AJS19 v Minister for Immigration
[2019] FCCA 219
•5 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJS19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 219 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – partner visa – s.116 of the Migration Act 1958 (Cth) – where Applicant convicted of contravening family violence order – jurisdictional error – writ of certiorari issue – writ of mandamus to issue. |
| Legislation: Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth), r.2.43 |
| Cases cited: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Re the Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | AJS19 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2433 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 30 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kelly |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Tran |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
A writ of Certiorari issue quashing the decision of the Second Respondent made on 9 October 2017.
A writ of Mandamus issue requiring the Second Respondent to hear and determine the application according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2433 of 2017
| AJS19 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) to affirm a decision of a delegate of the First Respondent to cancel the Applicant’s (subclass 820) spouse visa under s.116 of the Migration Act 1958 (Cth) (‘the Act’).
The application filed 13 November 2017 contained three grounds of review. The Applicant did not press the second ground of the application. The first and third grounds, on which the Applicant proceeded, are as follows:-
“1. The tribunal failed to consider a relevant consideration, insofar as it considered the hardship to the Applicant of returning to Burma, in isolation of and without considering:
a. the Applicant’s claims he would suffer serious or significant harm on return to Burma;
b. the impact of the Applicant’s injuries following a serious car accident and his ability to access medical care in his home country.
3. The tribunal further failed to carry out the task required by s 116(1)(g) of the Act by:
a. misdirecting itself as to the potential consequence of cancellation for the applicant at [27] of its decision and thereby making a finding on the likelihood of indefinite detention that was not supported by evidence, not open on the material, illogical and unreasonable;
b. failing to address or turn its mind to the risk of harm the applicant might face if he returned to Burma as recorded at [32] of its decision, based on the erroneous belief that this issue could be dealt with via the protection visa assessment process.”
The First Respondent submits that no jurisdictional error attends the decision of the Tribunal and that the application should be dismissed with costs.
Background
The Applicant is a Myanmar national of Chin ethnicity, born in May 1973. In January 2014, the Applicant entered Australia holding a Prospective spouse visa. The Applicant’s future wife was a widow with two children with whom the Applicant had commenced a relationship some time in excess of one year prior thereto. Following the Applicant and his wife’s marriage on 9 March 2014, the Applicant was granted a (Class UK) Partner (subclass 820) spouse visa (‘the partner visa’).
On 20 November 2015, the Applicant was convicted in the Ringwood Magistrates’ Court of contravening a family violence order and was fined $500. On 9 June 2016, the Applicant was convicted of two counts of contravening a family violence order and was sentenced to a 12 month Community Corrections Order.
On 1 February 2017, the Applicant was given a Notice of Intention to Consider Cancellation (‘the Notice’) of his partner visa under s.116(1)(g) of the Act and reg.2.43(1)(oa) of the Migration Regulations 1994 (Cth) (‘the Regulations’). The Notice was provided by the Department of Immigration and Border Protection (‘the Department’).
Section 116 of the Act was, relevantly, as follows:-
“116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or
…
(g) a prescribed ground for cancelling a visa applies to the holder.”
Regulation 2.43(1)(oa) of the Regulations was, relevantly, as follows:-
“2.43 Grounds for cancellation of visa (Act, s 116)
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
…
(oa) in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)—that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));
...”
By letter of 27 February 2017, the Applicant responded to the Notice, which included an invitation to comment on the intention to consider cancellation of the partner visa. In that correspondence to the Department, the Applicant said, amongst other things:-
“I am writing in response to your letter dated 1st February 2017 regarding a Notice of Intention to Consider Cancellation under Section 116 of the Migration Act 1958.
I arrived in Australia on the 14th January 2014 and I married my wife in Melbourne on the 9th March 2014. I lived with my wife and her children from a previous marriage – two sons who are aged 20 and 21 years.
I started to drink heavily at home and I conflicted with my eldest stepson who also drank heavily. My wife was worried that we would fight and hurt each other so she called the police who took out an intervention order against me. I did not understand that I could not visit my wife and when I was drunk I would try to see her by going to the house. I broke a window on one occasion as I was trying to get into the house. I have never been violent against my wife.
My wife and I love each other and we want to repair our marriage and live together. My wife’s children are married and they no longer live with my wife. I understand I have a drinking problem and as part of my Community Based Order I am required to undergo treatment for alcohol abuse as well as a mental health assessment. I am also required to attend an Offending Behaviours Program.
When I married my wife in Malaysia I had escaped from Burma because I was being persecuted by the military in my country. I cannot return to Burma because I am afraid that this will continue. I no longer have any immediate family members in Burma that can help me as my parents have passed away. I would like to stay in Australia and build my family life here. I am very sorry for my behaviour and I will do everything I can so that I change my behaviour, care for my wife and contribute to the wider society…”
The Applicant’s wife also wrote to the Department in respect of the possible cancellation of her husband’s partner visa in correspondence dated 27 February 2017. Her correspondence stated, relevantly, as follows:-
“I am writing to request that you do not cancel my husband’s visa. We love each other and wish to live together and build a life here in Australia. We are trying to have children together.
I called the Police because my husband was drinking heavily and I did not want him to drink any more. My son and my husband would argue with each other and I was frightened they would hurt each other.
My husband has never been violent towards me. I felt very embarrassed in my community and church because of his drinking and I thought that he would stop drinking if I involved the Police.
He is keen to obey the court order and seek treatment for his drinking and I will support him to do this.
I will attend court on the 7th March 2017 so that the Order can be varied and my husband returned home to live with me…”[1]
[1] Court Book, 30.
On 7 March 2017, the Ringwood Magistrates’ Court varied the earlier Intervention Order which had precluded the Applicant from residing with his wife. The Applicant was permitted to again live with his wife provided he was not affected by alcohol. The Applicant and his wife remained living together until the Applicant was taken into immigration detention (as described below). The Applicant’s wife now visits the Applicant daily.
The Applicant’s pastor also submitted a letter to the Department, in support of the Applicant, which said, amongst other things, that the husband had:-
“… worked very hard to change his behaviour over the past years. That include[ed] giving up alcohol. I have personally seen the positive effects of this on a daily basis…”[2]
And thereafter, in part, and as to the Applicant:-
“If he is sent back to Myanmar, the Myanmar soldiers can arrest him at any time. The lack of government action to ensure our safety means that he can still be arrested and prosecuted by the military and have charges laid against him. There is no appropriate legal system or official arrangement to ensure our safety and protect us from all forms of abuses and mistreatments by authority, Myanmar soldiers and even local people if we return home. Lack of proper legal system also opens the door for any Myanmar soldiers’ patroling or dutying in the areas to mistreat and torture us.
The Myanmar soldiers interrogate, punish and even kill the local people without anyone noticing or legal actions against them. This is the biggest threat for many people including us who has different ethnicity, religion and language. As an ethnic minority group, the military can easily notice us by listening to our accent when we speak Burmese language to respond to their questions. If the military patroling or stationing in the areas notice that we have returned from a foreign country, they would come after us and accuse us for attempting to escape the country by betraying or tarnishing the country’s reputation and give us severe punishment. We can also be taken into custody or face other sorts of punishments such as force labour and being porters/ carrying their goods in war zones where the military force and ethnic armed groups are battling. This is known to be one of the military punishments against people who are arrested after they returned secretly to Myanmar in the past.
Furthermore, I cannot relocate [the Applicant] and live safely in other parts of the country because Myanmar has many different ethnic groups and most of them speak their own dialects within their own territory. Since we cannot speak any other dialects besides Hakha Chin it would be very difficult for us to hide or avoid contact with local people and authorities while living our daily lives, for example shopping for foods or acquiring identity cards. Disqualification of acquiring required IDs can have severe consequences such as denial of employment, proper accommodation and education for our children. Sooner or later, either the local people or Burmese soldiers would notice our presence. After carefully assessing all potential threats and their consequences, I can assure you that our life is in great danger and we are not safe to return home by any means.
Until the time he fled the country the Burmese soldiers were powerful and committed abuse against the minority people like us (Chin) based on our race, religion and nationality. It is the fact that we are ethnic minority people. Christian and ethnic Chin therefore it is firmly believed that the Burmese soldiers intentionally abused us. He fears to return to Myanmar. The ethnic group welcomes the ceasefire agreement, but the international community must recognise that this is only the first step. So far there has been no discussion about troop withdrawal from Chin State. As long as there is a heavy military presence, I expect human rights abuses to continue. There are still discrimination and forced assimilation against ethnic and religious minorities. I therefore, kindly request you to consider for him…”[3]
[2] Court Book, 33.
[3] Court Book, 33-34
On 14 March 2017, a delegate of the Minister decided to cancel the Applicant’s partner visa. The Applicant applied within time to the Tribunal for a review of the delegate’s decision.
On 7 May 2017 the Applicant was hit by a car. He was left unconscious. His injuries were constituted by nine broken ribs and serious head injuries. He was required to see a specialist. He had follow-up appointments and rehabilitation.
In August 2017, the Applicant was taken into immigration detention. His medical appointment attendances and rehabilitation attendances are unable to be attended to whilst he is in detention.
On 6 and 9 October 2017, the Applicant appeared before the Tribunal and gave evidence and presented submissions. The hearing was conducted with the assistance of an interpreter in the Chin and English languages. Oral evidence in support of the Applicant was also given by the Applicant’s wife. Both she, her younger son and the President of the Australian Chin Community (Eastern Melbourne) Inc. additionally provided letters of support to the Tribunal on behalf of the Applicant. The Applicant’s wife’s son stated in his correspondence of 25 August 2017, relevantly, as follows:-
“I know that my step-father, [the Applicant], really loved my mother [X]. He is a good, kind and he is a peaceful man. He never hit my mother nor be violent to her in any manner, and he never gave us any problem to us while we were living together.
My step-father used to drink alcohol and so did my elder brother [Y], and they used to argue over minor issues when they were both drunk. My step-father has a habit of giving us advice and telling us what to do and not to do when he is drunk, but my brother hated this and did not want him to tell us what to do when he was drunk. Because of this, they had some arguments within our family. When [the Applicant] and my mother had some [sic] over his drinking, we were all sad and it effected all of us emotionally. My mother was worried that my brother and step-father might have physical fights over these arguments and she called police for a number of times to stop their arguments and to avoid fights that might have occurred between them.
However, my step-father no longer drink alcohol and he was living happily with my mother, and we are also pleased and have peace in mind to see them living together so happily. As I have my own family, my wife and my child, to look after, we have to live on our own and we could no longer comfort or look after my mother as before. It is my step-father who looked after her in times of sickness and able to comfort her in times of life struggles. We could have peace of mind only when my step-father [the Applicant] is with him. [sic]
If my step-father [the Applicant] is to be sent back home to Myanmar, his life will be in grave danger and he could not go back home. He is a refugee and he no longer have parents to live with. It is also unimaginable for his wife [X] to be a widow again.”[4]
[4] Court Book, 78.
By decision dated 9 October 2017, the Tribunal affirmed the decision to cancel the Applicant’s visa. Notification of the decision was provided to the Applicant by email to his authorised recipient on 10 October 2017.
The Tribunal’s Decision
The Applicant concedes that by operation of reg.2.43(1)(oa) of the Regulations, s.116 of the Act is engaged. Thus, the Applicant takes no issue with the Tribunal’s satisfaction that grounds for cancellation under s.116(1)(g) of the Act had arisen. There was evidence before the Tribunal that the Applicant had been convicted of offences, evidence which was indeed confirmed by the Applicant’s own evidence to the Tribunal.
The Tribunal, in its Statement of Decision and Reasons (‘the Decision Record’) however noted accurately, as set out in paragraph 12 of the Decision Record, that the grounds for cancelling the Applicant’s partner visa under s.116(1)(g) of the Act and reg.2.43(1)(oa) of the Regulations do not require mandatory cancellation. It was a matter for the exercise of discretion by the Tribunal.
The Tribunal noted under the heading “Consideration of discretion”, and as set out in paragraph 13 of the Decision Record, that there were no matters specified in any Act or Regulations that were required to be considered in relation to the exercise of a discretion to cancel the partner visa. However, in engaging in that consideration, the Tribunal noted that it had regard to the relevant circumstances, including but not limited to matters identified in the “general visa cancellation powers” division of the Department of Immigration & Border Protection Procedures Advice Manual (‘PAM3’).
The Tribunal made the following findings:-
a)the Tribunal formed the view that the Applicant had deliberately minimised the nature of the problems in his relationship with his wife; and
b)the Tribunal found the Applicant’s oral evidence that he had no arguments with his wife to be unpersuasive, given the existence of the family violence order.
The Tribunal did not accept that the Applicant was unaware of the family violence order that prevented him from seeing his wife, an order which he contravened. Further, the Applicant’s evidence to the Tribunal was that the terms of the family violence order had to be changed to enable him and his wife to live together, which suggested to the Tribunal that the initial order did not allow cohabitation. The Tribunal formed the view that the Applicant had not been truthful in his evidence to the Tribunal when stating the relationship never broke down.
The Tribunal was prepared to accept that at the time of hearing, the Applicant and sponsor continued to maintain a spousal relationship and that, therefore, the Applicant was able to fulfil the purpose of his partner visa. The Tribunal noted, however, that the relationship appeared to have broken down shortly after the Applicant’s entry into Australia and only resumed recently after his visa was cancelled.
The Tribunal was aware of no adverse information regarding the Applicant’s compliance with visa conditions nor was the Tribunal aware of any conduct towards the Department which was adverse to the Applicant’s case.
The Tribunal noted that the Applicant claimed to be unable to return to Myanmar because, as set out in paragraph 20 of the Decision Record:-
“…he was subjected to persecution and he is afraid this will continue. The Tribunal is mindful that the applicant is able to apply for the protection visa, if he believes he will be subjected to persecution in his home country, and his evidence to the Tribunal is that he has done so.”
The Tribunal later said, in this regard, relevantly, the following:-
“27. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant may become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention and his evidence to the Tribunal is that he has made an application for a visa that may be granted to him in Australia. There is no suggestion that the applicant will be indefinitely detained. The applicant may be eligible to apply for a Bridging visa and he should be allowed to remain in Australia while his other application is being processed.
…
30. The applicant claims in his response to the NOICC and written evidence to the Tribunal that he was persecuted in Burma and cannot return to Burma for that reason. The applicant said that he used to live in Malaysia before he came to Australia but he lived there illegally and has no right to return to Malaysia. The applicant said that he has no passport to return to Burma. The applicant claims he was recognised as a refugee by UNHCR. The Tribunal acknowledges the applicant’s evidence but is of the view, however, that the applicant is eligible to apply for a protection visa and this process would enable the assessment of the applicant’s claims.
31. In COT15 v MIBP (No. 1) [2015] FCAFC 190 at [38], the Full Federal Court upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a protection visa. The Full Court noted that the Act contemplates that those obligations will be considered in the context of a protection visa application. In MIBP v Le, the Full Federal Court, agreeing with COT15 v MIBP (No. 1), held that an assessment of Australia’s non-refoulement obligations is not a mandatory consideration where it is open for the visa holder to apply in Australia for a protection visa, even if the visa holder had previously been recognised as a refugee for the purposes of the Refugees Convention. As such, the Tribunal does not consider that the full assessment of the applicant’s protection visa is required for the purpose of the present decision and the applicant’s evidence to the Tribunal is that he has already made an application for the protection visa.
32. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation because the applicant is eligible to apply for a protection visa and, if it is determined that Australia has protection obligations towards the applicant, such obligations would be met.”
Otherwise, the Tribunal acknowledged that the Applicant had been living in Australia for about four years and accepted that it may cause him some hardship if he was required to leave Australia. Further hardship may be caused to him and his wife if his partner visa was cancelled and he was required to be separated from his wife. The Tribunal noted that the Applicant would face some hardship leaving Australia and re-establishing himself in Myanmar but that he was not unable to do so.
The Tribunal noted evidence that the Applicant had been involved in a car accident and required ongoing treatment. As a consequence of the Applicant suffering:-
“…significant injuries and require[ing] ongoing treatment.”[5]
The Applicant did not, however, satisfy the Tribunal that such treatment would not be available to him whether or not his partner visa was cancelled.
[5] Decision Record, 34.
Considering the circumstances as a whole, the Tribunal concluded that the visa should be cancelled.
Consideration
By his written submissions, the Applicant identifies three considerations that the Applicant says were not taken into account by the Tribunal and should have been, namely:-
a)his claim to fear persecution in Myanmar and the consequences for him on return to Myanmar of that persecution;
b)the impact of his Chin ethnicity and dialect; and
c)his health and ability to obtain adequate medical care in Myanmar.
Claim to Fear Persecution
The Applicant argued that when considering the degree of hardship that may have been caused to the Applicant if his visa was cancelled, the Tribunal noted the Applicant’s claim that:-
“…he cannot return to Burma because he was subjected to persecution and he is afraid this will continue.”[6]
Other than note this claim, the Applicant argued, the Tribunal did not consider it.
[6] Decision Record, 20.
The First Respondent argued the Tribunal did squarely refer to the Applicant’s claim to fear harm in Myanmar. The Court accepts that the Tribunal made reference to the claim of the Applicant, but finds as submitted by the Applicant, that the Tribunal failed to consider those claims.
None of the matters raised by the Applicant or raised by others on his behalf, in evidence before the Tribunal, referred to Australia’s non-refoulement obligations in terms. The Applicant very clearly however articulated (as a matter against cancellation of his partner visa) claims that he feared harm in a “practical and day to day sense”[7], should he be forcibly returned to Myanmar.
[7] BCR16 v Minister for Immigration and Border Protection & Anor [2017] FCAFC 96, 32.
The Tribunal found it unnecessary to consider whether non-refoulement obligations were owed to the Applicant in the course of its hearing because the Applicant was entitled to apply for a protection visa. The statement by the Tribunal that the Applicant was able to apply for a protection visa was correct. Indeed, the Applicant had applied for such visa. However the legislative scheme operating in respect of the partner visa, and its cancellation, provided to the Tribunal a wide discretion to revoke a cancellation. The risk of significant harm to the Applicant on return to Myanmar or a real chance of persecution, whether for a Convention reason or otherwise, was a matter to be weighed by the Tribunal in determining whether to affirm the decision of the delegate. This exercise of discretion is, as was said by the majority in BCR16 v Minister for Immigration and Border Protection & Anor [2017] FCAFC 96 (‘BCR16’), “quite distinct from the task in s 65”.[8]
[8] Ibid, 49.
The Tribunal made no findings of fact about the Applicant’s claims to fear persecution and made no findings about the impact of the Applicant’s claims of persecution on the degree of hardship suffered by the Applicant including “in a practical and day to day sense”[9] if he were forced to return to Myanmar.
[9] Ibid, 32.
In BCR16, the majority judgment of Bromberg and Mortimer JJ identified jurisdictional error of this type in the following paragraphs:-
“61. Although reasonable minds may differ on appropriate characterisations of jurisdictional error in many circumstances, in our opinion the appellant is correct to submit in this case the argument is not about mandatory relevant considerations. That is, it is not to contend that the scope, subject-matter and purpose of the revocation power in s 501CA(4) requires that Australia’s non-refoulement obligations be taken into account (see Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 39-40 (per Mason J)). This is a distinct point from the one made by the Full Court in NBMZ.
62. Rather, the error can be characterised as either a denial of procedural fairness or as a failure to carry out the task required under s 501CA(4). In relation to denial of procedural fairness, see Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42], although in that case the procedural fairness challenge failed for reasons summarised by Tracey J at [44]-[47]. In our opinion, that characterisation would not be appropriate in the present case, because this was not a situation where, in her decision, the Assistant Minister took into account material from another source which was critical and relevant to the appellant personally, but did not disclose it. Rather, the Assistant Minister formed a view she did not have to address, or turn her mind to, the risk of serious or significant harm that might be faced by the appellant on return to Lebanon because that could be dealt with through another process, if the appellant chose to apply for a protection visa. This was the Assistant Minister’s reasoning – no more than that, and as the authorities establish, she generally is not obliged to disclose her reasoning process ahead of making a decision or to provide a “running commentary”: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [48]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9] (French CJ and Kiefel J); Durani v Minister for Immigration and Border Protection [2014] FCAFC 79; 314 ALR 130; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [92]-[93].
63. The error could also be characterised as a failure to carry out the task required under s 501CA(4) which requires consideration of whether there is “another reason” to revoke the visa cancellation. The appellant submitted that where a person raises “another reason” under s 501CA(4)(b)(ii), part of the discharge of the Assistant Minister’s task is to consider the reason raised, on a correct understanding of the law. He relied on Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [54], per Robertson J.
…
72. Here, as we have noted several times in these reasons, the appellant did not describe the harm he feared by reference to “non-refoulement”. It may well be the case that the harm he identified was not viewed as having a sufficient likelihood to bring him within either kind of international protection obligations. Or, it may be the nature of the harm he feared was necessarily outside either kind of international protection obligations. The Assistant Minister’s reasons disclose no understanding of those possibilities. Rather, her reasons betray two misunderstandings: first that the appellant was identifying non-refoulement obligations as a concept when he had not; and second that the harm he feared was necessarily within that protected by Australia’s international non-refoulement obligations. Whether or not the harm the appellant feared had a “private quality” as the harm identified in Goundar, there were other reasons it might be harm outside the kind covered by Australia’s international non-refoulement obligations. Nevertheless, the harm as the appellant expressed it was put forward by him as a “reason” the Assistant Minister should revoke the cancellation. She did not consider it. Her failure to do so flowed from the misunderstandings we have identified and is properly characterised as an error of a jurisdictional kind because it went to the lawful discharge of her task.”
The Court finds the Tribunal’s failure to consider the harm the Applicant feared, which went beyond refugee and complementary protection criteria, was a jurisdictional error. The Tribunal should have considered whether the fear of harm the Applicant said he might experience on return to Myanmar was a reason to exercise the discretion under s.116 of the Act in his favour.
Chin Ethnicity and Dialect and Medical Care
The Applicant argued that the Tribunal, in reaching its conclusion, did not expressly have regard to the Applicant’s evidence of his Chin ethnicity and dialect. Additionally, the Tribunal did not expressly have regard to evidence of the Applicant’s health (following his serious car accident) and nor did it expressly consider the Applicant’s ability to obtain adequate medical care in Myanmar. All of these matters, the Applicant argued, were capable of supporting the Applicant’s contention that he would not be able to re-establish his life in Myanmar. They were all matters, the Applicant further argued, that bore directly on the assessment of the hardship that may have been caused to the Applicant if the visa was cancelled.
The First Respondent conceded that the matters referred to by the Applicant were not expressly referred to in the decision of the Tribunal. Nevertheless, the First Respondent argued that the Applicant’s Chin ethnicity and dialect were not referred to on the basis that the Tribunal simply did not consider them material to the decision.[10] Further, that where the Tribunal did refer to this matter, in the context of the Tribunal referring to a letter from the Applicant’s pastor, that this sole reference was subsumed within the Tribunals’ consideration of hardship at paragraph 21 of the Decision Record. The Court rejects this submission.
[10] Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24.
In failing to have regard to these centrally relevant considerations, being evidence going to a material issue in the proceedings,[11] the Court finds the Tribunal erred. These matters were highly relevant to the degree of hardship the Applicant might suffer on his return to Myanmar and were matters that required consideration. They were matters which went beyond claims in respect of a protection visa.
[11] Re the Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 65.
The Court finds the application made out in that jurisdictional error attends the decision of the Tribunal. The Court shall make orders as sought by the Applicant.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 5 February 2019
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