AKP22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 74
Federal Circuit and Family Court of Australia
(DIVISION 2)
AKP22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 74
File number(s): BRG 78 of 2022 Judgment of: JUDGE EGAN Date of judgment: 8 February 2023 Catchwords: MIGRATION – Whether the failure to conduct a hearing in a face to face context either in person or via video was procedurally unfair – where audio recording of hearing before Tribunal clearly showed that the applicant was crying, emotional and in distress – where adverse credibility findings were made against applicant - application granted. Cases cited: ABT17 v Minister for Immigration [2020] HCA 34
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 at [28].
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 1 February 2023 Date of hearing: 1 February 2023 Solicitor for the Applicant: Ravi James Lawyers Counsel for the Applicant: Mr A Krohn Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
BRG 78 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AKP22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
8 February 2023
THE COURT ORDERS THAT:
1.The Amended Application for Review filed on 7 September 2022 be granted.
2.The decision of the Administrative Appeals Tribunal made on 19 January 2022 be quashed.
3.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
4.For the purpose of the Administrative Appeals Tribunal again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 7 September 2022.
5.The First Respondent pay the Applicant’s costs of and incidental to the application for review fixed in the amount of $8,371.00.
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 Egan
Introduction
The applicant is a citizen of Malaysia who arrived in Australia on 9 August 2015 as the holder of an Electronic Travel Authority (ETA) Subclass 601 Visitor Visa.
The applicant became an unlawful non-citizen on 9 November 2015 and remained so until 7 October 2016 when she applied for a Class XA – 666 Protection Visa. She was at that time granted a Bridging Visa C as a result of her having applied for such Protection Visa.
On 26 May 2017, the applicant was notified that a delegate of the Minister had refused her protection visa application.
On 19 June 2017, the applicant applied for the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the delegate.
By an email sent on 30 November 2021, the Tribunal advised the applicant that she was invited to attend a hearing to be held personally before Member Chapman at 12.30pm on 10 January 2022 at the offices of the Tribunal in Brisbane. [1] The clear preference of the Tribunal was for there to be a face to face hearing.
[1] Court Book (CB) pp. 151 – 154.
A response to the hearing invitation was forwarded to the Tribunal by the applicant. In that response, the applicant indicated that she would be appearing at the hearing before the Tribunal, as scheduled, with her husband. [2]
[2] CB pp. 157 – 159.
On 5 January 2022, the applicant was contacted by the Tribunal by email and advised that the Member had decided to change the “hearing mode” from an in-person hearing on 10 January 2022 to a telephone conference hearing due to the then COVID situation in Queensland. [3]
[3] CB pp. 161 – 163.
On 6 January 2022, the applicant sent an email to the Tribunal which was in the following terms: [4]
“Dear Officer Karrie H
I would appreciate if the bearing session can remain in person, face to face as i believe hearing interview trough telephone conversation might not do justice and i might not be given enough chance to explain my real situation. I understand the situation of covid19 cases that increasing in Queensland however i am ready to present myself, ready to comply with straight SOP and importantly, i don’t feel comfortable to do it over the phone.
I am agreed in previous reply to supply any new information however i am facing difficulties and hardship to gather all the documents and at the same time i feel so depressed and helpless because of this. i really need your understanding in this matter however at the end of the day, I understand all decision still up to your side. Pls give me a chance to get the real picture of my case.
Thank you
[name omitted].”
[4] CB p. 164.
In a reply email sent on 6 January 2022, the Tribunal wrote as follows: [5]
[5] CB p. 166
“Dear Miss [name omitted]
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT and I refer to your email correspondence of 6 January 2022.
Following careful consideration, the Member has decided to hold the hearing by remote means and not in person. This is due to the prevailing COVID-19 situation.
If you wish to participate in a Video hearing please advise us not later than 12:00pm (Qld time) on 7 January 2022. If we do not receive advice from you by that time, indicating you wish to participate in a Video hearing, the hearing will proceed by telephone as previously advised to you.
If you have any questions or are experiencing problems opening the document/s attached to this email message, please contact us immediately at [email protected], or call 1800 228 333.
Please refer to the AAT website for information about temporary changes in place to respond to the impact of COVID-19 on services: covid-19-pandemic
Yours sincerely,
Karrie H
For the Registrar”
As submitted on behalf of the first respondent, the applicant did not reply to the Tribunal’s email of 6 January 2022. The hearing proceeded by way of a telephone hearing on the scheduled 10 January 2022 hearing date.
On the question of the hearing before the Tribunal proceeding by telephone, as opposed to either in-person or by video, the Tribunal at [11] – [12] of its reasons said as follows:
“[11] The applicant appeared by telephone before the Tribunal on 10 January 2022 to give evidence and present arguments. She confirmed to the Tribunal that she was comfortable proceeding with the hearing by telephone, although she preferred to have it conducted in person. The Tribunal discussed with the applicant the reasons for utilising a telephone hearing and the applicant agreed to participate in a telephone hearing. The Tribunal also took evidence by telephone from the applicant's husband, [name omitted]. He required the assistance of an interpreter in the Tamil and English languages to give his evidence. Mr X confirmed he understood the interpreting service. The applicant also requested at the hearing that evidence be taken by telephone from X, who apparently resides in The Philippines. The Tribunal attempted to contact X by telephone, to no avail.
[12]On balance, the Tribunal is satisfied that the applicant received a fair and reasonable hearing using the telephone method. The Tribunal attempted to contact X, although no prior notification had been given. Furthermore, the Tribunal notes that the applicant displayed an excellent command of the English language and X was provided with an interpreter in his native Tamil language. Of note, the hearing length was approximately four and a half hours (excluding breaks) and the Tribunal is satisfied that the applicant was provided with a significant opportunity to be heard using a clear telephone line.”
The Court noted that the Tribunal found that it was satisfied that the applicant had received a fair and reasonable hearing using the telephone method “on balance”. On one view, the very use of that term by the Tribunal was suggestive of there being at least some uncertainty on the part of the Tribunal as to whether a fair and reasonable hearing had been conducted or not.
On 19 January 2022, the Tribunal decided to affirm the decision of the delegate not to grant the Protection Visa.
Grounds of Review
On 15 February 2022, the applicant’s lawyers filed an Originating Application for Review of the decision of the Tribunal. By an Amended Application for Review filed on 7 September 2022, the applicant relied upon the following grounds of review:
1.“The Second Respondent ("the Tribunal") fell into jurisdictional error in that it erred in interpreting or applying the applicable law.
Particulars
(a) The Tribunal did not give the Applicant an opportunity to give evidence and to present arguments as required by section 425 of the Migration Act 1958 ("the Act"), and did not conduct the review as required by section 412, 414, 424, 425, 427, 429A and the other provisions of Part 7 of the Act. This was because, in all the circumstances, the Tribunal erred in not giving the Applicant the opportunity to see and to be seen by the Tribunal at a hearing, as well as to hear and to be heard, when:
(i)the Applicant had not been interviewed by the Minister's delegate;
(ii)the Applicant was unrepresented during the application for the visa and at the hearing by the Tribunal;
(iii)the Tribunal determined to conduct the hearing by telephone, against the expressed wishes of the Applicant (Court Book ("CB") 164-166; CB 184, [60]), rather than in person or by video conference;
(iv)the Applicant's credibility was critical to the determination of the review by the Tribunal. (CB 185-189, [71)-(791)
(b) The Tribunal erred in not correctly interpreting or applying the terms "real chance" of persecution as required by sections 5H(1), 5J(1)(b) and 36(2)(a) of the Act, and the term "real chance" of significant harm" in section 36(2)(aa), shown by its findings and conclusion that:
(i)"On balance, the Tribunal is satisfied that the applicant has fabricated her claims for protection" (CB 186-187, [71), emphasis added.)
(ii)"On balance, the Tribunal does not accept the applicant was under any misapprehension as to her visa status upon arrival or was prevented from making her application for protection." (CB 187, [72], emphasis added.)
(iii)"On balance, the Tribunal is satisfied that the applicant and Mr Jude are engaged in a contrivance to enhance their prospects of a migration outcome, rather than a genuine relationship." (CB 188, [76), emphasis added.)
(c) The Tribunal had regard to the matters prescribed by Regulation 1.15A of the Migration Regulations 1994 ("the Regulations") for section 5F(2) 5F(2)(a), (b), (c) and (d) of the Act, that is for the purpose of determining whether persons were spouses, but this was irrelevant and not necessary in order for the Tribunal to find that the Applicant was owed protection under section 36(2)(a) or 36(2)(aa) of the Act. (CB 185-188, [63], [66], [76], [77])
2. The Tribunal fell into jurisdictional error in that it had regard to irrelevant considerations.
Particulars
(d) The Tribunal had regard to whether the Applicant and her husband met the requirements of the Regulations as "spouses" or "partners", but this was not a necessary or relevant criterion for determining their relationship for the purposes of the review by the Tribunal. The Applicant refers to and repeats the matters set out in Particular (c) to Ground 1. (CB 185-188, [63), [66], [76), [77])
3. The Tribunal fell into jurisdictional error in that it was legally unreasonable
Particulars
a) The Tribunal was unreasonable in conducting the hearing of the matter by telephone in all the circumstances. The Applicant refers to and repeats the matters set out in particular (a) to Ground 1.
b) The Tribunal was unreasonable to reject that Applicant's claim that she was a Lesbian and had been in a Lesbian relationship. This was unreasonable because of all the circumstances, including the fact that the applicant was unrepresented when she applied for the visa, her English was not perfect, she did say that her best friend was a Lesbian (Q. 90 of the application for the visa), and the matter was of some delicacy where the applicant might well have hesitated to say that she was a Lesbian or in a Lesbian relationship. Indeed, the claim to protection was the apparent connection between the applicant and her Lesbian best friend, and that was made plain in the application for the visa. The Applicant also refers to and repeats the matters set out in Particular (b) to Ground 1. (CB 186-188, [71]-[77])
c) The Tribunal found the delay in applying for the protection visa, and in making some claims, meant that the claim for protection was not credible. (CB 187-188; Decision, [72], [751, [77]) While delay is seeking protection is a factor reasonably to be considered by the Tribunal, the Tribunal did not have a sufficient basis to determine, positively, that the claims for protection have been fabricated. (CB 186-187, [71])
d) The Tribunal was unreasonable in its findings:
i.Of “the vagary and fancifulness of certain claims” (CB 186-187, [71])
ii.That “The applicant’s narrative regarding having been run off the road by gangsters whilst driving also contained much vagary.” (CB 187, [73])
iii."The Tribunal does not accept the genuineness of any of these claims given the manifest delay in the applicant raising them, in combination with their vagary and lack of persuasive supporting evidence." (CB 188, (75])
(Emphasis added.)
e) The Tribunal found that the Applicant and her husband were married and had cohabited from 2017 to 2022. It was therefore unreasonable to find that it:
"... is not satisfied that the applicant and Mr Jude are in a genuine relationship. This is due to the scant detail provided to the Tribunal at hearing by both the applicant and Mr Jude concerning their relationship, with each portion of their evidence accordingly being afford low weight...." (CB 185-188, [63), [66), [76), [77)),
The Applicant refers to and repeats the matters set out in Particular (c) to Ground 1.
f) The Tribunal was unreasonable to find "nor is there persuasive evidence she is an apostate [from the Muslim faith]." (CB 189, [79])
g) Further or in the alternative to the Particulars to this Ground and to Grounds 1 and 2, the Tribunal had no logically probative basis or was otherwise unreasonable to reject all of the Applicant's claims. (CB 186-189, (71]-[79])”
Ground 1 was based upon an assertion that the Tribunal ought to have seen the applicant either in-person or by video for the purposes of any hearing. As to the former, COVID-19 restrictions then in place in Queensland would have prevented an in-person hearing. As to a video hearing, the Court finds that the applicant failed to take advantage of the Tribunal’s offer to have the hearing conducted by video as set out in its 6 January 2022 email to the applicant.
The argument advanced by Counsel for the applicant during the course of the hearing, and in written submissions was, rather, that in circumstances where the applicant was plainly emotional during the course of the hearing, the Tribunal ought not to have proceeded with a telephone hearing. It was submitted that that was particularly so in circumstances where the Tribunal subsequently made a number of adverse credibility findings against the applicant. The applicant’s written submissions in that regard were as follows:
“[27] It is possible for the Tribunal to fall into jurisdictional error by not giving the necessary opportunity to the Applicant, even if the Tribunal is not aware that the Applicant is prevented, for example by illness, from giving evidence or arguments, or understanding the issues.6
[28]In cases where credibility is important, even the Immigration Assessment Authority (which must usually conduct a review of the delegate’s decision on the papers and without getting or considering new information, or interviewing an applicant, save in exceptional circumstances7) falls into jurisdictional error if it does not get new information to bridge an informational gap. In ABT17 v Minister for Immigration and Border Protection, a case where the delegate did not interview an applicant and observe her demeanour, this has been found to require the Immigration Assessment Authority to conduct an interview:8
15.At an interview the Authority could seek answers in relation to those aspects of the appellant's evidence that troubled the Authority by raising questions which had not previously been raised with the appellant. The Authority could thus develop an informed impression of the credibility of the appellant based on his responses to such questions and an observation of his demeanour. The appellant's responses and the demeanour of the appellant inextricably associated with them would be new information relevant to his personal circumstances.
…
18.The Authority being able to exercise its powers to get and consider new information to bridge an informational gap in the review material by inviting a referred applicant to an interview in order to gauge and consider his or her demeanour for itself, the question becomes as to when if at all compliance with the implied condition of reasonableness in the conduct of the review or in the consideration and exercise of those powers might compel the Authority to adopt that course.
[29]All the more strongly than the Immigration Assessment Authority, the Tribunal is obliged to have or to seek the information it needs to conduct the review, and it has the power to seek information (section 424), to adjourn a review (section 427(1)(b)), and to allow the appearance of the Applicant or the giving of evidence by means including by video conference (section 429A(c)). In a case where credibility is in issue, as in the present matter, the Tribunal is obliged to do what it reasonably can to get the best evidence to enable it to determine that issue of credibility, including evidence of the Applicant’s demeanour by observing her at interview.
[30]The Full Court of the Federal Court has found that a decision by the Tribunal to conduct a hearing with the Applicant appearing by video link, under power conferred by the Act, was not unlawful, where the parties were widely separated around Australia.9 A telephone link for the Applicant, however, very much limits the opportunity for communication of personally important and delicate matters, and limits the ability of the Tribunal to observe the demeanour of the Applicant and witnesses.
9. Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 at [28][31]Further, the power of the Tribunal under section 429A of the Act is not to order or direct a hearing by telephone, but to allow it. That is to say that if a person other than the Tribunal seeks to have a hearing or to give evidence by telephone, the Tribunal may permit it, but the Act does not authorize the Tribunal to impose such a limitation. Dhillon’s case10 did not consider this point, and does not make any finding to the contrary of this point, at least in relation to the Tribunal determining to hold a hearing by telephone.
[32]In the present matter, the Tribunal did not conduct the review as required by the Act. This was because, in all the circumstances, the Tribunal erred in not giving the Applicant the opportunity to see and to be seen by the Tribunal at a hearing, as well as to hear and to be heard, when:
(i)the Applicant had not been interviewed by the Minister’s delegate;
(ii)the Applicant was unrepresented at the hearing by the Tribunal;11
(iii)the Tribunal determined to conduct the hearing by telephone, against the expressed wishes of the Applicant (Court Book (“CB”) 164-166; CB 184, [60]), rather than in person or by video conference;
(iv)The applicant seemed audibly distressed at significant points of the hearing;12
(v)the Applicant’s credibility was critical to the determination of the review by the Tribunal, and the Tribunal eventually determined as a positive fact that in very large part the Applicant’s claims were fabricated. (CB 185-189, [71]-[79])”
An audio recording of three parts was copied onto the Court’s Electronic Court File. Part 1 of such audio recording was marked Exhibit 2. At a point 1hr 51mins 31secs into the audio recording, immediately after having been asked a critical question by the member, namely, “What do you have to fear if you return to Malaysia?”, the applicant was heard to be crying and was obviously very emotional. That crying continued for about 5 minutes until the audio was stopped at a point 1hr 56mins 44secs into the recording.
The Court finds that after such obvious distress having been suffered by the applicant, the Tribunal ought to have adjourned the hearing and either arranged for the hearing to proceed in person, or by video, at a later date, or alternatively ought to have arranged for the matter to proceed by video. In her email of 6 January 2022 the applicant stated that she was facing difficulties and hardship in gathering up all documents that she wished to rely upon, and that she had felt “… depressed and helpless because of this”. The latter ought to have clearly flagged to the Tribunal that at least it ought to have been wary about proceeding other than in a face to face context.
The Court does not accept the submissions advanced on behalf of the first respondent that in all of the circumstances the applicant was afforded a fair hearing. The possible adverse consequences of the cancellation of the applicant’s bridging visa warranted a face to face hearing before adverse credibility findings were made. The Tribunal could have arrived at its decision in a more considered context had it done so.
The Tribunal made adverse credibility findings against the applicant in the course of its reasons. It could not be said that the Tribunal could not have arrived at a different decision had it afforded itself the opportunity of viewing the applicant’s demeanour by at least conducting the hearing by video. The Court accepts the applicant’s submissions by her Counsel that ABT17 v Minister for Immigration [6] supports the proposition that in circumstances where the non-facilitation of a face to face hearing may not enable a decision maker to best access the claims of an applicant, such decision maker should err on the side of caution by so facilitating a face to face hearing so as to ensure procedural fairness.
[6] [2020] HCA 34.
The Court finds, in the peculiar circumstances of this matter, that the applicant was denied procedural fairness and that the applicant ought to have been afforded a face to face hearing.
The Court further finds that the Tribunal fell into jurisdictional error and that such error robbed the applicant of a fair hearing.
In the light of the Court’s findings, it is unnecessary to consider Grounds 2 and 3 of the Application for Review.
The Application for Review is accordingly granted.
The Court will hear the parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 7 February 2023
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