Amo21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 307
•11 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMO21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 307
File number: PEG 116 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 11 April 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants protection visas – whether the Tribunal failed to afford procedural fairness to the applicants – where matters raised by the applicants seek merits review of Tribunal decision – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 422B, 424AA, 424A, 425, 425A, 426A, 441A, 441G, 476 and 477
Migration Regulations 1994 (Cth) reg 4.35D
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shang Liang [1996] HCA 6; (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 435; [2004] FCA 106
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 22 January 2024 Place: Perth Applicants: The first applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 116 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMO21
First Applicant
AMP21
Second Applicant
AMQ21, BY HER LITIGATION GUARDIAN, AMO21
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
11 APRIL 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The applicants are citizens of the Philippines who applied for protection visas in Australia. A delegate of the Minister refused to grant the applicants protection visas and the applicants applied to the Administrative Appeals Tribunal (Tribunal) for merits review of that decision. The Tribunal affirmed the delegate’s decision on 25 May 2023. The applicants now seek judicial review of the Tribunal decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In their written application, the applicants rely on a single ground alleging that the Tribunal denied them procedural fairness. The first applicant represented himself at the hearing before the Court and raised additional issues, including that the Tribunal asked him irrelevant questions and that he gave evidence before the Tribunal that he had been politically active whilst in Australia.
For the reasons explained below, the applicants have not established that the Tribunal made a jurisdictional error in making its decision and the application for judicial review is therefore dismissed.
VISA APPLICATION AND RELATED DECISIONS
The applicants applied for protection visas on 26 April 2016. The first applicant claimed that he would face harm if returned to the Philippines, amongst other things, on account of his political activities. The second applicant is the wife of the first applicant and the third applicant is their child. They were included in the protection visa application as members of the same family unit.
The first applicant attended an interview with an officer of the Minister’s Department on 8 December 2016 to discuss his claims for protection.
On 12 April 2017 a delegate of the Minister decided not to grant the applicants protection visas. On 13 April 2017 the applicants applied for merits review of the delegate’s decision by the Tribunal.
The first and second applicants attended a hearing before the Tribunal on 25 January 2021. The Tribunal purported to affirm the delegate’s decision on 5 February 2021, but this Tribunal decision was quashed by the Federal Circuit Court on 6 December 2021 on the basis that the Tribunal fell into jurisdictional error by failing to consider the claims raised by the first applicant about the death of his brother. The matter was remitted to the Tribunal for reconsideration according to law.
After the matter was remitted, the Tribunal sent an email to the applicants on 17 February 2023, attaching an invitation to attend a hearing scheduled for 28 March 2023.
On 8 March 2023 and 14 March 2023 the applicants’ representative requested that the hearing be adjourned to allow adequate time to prepare for the hearing. The Tribunal declined this request on 15 March 2023 noting that the applicants’ representative had adequate time to prepare for the hearing. The Tribunal did, however, extend the time for the applicants to submit written documents and submissions from 21 March 2023 to 24 March 2023.
On 27 March 2023 the Tribunal sent to the applicant’s lawyer a copy of the Department of Foreign Affairs and Trade country information report for the Philippines and advised that the report would be canvassed at the hearing on 28 March 2023.
The applicants attended the Tribunal hearing on 28 March 2023, accompanied by their representative, and the representative provided a submission to the Tribunal the following day.
On 6 April 2023 the Tribunal sent another invitation to attend a hearing to the applicants, inviting them to attend a further hearing on 18 May 2023. The applicants attended the hearing on 18 May 2023, again accompanied by their representative.
On 25 May 2023 the Tribunal affirmed the delegate’s decision.
SUMMARY OF TRIBUNAL DECISION
The Tribunal recorded that at the start of the hearing the applicants confirmed that the first applicant’s claims for protection were limited to those based on his claimed political involvement and that the second applicant was not advancing her own claims for protection, but rather making claims based on being a member of the same family unit as the first applicant.
The Tribunal accepted that the first applicant had been involved, during school and university, in indigenous and Lumad causes, including being a member of the Kilusang Magbubukid ng Pilipinas (KMP) and the Arakan Peasant Progressive Organisation (APPO). The Tribunal was also satisfied that on at least some occasions during this period, the first applicant was detained by the police in political rallies resulting in the police inflicting physical harm on the first applicant. The Tribunal accepted that these encounters with the authorities resulted in the first applicant suffering serious and significant harm.
However, the Tribunal was not satisfied that the first applicant was politically active after leaving university or that he had suffered any harm or threats after leaving university as a result of his past political activities. This finding was based on a number of concerns that the Tribunal had about the first applicant’s credibility, including in relation to:
(a)the extent and nature of the first applicant’s political involvement after university, given significant inconsistencies in his claims in relation to this;
(b)the first applicant’s claims in relation to his whereabouts from 2004 to 2013, including the extent to which the first applicant returned from overseas to the Philippines during this time, due to inconsistencies in the evidence about the countries in which the first applicant was living during part of this period;
(c)the conflicting evidence between the first and second applicants as to whether the first applicant remained in the Philippines for eight months after his marriage to the second applicant and whether he engaged in political activities and incurred harm from the authorities during this period;
(d)inconsistencies in the first applicant’s evidence in relation to whether he received threats in 2013 and his claim raised for the first time in a statement to the Tribunal that he had received a political threat from the Philippines in 2016 whilst in Australia; and
(e)the delay of the first applicant in seeking protection, in circumstances where he arrived in Australia in July 2013 but did not apply for a protection visa until April 2016 after unsuccessfully lodging an application for a temporary work visa.
The Tribunal was not satisfied that the first applicant was a person of adverse interest in the Philippines on account of his past political activities and the Tribunal was not satisfied that the first applicant would be politically involved on return to the Philippines in a way that would attract the adverse attention of authorities.
The Tribunal was prepared to accept that the first applicant’s brother was killed by the authorities in 2016 as a result of his involvement with the APPO. The Tribunal did not accept the first applicant’s claim to have the same political profile as his brother and again reiterated that it was not satisfied that the first applicant would continue to be actively politically engaged upon his return to the Philippines.
The Tribunal found that none of the applicants met the criteria for a protection visa in s 36(2)(a), (aa), (b) or (c) of the Migration Act and affirmed the delegate’s decision.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 26 June 2023 and was therefore made within 35 days of the date of the Tribunal decision, as required by s 477 of the Migration Act.
The application contains the following sole ground of application, which is not particularised:
The Applicant was denied procedural fairness.
On 17 January 2024 the applicants filed an application in a proceeding seeking an adjournment of the hearing listed on 22 January 2024. I heard and dismissed the application in a proceeding on 19 January 2024, giving oral reasons for that decision. Those reasons are not repeated here.
I did, however, take the opportunity when the matter was before the Court on 19 January 2024 to explain to the first applicant that the applicants’ ground did not contain sufficient details, or particulars, to enable the Court and the Minister to properly understand it. I explained to the first applicant that he would have the opportunity at the final hearing to make submissions explaining the error that he believes the Tribunal made and giving more detail about why he claims the Tribunal denied him procedural fairness.
I have taken into account, in assessing whether the Tribunal decision is affected by jurisdictional error, the matters raised orally by the first applicant at the hearing, which extend beyond the matters raised in the application.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal’s decision by reference to the applicants’ complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.
The Court can only grant relief to the applicants if they establish that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ in the High Court’s decision in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12, where their Honours said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute…
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not close…. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
WERE THE APPLICANTS DENIED PROCEDURAL FAIRNESS?
Although the applicants’ ground is pleaded as a denial of procedural fairness, the submissions made orally by the first applicant at the final hearing did not address the Tribunal’s procedural fairness obligations.
I have nevertheless considered the evidence before me relating to the conduct of the Tribunal hearing and the procedural fairness obligations that the Tribunal owed to the applicants.
In conducting the review, the Tribunal was required to comply with the procedures set out in Division 4 of Part 7 of the Migration Act. That Division comprises an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with: s 422B(1) of the Migration Act. There is some scope for the operation of the common law rules of procedural fairness in relation to matters that are not dealt with by the provisions of Division 4 of Part 7 of the Migration Act: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 435; [2004] FCA 106 at [57]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [35].
Taking into account the relevant procedural fairness requirements of the Tribunal and the evidence before the Court in this case, I am satisfied that the Tribunal afforded the applicants procedural fairness.
First, the Tribunal invited the applicants to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425 of the Migration Act. The Tribunal invited the applicants to attend two hearings, held respectively on 28 March 2023 and 18 May 2023. There is nothing in the materials before the Court, and nothing raised by the applicants, to suggest that the invitation to attend a hearing was not a real and meaningful one.
Second, the notices of the invitation to appear complied with the requirements of s 425A of the Migration Act because:
(a)the notices clearly set out the day on which and the time and place at which the applicants were scheduled to appear before the Tribunal, as required by s 425A(1);
(b)the notices were given to the applicants by one of the methods specified in s 441A of the Migration Act, as required by s 425A(2) and, more specifically:
(i)the invitation sent on 17 February 2023 was sent to the most recent email address provided by the applicants to the Tribunal (see s 441A(5)); and
(ii)the invitation sent on 6 April 2023 sent to the email address of the applicants’ representative provided to the Tribunal on 8 March 2023 (see ss 441A(5) and 441G);
(c)the period of notice given in relation to the hearings was more than 14 days from when the applicants received the invitation, as required by s 425A(3) of the Migration Act and reg 4.35D(3) of the Migration Regulations 1994 (Cth); and
(d)the notice contained information outlining what would happen if the applicants did not appear at the hearing, and that information amounted to a statement of the effect of s 426A of the Migration Act, as required by s 425A(4).
Third, the applicants were aware of the dispositive issues before the Tribunal, based on the delegate’s decision and the matters that the Tribunal appears to have raised with the applicants at the hearing. The first applicant’s credibility was an important issue before the delegate, as it was before the Tribunal. The Tribunal’s reasons reflect that it expressed some of its concerns about the first applicant’s credibility to him at the hearing. The Tribunal’s reasons suggest that it put to the applicants its concerns about:
(a)the inconsistency between the first applicant’s evidence at different hearings as to his claimed level of political involvement after university: [50];
(b)the inconsistency in the first applicant’s evidence of his return visits to the Philippines: [58];
(c)the inconsistency in the evidence of the first and second applicants as to where the first applicant was located between 2004 and 2013 and whether or not and how often he returned to the Philippines during these years: [60], [65];
(d)the inconsistency in the first applicant’s evidence as to whether he received threats or had any substantive difficulties due to his political involvement in 2013: [68], [69];
(e)the first applicant’s failure to mention in his interview with the delegate that he had received threats in Australia in 2016: [70]-[72]; and
(f)the applicants’ delay in applying for a protection visa: [73]-[74].
Fourth, the applicants have not identified any information that the Tribunal was required to, but did not, invite them to comment on pursuant to ss 424A or 424AA of the Migration Act. Those sections required the Tribunal to give to the applicants clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review, ensuring as far as was reasonably practicable that the applicants understood why the information was relevant to the review and the consequences of it being relied on, and invite the applicants to comment or respond to it. However, there are certain exceptions to this requirement, including information provided by the applicants for the purposes of the review and information that is not specifically about the applicants and is rather just about a class of persons of which the applicants are members: see s 424A(3)(a) and (b) of the Migration Act. The information relied on by the Tribunal in reaching its decision was primarily information provided by the applicants and country information.
Fifth, the Tribunal gave the applicants an opportunity to submit written documents to support their claims, including post-hearing submissions which were provided by their representative, and the Tribunal identified it had regard to the large volume of evidence provided by the applicants.
I accept the Minister’s submission that the Tribunal afforded the applicants procedural fairness. The ground raised in the applicants’ application therefore does not establish jurisdictional error in the Tribunal decision.
OTHER MATTERS RAISED BY THE FIRST APPLICANT AT THE HEARING
The first applicant raised a number of matters at the hearing that extend beyond his assertion that he was denied procedural fairness.
The first applicant’s assertion that the Tribunal asked him irrelevant questions
The first of these matters related to the questions asked by the Tribunal, and the first applicant’s perception that the questions the Tribunal asked him were irrelevant. The first applicant submitted that the Tribunal asked him questions about his specific address in the Philippines, how long ago he married, and about his honeymoon. These questions were difficult for him to answer because he had no records and they related to events that happened 20 years ago, and in his view, the only relevant questions for the Tribunal to ask were those relating directly to his claims for protection.
I do not accept that these questions, if asked, give rise to jurisdictional error. There is nothing in the Tribunal reasons to suggest that the Tribunal relied on any difficulties that the first applicant may have had in addressing matters such as his specific addresses within the Philippines, the date of his marriage and details about his honeymoon in making adverse findings against him. Rather, the Tribunal’s reasons show that the inconsistencies about the first applicant’s living arrangements that it relied upon in making adverse credibility findings related to matters that were much more substantial. These included inconsistencies in the first applicant’s evidence about whether he was living overseas or in the Philippines for large parts of the period between 2004 and 2013, and the inconsistent evidence between the first and second applicants as to whether the first applicant moved overseas immediately after his marriage or whether he continued to reside with his wife for eight months first.
There is nothing in the present matter to suggest that the questions asked by the Tribunal were irrelevant or asked for any improper purpose and nothing to suggest that the Tribunal relied on the difficulties that the first applicant had in recalling specific addresses and dates in making adverse findings against him. There is no jurisdictional error in the Tribunal’s decision on this basis.
The first applicant’s assertion that he gave evidence to the Tribunal about his political activities while in Australia
The first applicant referred in his submissions to the Court to his ability to communicate from Australia with people in the political party he was involved with in the Philippines, stating that he could still have communications and assist the political party from Australia. I explored this with the first applicant at the hearing at some length, because it was unclear to me from how the submission was first framed whether the first applicant was claiming that he told the Tribunal that he had been involved in the political party from Australia, or whether he was claiming he told the Tribunal he could be involved from Australia. The first applicant claimed that he had told the Tribunal that he had been involved in communications and political activities whilst in Australia.
In the course of the hearing, I referred the first applicant to [66] of the Tribunal’s reasons, which does not support his submission to the Court that he told the Tribunal he had communicated with the political party and been involved in political activities while in Australia. At [65], the Tribunal explained some of the concerns that it put to the first applicant about his evidence, and then recorded at [66] (emphasis added):
In response the applicant indicated that he is still a member politically even though not active but would be active on return. The Tribunal indicated to the applicant that the core issue in its view was that the applicant was mostly in the Philippines and not politically active much beyond university indicating that he would not be politically active on return. The applicant indicated that he would be politically active.
Precisely what the first applicant told the Tribunal had the potential to be relevant in the judicial review application because it can amount to jurisdictional error if the Tribunal did not consider all of the applicants’ claims for protection and their component integers: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE (No 2)) at [58], [60]-[61].
At the time of the hearing there was no transcript of either of the Tribunal hearings in evidence before the Court. In the absence of direct evidence of what was said at the Tribunal hearings, and in circumstances where the Tribunal’s reasons do not support the first applicant’s submission at the hearing before the Court that he told the Tribunal he had been politically active and communicating with his political party whilst in Australia, there is no evidentiary basis for me to accept the first applicant’s submissions as to what he said to the Tribunal.
At the conclusion of the hearing I made orders giving the applicants leave to file and serve an affidavit annexing a transcript of the Tribunal hearing and any submissions addressing whether the first applicant had claimed to the Tribunal that he had been involved in political activities whilst in Australia. The applicants did not file any affidavit annexing a transcript or any submissions in accordance with the orders I made at the hearing. The first applicant did, however, send an email to my associate attaching an audio file of the Tribunal hearing held on 28 March 2023. I listed the matter for a mention on 29 February 2024 to explain to the applicants that the Court does not accept as evidence an audio recording that is simply emailed to Chambers and that leave had been granted to the applicants to file an affidavit annexing a transcript, not an audio recording. The first applicant explained that when I said transcript, he thought I meant an audio recording and requested another opportunity to provide a transcript. I extended the timeframe for the applicants to comply with the orders I made at the hearing. Pursuant to the order I made on 29 February 2024, the applicants had until 21 March 2024 to provide an affidavit annexing a transcript and written submissions. The parties were advised at the mention that if no documents were filed by that date, I would simply proceed to prepare and deliver my judgment. The first respondent’s lawyer also agreed at the mention to communicate with the first applicant about which organisations he could contact to prepare a transcript.
The applicants did not file any documents in accordance with the orders I made on 29 February 2024, and my associates have not received any email correspondence from the applicants seeking further time to provide the documents. I have allowed a period of more than two weeks to pass from when the documents were due to be filed, in case there was any reasonable explanation for the delay in filing the documents. I am satisfied that it is now appropriate to proceed to deliver judgment, without seeking further explanation from the applicants about whether they still wish to file an affidavit annexing a transcript.
I am not satisfied on the evidence before the Court that the first applicant advanced any claim before the Tribunal (or integer of a claim) to the effect that he had remained politically active or otherwise in communication with any political party in the Philippines while he has resided in Australia. As indicated above, the Tribunal’s reasons suggest that the applicant told the Tribunal he had not been politically active while living in Australia. The Tribunal was not obliged to consider any claim that was not clearly articulated by the applicants and which did not clearly emerge from the materials before it: NABE (No 2) at [60]. The applicants have therefore not established that the Tribunal made a jurisdictional error by failing to consider the matter raised by the first applicant at the hearing before the Court.
Matters relating to the factual merits of the Tribunal decision
There were also other matters raised by the first applicant at the hearing that appeared to be more directed to the factual merits of the Tribunal decision. For example, the first applicant submitted that one could look at the evidence and see his scars and questioned how one could think that this was fake. The first applicant submitted that the country information shows that nothing has changed and the risk to him remains. The first applicant further submitted that the fact his brother was killed does not mean that the first applicant is no longer part of the political group. In his reply submissions, the first applicant read a submission prepared by his lawyer which was provided to the Tribunal for the purpose of his merits review application.
By raising these matters, the first applicant has not asserted any jurisdictional error on the part of the Tribunal. Rather, the first applicant appears to be asserting that the Tribunal should have found that he was owed protection by Australia. As indicated above, and as I explained to the first applicant at the hearing, it is not the role of the Court to consider for itself whether the applicants meet the criteria for a protection visa. The Court has no jurisdiction to review the factual merits of the Tribunal decision. Therefore, the matters raised by the first applicant in his oral submissions do not establish jurisdictional error.
CONCLUSION
The applicants have not established that the Tribunal decision is affected by jurisdictional error. The application to this Court for judicial review of the Tribunal decision must therefore be dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 11 April 2024
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