try to distil a case on behalf of any applicant concerned or attempt to make a case on their behalf. In dismissing this ground, it is sufficient to point out that the Tribunal is not required to provide any comparison case but must approach each case coming before it on an individualised basis in respect of its own idiosyncratic circumstances.
In this case, I am satisfied that a fair reading of the AAT’s decision, which in my view is comprehensive and deals with each integer of the applicant’s claim for protection logically and coherently, did approach the matter as required of it in order to discharge the jurisdiction conferred upon it. It considered the applicant’s claim for protection pursuant to the relevant provisions of section 36(a) & (aa) of the Act and the relevant definitions of harm and persecution in the applicable section outlined above.
For these reasons, the application must be dismissed. The first respondent seeks costs in an amount of five thousand dollars ($5,000.00), which is less than the amount prescribed by the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021. I will make an order to this effect.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 14 October 2022
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