ANI15 v Minister for Immigration
[2019] FCCA 3301
•26 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANI15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3301 |
| Catchwords: MIGRATION – Protection visa application – where applicant applies for Protection visa 12 years after arrival in Australia on Student visa – where applicant ceased study following withdrawal of financial support and then worked in Australia illegally – where applicant was estranged from adoptive family – where applicant claimed harassment and fear of harm from a corrupt ‘system’ – where applicant claimed he would be detained at length under Destitute Persons Laws (Malaysia) – where applicant stated he did not fear persecution upon re-entry to Malaysia if he was not detained or was released from initial detention – where Tribunal conducted two hearings and examined extensive country information that was put to the applicant for comment – whether decision illogical or irrational – non-disclosure of s 438 certificate – whether decision denied applicant procedural fairness – whether decision tainted by jurisdictional error – application dismissed. |
| Legislation: Destitute Persons Laws (Malaysia) |
| Cases cited: ANI15 v Minister for Immigration and Border Protection [2017] FCCA 2129 |
| Applicant: | ANI15 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MUTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2715 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 25 January 2019 |
| Date of Last Submission: | 25 January 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 26 November 2019 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor-Advocate for the First Respondent: | Ms Nyabally |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 10 September 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2715 of 2018
| ANI15 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MUTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 10 September 2018, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on made on 14 August 2018 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
In summary, the applicant first applied for a Protection visa 12 years after having arrived in Australia, doing so on the basis that he would always have a fear of returning to Malaysia after such a period. As the applicant had no family, he claimed that he would be unable to survive in a country with endemic corruption and would be detained at length under the Destitute Persons Laws (Malaysia) (DPA). By contrast, the applicant also stated he did not fear persecution upon re-entry to Malaysia if he was not detained or was released after a brief period of initial detention.
Background
The Applicant, a Malaysian citizen of Chinese ethnicity aged 45 years, first arrived in Australia on 8 July 2000 as the holder of a Student visa, which expired on 31 August 2002. According to his Protection visa application, in 1997 the applicant obtained a Malaysian tertiary qualification in Quantity Surveying. In Australia, he enrolled in a Bachelor of Building Economics at the University of Technology, Sydney. His visa application also indicated that he could speak, read and write in English, Indonesian and Malay.
The applicant’s Student visa was subject to condition 8101 which denied him permission to work in Australia. Within a fortnight of his arrival, on 19 July 2000, the applicant applied for the variation of condition 8101 so as to enable him to work. The application was granted.
From his Protection visa application it also appears that the applicant’s mother had passed away, that he was living with his “adopted mother’s brother” and that he was partially dependent upon the financial support of his Sydney-based uncle for payment of his university fees. As further appeared from the decisional record of a delegate of the Minister, it was because his adoptive family was disappointed with his marks, that they ceased to provide him with financial support and then severed ties with him. In the result, the applicant was unable to continue his study.
In October 2001, the applicant took leave of absence from his study for two semesters, proposing to recommence studies in the autumn semester. In August 2002, the applicant’s enrolment was cancelled by reason of his tuition fees remaining unpaid from May 2002. Although allowed an opportunity to take further leave from study, he did not do so and, with effect from 8 August 2002, his enrolment was terminated.
Upon the expiry of his Student visa, the applicant became an unlawful noncitizen. The applicant remained in Australia.
On 9 December 2014, the applicant was located by immigration officers while working illegally as a restaurant manager in Sydney. When interviewed for the purposes of ascertaining whether he would be issued with a Bridging visa, the applicant stated that he had no plans to leave Australia, that he wished to remain in Australia indefinitely and was planning to get a Business visa.
At that time, the applicant had savings of AUD$5,000 and some cash.
The applicant was taken into immigration detention and on 23 December 2014 lodged an application for a Protection visa.
The applicant claimed to fear harm from corrupt officers in Malaysia on account of his Chinese-Malay ethnicity and his extended residence in Australia. The applicant further claimed he would be arrested and detained, irrespective of guilt or innocence, and that his possessions would be taken by corrupt officers. He made generalised allegations of endemic corruption in Malaysia and its ‘system’.
The applicant participated in an interview with a delegate of the Minister on 16 January 2015. In a statutory declaration made on 27 January 2015, the applicant restated that he had remained in Australia for 12 years following the expiry of his visa in August 2002 and, from that time, had worked as a barista/all rounder at various cafés. On the basis that he had no family or home in Malaysia to go back to, the applicant contended that he would be homeless and, having been away for 14 years, feared that he would be detained. He further claimed to fear harm arising from his status as a homeless Christian-Chinese and that he would be treated like an outcast.
On 5 February 2015, a delegate of the Minister refused to grant the visa. The delegate found that the applicant had not been truthful about several important details of his claims. Relevantly, the delegate did not accept that the applicant was destitute or that he would be arrested or detained on entry to Malaysia. The delegate further found that the applicant’s fears were not genuine, as he had failed to take any steps to avail himself of Protection for the 14 years he remained unlawfully in Australia. The delegate observed that the applicant had made no effort to find information that was readily available and concluded that he was primarily interested in remaining and working in Australia.
The applicant applied to the (then) Refugee Review Tribunal for review of the delegate’s decision which, on 17 March 2015, affirmed the decision under review. Thereafter, on 5 September 2017, orders were made by this court quashing that decision and remitting the matter to the Tribunal for re-determination, finding it had been unreasonable of the Tribunal to refuse the application for an adjournment: ANI15 v Minister for Immigration and Border Protection.[1]
[1] [2017] FCCA 2129, [69].
Proceedings before Tribunal
On 26 September 2017, the Tribunal requested the applicant to provide his submissions.
On 3 October 2017, a delegate of the Minister issued a certificate pursuant to s 438(1)(a) of the Act (s 438 Certificate) notifying the Tribunal that disclosure of documents comprising folios 33 – 39 of the departmental file would be contrary to the public interest by reason that they were “internal departmental working documents”.
On 27 December 2017, 17 January 2018, 18 January 2018 and 9 March 2018, the applicant provided the Tribunal with written submissions. The Tribunal conducted hearings on 16 January and again on 8 March 2018. The applicant participated in each of those hearings where he gave evidence and elaborated on his written claims and submissions.
On 14 August 2018, the Tribunal affirmed the delegate’s decision and provided a statement of its reasons (Reasons) for that decision. The applicant’s evidence and oral submissions were identified and referred to in those Reasons. In the course of its Reasons, the Tribunal also referred extensively to the applicant’s written submissions. I consider the Reasons to be comprehensive.[2] The Tribunal stated that it had conducted a fresh reconsideration of the matter: [4]-[5].
[2]As appears from an examination of the Reasons, on some occasions there has been an erroneous renumbering of particular paragraphs. It is a matter to which I attach no weight.
The Tribunal noted that the applicant had submitted as follows: he had been adopted as a baby and disowned by his adoptive family in Malaysia; he had no contact with his adoptive family for a considerable period; his passport had expired; he would struggle to find employment in Malaysia as his proof of qualifications were stored with his estranged family; he feared being detained, questioned and subjected to ill-treatment on return to Malaysia as he did not have a passport; he would be considered homeless and detained under the DPA as he did not have a permanent address or job: [44]-[45], [51], [59], [62], [66].
The Tribunal correctly identified the applicant’s claims as falling under essentially five categories: official corruption; detention under the DPA; inability to find work; lack of family support; discrimination as a Chinese Malay: [29]-[38], [59(a)-(i)]. The applicant abandoned a claim based upon religion: [44], [52].
The Tribunal summarised the relevant background and the evidence before it. The Tribunal then considered independent country information obtained in relation to the status of Chinese Malays, Malaysian authorities, and the treatment of returnees and destitute persons in Malaysia: [1]-[6], [16]-[19], [29]-[79]. The Reasons record that the most recent country information was put to the applicant for comment and that he gave considered responses: [71]-[77].
Notably, the applicant confirmed that he did not fear persecution if he was not detained upon re-entry to Malaysia or if he was released from initial detention and stated: “his fears relate to circumstances that may arise solely whilst he is in detention upon return to Malaysia”: [70]. In light of the applicant’s claim concerning the treatment of destitute and homeless persons, the Tribunal adjourned the hearing on 16 January 2018 and made a request for further updated country information. Upon resuming the hearing on 8 March 2018, it then considered that information in detail and provided it to the applicant for comment: [76].
In its consideration of the country information, the Tribunal listed six questions it had asked of and the responses it received from DFAT. The Tribunal provided those responses to the applicant, and gave consideration to his responses, which may be summarised as follows:
a)Question 1: Are there sources which indicate the treatment of involuntary returnees (failed asylum seekers of Malaysia nationality) to Malaysia?
The country information supplied by DFAT indicated that returnees and failed asylum seekers were unlikely to face adverse action but might be questioned upon return. The applicant responded that he had no current passport and would be detained.
b)Question 2: Are there sources of information which discuss treatment of such involuntary returnees who return into Malaysia and have no access to family, are lacking in funds and have no employment or place of abode?
DFAT could not locate country information discussing this issue but observed that the International Organisation for Migration (IOM) provided reintegration assistance to voluntary Malaysian returnees and that the Malaysian government did not impede such organisations. The applicant responded that IOM would not assist.
c)Question 3: Does information support or tend to support any of the applicant’s claims as to the potential for him being detained and mistreated by Malaysian authorities including Immigration Officers and Royal Malaysian Police Officers upon processing during his return?
The country information supplied by DFAT addressed police integrity, including a Royal Commission into corruption, following which the Malaysia government had acknowledged it as a problem and implemented reforms to address it. The applicant responded by referring to his one of written submissions and stating that he would be tortured for his money: [74].
d)Question 4: Does information support or tend to support any claims of the applicant concerning him being potentially detained following processing (upon arrival) pursuant to Malaysia’s Destitute Persons Laws? If so, what is the potential effect of these laws upon a person in the applicant’s circumstances, being without family, employment or any address?
DFAT addressed this topic in detail, concluding that only Malaysia’s most vulnerable persons were likely to be admitted to welfare, such as the elderly homeless. DFAT reported that the majority of country information discussed the apprehension of beggars (in contrast with vagrants or the homeless) and that, media was likewise focused upon beggars and ‘beggar syndicates’ who sought donations from the public in violation of the DPA, especially around the time of Ramadan. The applicant responded that there were many loopholes in the DPA, describing it as half-baked policy, and again referred to his written submissions.
e)Question 5: If a person is detained under the Destitute Persons Laws, what conditions do such persons experience during detention?
The country information supplied by DFAT indicated that homeless and vagrant persons may be admitted to a temporary shelter for a short stay, and that the highly vulnerable may be admitted to a welfare home for a longer term. Further reports indicated that the shelters provided support and services including food, shelter, health care, recreational facilities, employment opportunities and vocational training together with links to relevant NGOs and counselling services which focused on reintegrating the homeless back into society. The applicant responded that he “believed what was said to him by the Tribunal.” However, he considered that the government’s claims were inaccurate and that support did not exist, again referring to his written submissions. The applicant appears to have adopted the position that if the government support was as good as that being suggested “why would people run away?”
f)Question 6: Is there any information indicating how Malaysian Nationals are being treated upon their return in circumstances where they have no current Malaysian passport? Is the fact of not having a current passport an aggravating factor to any extent?
The country information supplied by DFAT indicated that Malaysian nationals who returned on a travel document would not face adverse attention from authorities upon their return and, critically, that involuntary returnees were issued a travel document in lieu of a passport. Further, a 2016 DFAT report stated that Malaysians who overstayed their work or tourist visas, or breached visa conditions in another country, were regularly returned to Malaysia without the authorities paying attention to them. The applicant responded that he considered the country information “a bit inaccurate” and that “persons will be detained and interviewed initially at the airport and then at the headquarters of the police and immigration departments. This is what happens also in Australia.”
Having considered country information and the applicant’s responses, the Tribunal also considered further information which it had obtained. This information was addressed at the further hearing which was conducted on 8 March 2018, including DFAT information which indicated there was, at present, an employment rate of ~80.4% for Malaysian males: [63]. To this, the applicant responded that he would be able to obtain work, but said that his main concern was homelessness; a submission which the Tribunal found difficult to reconcile having regard to his qualifications and work history: [64]-[65], [75]-[76].
The Tribunal then considered 2018 DFAT country information which did not alter its assessment of conditions in Malaysia or the applicant’s claims in any material sense. Further, for those reasons the Tribunal concluded it was unnecessary to put further country information to the applicant: [77].
The Tribunal addressed the applicant’s various written submissions, each of which was attached to its Reasons: [78]-[79].
The Tribunal undertook its assessment of the applicant’s credibility and made its factual findings: [80]-[86]. The Tribunal did not find the applicant’s oral evidence to be credible. In particular:
a)the Tribunal noted inconsistencies in the applicant’s evidence concerning his tertiary qualifications as a quantity surveyor; that he had worked for his uncle as a surveyor for two years; that the certificate of his qualification was held by his estranged family, and; that he had not made any enquiry of that family or the institution as which he studied to obtain proof of his qualifications: [49]-[50];
b)the Tribunal noted that the applicant had a good command of English and had studied at an Australian university. It did not accept, and thought it incredible, that the applicant would not have become aware of Australia’s Protection regime at some point in the 12 years between the expiry of his Student visa and the date he had applied for the visa: [37], [56], [60], [80];
c)despite claiming to have suffered ‘constant harassment’ from corrupt officers in Malaysia, the applicant’s only evidence on this issue related to a claim of harassment arising from an isolated incident when he was 12 years of age. The Tribunal concluded that there was no evidence or information before it which confirmed that the applicant had suffered serious or significant harm from Malaysian police on a regular basis: [30], [81].
Each of those findings were open. In making those credibility findings the Tribunal correctly identified the applicable legal principles and, in my opinion, applied them appropriately: [21]-[26].
The Tribunal accepted it was likely, by reason of him not holding a current Malaysian passport, that the applicant would be questioned by authorities and detained. It considered it highly unlikely the applicant would remain in detention for any significant period and that the contrary view was inconsistent with DFAT country information: [59]. Given the response to Question 6 above and the other information provided by DFAT, this finding was also clearly open.
The Tribunal also referred to country information put to the applicant for comment (the validity of which he rejected), that stated Malaysians who had overstayed work or tourist visas or breached visa conditions in other countries were regularly returned without attention being paid to them by authorities. He said that if he was returned to Malaysia, he would probably go initially to Kuala Lumpur: [74]-[75].
The Tribunal put country information to the applicant regarding the integrity of the Malaysian police force, which he rejected: [73].
The Tribunal focused upon the applicant’s submissions that he was at risk of being detained and arrested as a destitute person under the DPA, including the country information upon which he relied. The Tribunal did not accept that the applicant would be detained or arrested for any significant period upon re-entry to Malaysia. Nor did it accept that the applicant’s circumstances would engage the DPA which it found was “directed towards the truly destitute and homeless and not to persons who may briefly experience a period of impecuniosity following periods living overseas.” The Tribunal did not accept that the applicant would be homeless for more than a few days and found that he had sufficient funds to secure temporary accommodation and to provide for basic living expenses: [32]-[36], [58], [82].
The Tribunal noted the applicant’s evidence that he could source AUD$5,000 to $6,000 and did not accept the correlation drawn by him between his re-entry as an impecunious Malaysian national without a valid passport, and an assumed status as a vulnerable person, beggar or destitute person for the purposes of the DPA. It recognised that the applicant had been able to secure gainful employment whilst in Australia. It was not satisfied the applicant would be detained and arrested by authorities under the DPA: [54], [61]-[66], [79], [82]-[83].
The Tribunal did not accept that the applicant would be unable to secure paid work or that he would be unable to secure copies of his personal documents and study certificates: [62], [83]. The Tribunal rejected the applicant’s claims that he would be unable to survive as he had no family in Malaysia, finding that he had lived as a single person in Australia for about 14 years prior to his detention: [84].
The Tribunal noted the applicant’s evidence that he was a person of mixed ethnicity. It rejected his claims to fear harm arising from his ethnicity as unsupported by country information: [53], [71]-[72], [85].
The Tribunal considered, and rejected, a claim that the applicant had a well-founded fear of persecution. It addressed itself to the correct legal principles and guidelines and did so in some detail: [7]-[10], [11]-[13], [14]-[15]. The Tribunal did not accept the applicant’s claims to legitimately fear persecution in Malaysia either now or in the reasonably foreseeable future: [57], [88]-[91]. Nor was the Tribunal satisfied there were substantial grounds for believing that there was a real risk the applicant would suffer significant harm in Malaysia: [92]-[100].
For those reasons, the Tribunal affirmed the delegate’s decision: [101].
Procedural history
On 10 September 2018, the applicant filed an application for judicial review of the Tribunal’s decision. The applicant affirmed an affidavit on 5 September 2018 to which he exhibited a paginated series of documents comprising the following:
a)Annexure I – the Tribunal’s Reasons (pp. 1-29) and:
i)Attachment A – Extract, Migration Act 1958; (pp. 30-32);
ii)Attachment B – 27 December 2017 submission (pp. 33-44);
iii)Attachment C – 17 January 2018 submission (pp. 45-46);
iv)Attachment D – 18 January 2018 submission (pp. 47-48);
v)Attachment E – 9 March 2018 submission (pp. 49ff);
b)Annexure II – certain country information. Although the applicant deposed that this country information, in effect, comprised “missing articles”; it duplicated Attachment C or materials in the court book;
c)Annexure III – an email chain of communications in the period 17-20 August 2018 in which the applicant requested copies of his academic transcript for a course of study completed in 1997 and the reply advising that such records could not be retrieved. As to this, neither this email chain, nor evidence of inquiries so as to obtaining an academic transcript, had been before the Tribunal.
By his affidavit, the applicant deposed that he had come to Australia to further his academic study at the University of Technology Sydney; for an unknown reason he had, he said, been disowned by his adoptive family by early 2002; from that date he had been “on the run and [in] denial from this traumatic incident”; he had been living in fear in Australia and had to subsist on a low income with support of his friends; he had been detained in December 2014; he had lodged a valid application for a Protection visa; the hearing of his application had been deferred, apparently by reason that his agent was awaiting a response to a request for documents made under the Freedom of Information Act; on the scheduled date of the hearing, shortly before its commencement, his agent had advised he would not be in attendance;[3] upon an application for judicial review, on 5 September 2017 the applicant was granted relief; subsequently, on 16 January 2018, and again on 8 March 2018, the applicant attended interviews in relation to his visa application; upon receiving advice that the Tribunal had affirmed the delegate’s decision, the applicant had sought judicial review.
[3] It seems that this had been the reason why an adjournment had been sought.
By a Response filed on 8 October 2018, the Minister contended that the application should be dismissed on the ground that the Tribunal’s decision under review was not affected by jurisdictional error.
On 11 December 2018, orders were made, by consent, that the application be listed for final hearing. By this order, the applicant was afforded an opportunity to file an amended application with proper particulars of the grounds of review, together with a supplementary court book and written submissions in support of their application.
On 20 December 2018, the Minister’s solicitor affirmed an affidavit in which she addressed the documents the subject of the s 438 Certificate.
Consideration
If the Tribunal’s decision was a privative clause decision[4], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[5] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[6] Whether it should do so is a separate issue.
[4] Act, s 474(2).
[5]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[6] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[7] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[7]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Although given an opportunity to revise his grounds of review, he did not do so. The applicant’s unparticularised grounds read:
1.MISUNDERSTANDING AND/OR MISCOUNTRUCTION APPLICANT’S CLAIM
2.APPLYING THE WRONG TEST OR REASONING
3.EVIDENCE USED BASED ON MATERIAL OR INFORMATION UNTESTED FOR FACTS AS SET OUT IN S.430(1)(C) OF THE ACT
4.ERROR OF FACT
5.ILLOGICAL OR IRRATIONAL PROCESS OF REASONING
6.IGNORING RELEVANT MATERIAL AND/OR INFORMATION WHEN REASONING
7.OMISSION OF RELEVANT MATERIAL AND/OR INFORMATION WHEN REASONING
8.FALLACY
9.ABSENCE OF LEGAL ASSURANCE OF PROTECTION IF THE APPLICANT WILL BE DEPORTED TO RECEIVING COUNTRY
10.BREACH OF S.422B OF THE ACT
11.NATURAL JUSTICE AND HUMAN RIGHTS SHOULD BE PARAMOUNT
Those grounds were liable to be rejected for want of particularisation.
However, to some extent, the applicant’s written and oral submissions illuminated the nature of the applicant’s complaints. The content of those written submissions was often difficult to understand. The oral submissions were little different. In considering those submissions, it has been convenient to provide references to the submissions, particularly as there has been a marked degree of overlap.
As the applicant was self-represented before me I have re-examined the Reasons and the materials comprised in the court book, including each of his submissions and those filed in this court. While the applicant presented before me as a reasonably articulate man, I recognised that he was addressing legal issues and doing so in a foreign language and in an environment with which he was unfamiliar.
In substance, the applicant pointed to various aspects of the Reasons as indicating that the Tribunal had misunderstood or misconstrued his claims and evidence. At the outset, it is the function of the Tribunal, not this court, to evaluate and decide what weight should be attached to the evidence which is adduced before the Tribunal on merits review. I have examined each of his particular complaints. In doing so, I am conscious that the findings, particularly credibility based findings, of an administrative decision-maker are not immune from scrutiny in this court.
Judicial review of fact finding
The substantive complaint that may be distilled from the Grounds of Review and the applicant’s submissions is that the Tribunal’s findings were in one form or another, illogical or irrational.
Where an administrative decision is found to be illogical or irrational, this may ground a conclusion that the decision is affected by jurisdictional error and so attract prerogative relief.[8] An administrative decision may be vitiated by jurisdictional error if the determination was “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.”[9]
[8]Minister for Immigration and Citizenship vSZMDS (2010) 240 CLR 611, [40], [57], [96], [121], [130]-[133], [135].
[9]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 102 (Crennan and Bell JJ); Gill v Minister for Immigration and Border Protection [2017] FCAFC 51, [59] (Griffiths and Moshinsky JJ).
The judicial review of an administrative decision, the challenge of which is based upon irrationality, illogicality or upon findings or inferences of fact said not to be supported on logical grounds, entails consideration of the fact-finding process that was undertaken in reaching an administrative decision. The correct approach is to ask whether it was open to the decision-maker to engage in the reasoning process in the manner it did or to make such findings on the material that was before it.[10] A challenge grounded upon irrationality will not be made out where the impugned decision is one upon which reasonable minds might differ.[11] Nor will an illogicality/irrationality based challenge be made out by merely demonstrating that a finding was factually incorrect.[12] The impugned finding must be shown to have been material to the ultimate decision.[13]
[10]SZMDS, supra (2010) 240 CLR 611, [133] (Crennan and Bell JJ); Minister for Immigration and Citizenship v SZKRT [2013] FCA 317, 151-153 (Robertson J); CQG15 vMinister for Immigration and Border Protection [2016] FCAFC 146, [60] (McKerracher, Griffiths and Rangiah JJ); ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174, [47] (Griffiths, Perry and Bromich JJ); Gill, supra [2017] FCAFC 51, [65] (Griffiths and Moshinsky JJ).
[11]SZMDS, supra (2010) 240 CLR 611, 135; Gill, supra [2017] FCAFC 51, [62]; ARG15, supra [2016] FCAFC 174, [47]; CQG15, supra [2016] FCAFC 146, [60].
[12] ARG15, supra [2016] FCAFC 174, [53].
[13]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [89] (McHugh, Gummow and Hayne JJ); SZWCO v Minister for Immigration and Border Protection [2016] FCA 51, [64]-[67] (Wigney J); Gill, supra [2017] FCAFC 51, [65] (Griffiths and Moshinsky JJ).
To establish illogicality or irrationality sufficient to give rise to jurisdictional error in refusing a Protection visa, it must be demonstrated that the decision as to the state of satisfaction required by s 65 was one which no rational or logical decision maker could have arrived at on the same evidence as was before the Tribunal.[14] By extension, this court cannot conclude that a decision was irrational, illogical or unreasonable because the Tribunal reached one decision over another where the probative evidence was capable of supporting different processes of reasoning which were logically, rationally or reasonably open.[15]
[14] SZMDS, supra (2010) 240 CLR 611, 130 (Crennan and Bell JJ).
[15] SZMDS, supra (2010) 240 CLR 611, 131 (Crennan and Bell JJ).
Extreme illogicality or irrationality must be shown for relief to be available: Minister for Immigration and Citizenship v SZRKT;[16] ARG15 v Minister for Immigration and Border Protection;[17] CQG15 v Minister for Immigration and Border Protection;[18] DAO v Minister for Immigration and Border Protection.[19] For that reason, it is not enough for the question of fact to be one on which reasonable minds may arrive at different conclusions. Put another way, “a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion”: SZOOR v Minister for Immigration & Citizenship.[20]
[16] [2013] FCA 317; (2013) 212 FCR 99, [148] (Robertson J).
[17] (2016) 154 ALD 174, [47] (Griffiths, Perry and Bromwich JJ).
[18] [2016] FCAFC 146, [60] (McKerracher, Griffiths and Rangiah JJ).
[19] (2018) 353 ALR 641, [4], [30] (Kenny, Kerr and Perry JJ).
[20](2012) 202 FCR 1, [84] (McKerracher J, Reeves J agreeing); see also Minister for Immigration and Border Protection v SZUXN(2016) 69 AAR 210, [52], [54]-[56] (Wigney J); DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33, [19], (Tracey, Murphy and Kerr JJ); BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [37], (Perram, Perry and O’Callaghan JJ); Minister for Immigration and Border Protection v Haq [2019] FCAFC 7, [72], (Griffiths, Gleeson and Colvin JJ).
In DYS v Minister for Immigration and Border Protection [2018] FCAFC 33, [19], the Full Court endorsed[21] a statement by Wigney J in Minister for Immigration and Border Protection v SZUXN that:[22]
Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out (citations omitted)
Tracey, Murphy and Kerr JJ then stated:[23]
Where the present ground is relied on and the decision-maker has given reasons for his or her decision, the reviewing court will concentrate on those reasons with a view to deciding whether the reasons demonstrate a justification for the impugned decision.[24]
[21] [2018] FCAFC 33, [19].
[22] (2016) 69 AAR 210, [55].
[23] [2018] FCAFC 33, [21].
[24]Citing cf Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [45]-[47] (Allsop CJ, Robertson and Mortimer JJ).
Accordingly, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning which it adopted.[25]
[25] SZMDS, supra (2010) 240 CLR 611, 133 (Crennan and Bell JJ).
The principles respecting irrationality and illogicality in the process of administrative decision-making were stated in Minister for Immigration and Citizenship v SZMDS.[26] The test is a stringent one and was stated by Crennan and Bell JJ as follows:[27]
. . . the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Their Honours held that a decision will not be illogical or irrational if there was room for a logical or rational person to reach the same decision on the material before the decision maker.[28]
[26] (2010) 240 CLR 611.
[27] (2010) 240 CLR 611, 135.
[28] (2010) 240 CLR 611, [135].
In SZMDS,[29] Crennan and Bell JJ identified three means by which a decision might be shown to be demonstrably illogical or irrational:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
[29] SZMDS, supra (2010) 240 CLR 611, [135]; see also [78], (Heydon J).
This statement of principle has been applied by intermediate appellate and first instance courts on many occasions: see, eg, Minister for Immigration and Border Protection v Sabharwal.[30]In Sabharwal, the Full Court endorsed the analysis of Allsop CJ in Minister for Immigration and Border Protection v Stretton[31] that the question was:
. . . whether a decision-maker could reasonably come to the conclusion reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.
See also Singh v Minister for Home Affairs[32]
[30] [2018] FCAFC 160, [45] (Perram, Murphy and Lee JJ).
[31] [2016] FCAFC 11; (2016) 237 FCR 1, [21].
[32] [2019] FCAFC 3, [57] (Reeves, O’Callaghan and Thawley JJ).
I apply those principles to the present application. The applicant’s submissions addressed the following matters.
First, the applicant complained of the statements at [45] where the Tribunal recorded that “he said he was running away from the process of being dishonoured by his ‘adopted’ family in Malaysia” and his claim that he was not sure why “they have disowned him.”[33] The applicant drew attention to the distinction between being ‘dishonoured’ and ‘disowned’ and relied upon the distinction as demonstrating that the Tribunal had misconceived his claim. In my view, there is no substance in this complaint. An examination of the Reasons at [45]-[46] confirms that the Tribunal explored the circumstances of the applicant’s separation from his adoptive family in a way that was consistent with his claim. In essence, the Tribunal was providing a record of the applicant’s evidence. It was not making adverse credibility findings.
[33] Applicant’s submissions filed 3 January 2019, [7]-[10].
Secondly, the applicant was critical[34] of the finding in the Reasons at [50]: “as to why, considering that he had completed quantity surveying studies in Malaysia and had worked for up to 2 years as a surveyor, he would not have been able to gain work upon return to Malaysia.” The applicant seemed to complain that the finding he would be able to work in Malaysia was grounded on a false assumption. The applicant’s visa application confirmed that he had obtained a diploma in Quantity Surveying in 1997 in Malaysia. The Tribunal recorded the applicant’s evidence at [47], that prior to coming to Australia he had also worked in his uncle’s surveying firm in Malaysia as a surveyor for up to two years. This complaint is without merit. Again, the Tribunal was not making adverse credibility findings. It also noted that the applicant agreed he would be able to obtain work: [64].
[34] Applicant’s submissions filed 3 January 2019, [11].
Thirdly, the applicant complained of the manner in which the Tribunal enquired as to why he could not obtain proof of his qualifications from the institution where he had completed his study in Malaysia in 1997.[35] While the applicant framed his complaint in terms of the failure of the Tribunal to discharge its duty to obtain such information, and relied upon a submission that he could no longer obtain proof of his qualifications, it was for the applicant to adduce evidence relating to the issues arising in relation to the decision under review. I do not accept that, in the circumstances of this case, the Tribunal was under a duty to obtain such information. The applicant relied upon an email chain (being Annexure III to his submission), which addressed the availability of his academic transcript, however, it post-dated the Tribunal’s consideration of the matter and could not be relied upon to demonstrate error. Contextually, the applicant told the Tribunal that he had not attempted to obtain his academic transcript by contacting his estranged adoptive family or from the institution at which he had studied. He said that he had not done so. Elsewhere, the applicant had also given evidence to the Tribunal that he could obtain work: [64]. I am not satisfied that there was, as contended by the applicant, any want of good faith by the Tribunal in the manner in which it addressed this issue.
[35] Applicant’s submissions filed 3 January 2019, [12]-[15].
Fourthly, the applicant challenged the Tribunal’s finding that he would attempt to stay in Australia.[36] I do not understand the basis for this complaint. The impugned statement at [54] was, relevantly, that he said “there was also a possibility he would attempt to stay in Australia.” Properly understood, the Tribunal was doing no more than recording the applicant’s statement as made during the hearing. In any event, having regard to the history of the matter, that finding was entirely open.
[36] Applicant’s submissions filed 3 January 2019, [16]-[19].
Fifthly, the applicant complained of the findings that concerned his financial resources.[37] I also have difficulty in understanding this complaint. In particular, the Tribunal recorded the applicant’s statement that “in the event the applicant returns to Malaysia he will have access to an amount of about $600 AUD, being about 1800 RM.”: [79](e)(iii). On a fair reading, the Reasons involved consideration of the applicant’s written submission before the Tribunal of the average salary paid to quantity surveyors and to the current rate of employment for Malaysians males: [75], [79](e)(v). The finding is also to be viewed in the context that the applicant had been gainfully employed for the majority of his fourteen years in Australia: [61].
[37] Applicant’s submissions filed 3 January 2019, [20].
Sixthly, the applicant challenged the Tribunal’s finding of its significant concerns that, having overstayed his Student visa by 12 years, and with a good command of English, he had not been aware that he could apply for a Protection visa.[38] I see no reason to regard the Tribunal’s analysis of this issue as being erroneous.
[38] Applicant’s submissions filed 3 January 2019, [21]-[31].
Seventhly, the applicant complained of the finding that his knowledge of conditions in Malaysia had been gained indirectly and not through personal experience.[39] The Tribunal recorded that the applicant “has confirmed that his knowledge of conditions is based upon articles and information sourced through the electronic media whilst in detention”: [58]. So much was confirmed by the applicant’s written submissions to the Tribunal dated: 27 December 2017, see e.g., [57] (Attachment B); 17 January 2018 (Attachment C); 9 March 2019 and country information which he supplied. His complaint on this topic was unjustified.
[39] Applicant’s submissions filed 3 January 2019, [32]-[37].
Eighthly, the applicant criticised the findings at [62]-[63].[40] The Tribunal enquired of the applicant why, in the period he had been in Australia, he had not returned to Malaysia, and noted his response that he had nothing to go back to and that it would be hard to find work. It then identified reasons why it did not accept it would necessarily be difficult for the applicant to obtain work, including by putting to him certain country information which recorded a national male labour force participation rate of ~80.4%. The Tribunal recorded the applicant’s response: “The applicant acknowledged that a lot of people now have jobs in Malaysia but that 90% of homeless people also have jobs but have very low income. Further, he stated it does not matter how high the employment rate is.” There is no proper basis for criticism of the Tribunal by having recorded the applicant’s acknowledgement that, if returned to Malaysia, it was likely he would be able to obtain work: [64]. Again, I do not see any substance in the applicant’s complaint as to the manner in which the Tribunal had addressed this issue. In short, the issue was introduced for discussion with the applicant, reference was made to available DFAT country information and the applicant responded to it.
[40] Applicant’s submissions filed 3 January 2019, [38]-[40]; see also at [69]-[72].
Ninthly, the applicant challenged the finding that it was unlikely he would be detained for any significant period.[41] In my opinion, such finding was open on the available country information and in particular, the information which was obtained in response to the questions which were posed to DFAT: see [74]-[76] (Questions 1-3). It is settled that the choice and assessment of the weight to be afforded to country information was a matter for the Tribunal, and was part of its fact-finding function. Insofar as the applicant made generalised complaints of a failure to accord him natural justice, it will be recalled that the Tribunal adjourned the hearing for the deliberate purpose of obtaining more up-to-date country information and that it did so.
[41] Applicant’s submissions filed 3 January 2019, [41]-[44].
Tenthly, the applicant criticised the findings that it was unlikely he would be classified as a destitute person for the purposes of the DPA.[42] Again, the Tribunal’s finding was well open on the available country information. In relation to this issue, it should be recognised that the Tribunal gave the matter detailed consideration: [74]-[77]. The applicant’s criticisms in this regard are unwarranted. Relatedly, his generalised complaints of bias were misconceived.[43]
[42] Applicant’s submissions filed 3 January 2019, [45]-[61], [65]-[68], [75]-[87], [90].
[43] Applicant’s submissions filed 3 January 2019, the [53], [93].
Eleventhly, the applicant challenged the observation that there was no basis for a suggestion that he would be returning to Malaysia as a suspect for any criminal investigation or that he would, for that reason, be tortured.[44] The Tribunal put this proposition to the applicant at [74]. Having regard to the detailed country information which the Tribunal sought and considered, it was open for it to find that there was no rational basis for a belief that the applicant would be tortured upon return to Malaysia. The complaint on this issue is without foundation.
[44] Applicant’s submissions filed 3 January 2019, [62]-[64], [73]-[74].
Twelvethly, the applicant challenged the substantive finding that he had a subjective fear of persecution by reason of his membership of particular social groups.[45] The Tribunal made this finding at [87]; however, the gravamen of the applicant’s complaint was that the social group had been too narrowly defined as comprising only ‘failed asylum seekers’ and ‘unemployed Malaysian nationals’ returning to Malaysia. Specifically, the applicant complained that he should also have been classified as falling within a further particular social group: destitute Malaysian nationals. I conclude that such a general finding was subsumed within the finding that was made. Whether or not the Tribunal ought to have found that the applicant had a subjective fear of that kind, for the reasons it gave and having regard to its detailed analysis of the DFAT country information that it obtained, it was entirely open to the Tribunal to conclude that, objectively, the applicant did not have a well-founded fear of persecution as a member of a particular social group. Equally, for the same reasons, it was open to conclude there were not substantial grounds for believing, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, that there was a real risk the applicant would suffer significant harm.
[45] Applicant’s submissions filed 3 January 2019, [89]-[90].
In summary, the applicant contended that the Tribunal erred by failing to correctly appreciate: the nature of his estrangement from his family;[46] his inability to secure gainful employment in Malaysia;[47] the likelihood of his being detained and interrogated under the DPA;[48] and the likelihood of his being detained and interrogated due to failing to hold a valid passport.[49] In my opinion, the Reasons demonstrate that the Tribunal clearly understood and gave serious consideration to his claims. The question for the Tribunal was whether the applicant was a refugee or otherwise entitled to complementary protection. The ultimate finding that it was not satisfied the applicant’s circumstances gave rise to a real risk or chance of harm, was open to the Tribunal.
[46] Applicant’s submissions filed 3 January 2019, [7]-[10].
[47] Applicant’s submissions filed 3 January 2019, [17], [40]-[45], [66]-[72].
[48] Applicant’s submissions filed 3 January 2019, [32]-[39], [46]-[52].
[49] Applicant’s submissions filed 3 January 2019, [62]-[64], [73]-[74].
In my opinion, the applicant failed to identify any significant claim or evidence which was before the Tribunal which was not considered by it or referred to in the Reasons. I do not accept that the Tribunal’s credibility findings lacked a logical or rational basis. Insofar as the applicant complained of a breach of s 422B of the Act, I discern no error in the approach taken by the Tribunal. Nor was there any failure to comply with the obligation imposed by s 430(1)(c) of the Act to set out its findings on material questions of fact. It was not incumbent upon the Tribunal to mention every piece of evidence in arriving at its findings.
For the avoidance of doubt, my reasons to this point entail a rejection of each of the applicant’s unparticularised grounds of review which I have addressed by reference to his written and oral submissions.
Section 438 Certificate
As model litigant, the Minister drew attention to the s 438 Certificate and adduced evidence in relation to the documents which it covered.
The affidavit made by the Minister’s solicitor was based upon her perusal of the files held by the Department and Tribunal respectively.[50] The deponent exhibited documents to her affidavit comprising seven folios (folios 33-39, 12 pages) that she had extracted from the departmental file and which were the subject of the s 438 Certificate.
[50] The affidavit sworn 20 December 2018 was served well in advance of the hearing.
It was correctly submitted that the s 438 Certificate was invalid. The fact that a document may contain ‘internal departmental working documents’ was not something that ‘could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding’ within the meaning of par 438(1)(a) of the Act.
The Minister accepted that neither the s 438 Certificate, nor the documents to which it related, had been disclosed to the applicant. That certificate, and the related documents, are not mentioned in the Reasons.
Ordinarily, the existence of a s 438 Certificate should be disclosed so as to permit an applicant to make submissions about it. A failure to do so may give rise to a denial of procedural fairness. However, a denial of procedural fairness will constitute jurisdictional error only where the breach is material. The breach of the obligation of procedural fairness will be material where it operates to deny an applicant the opportunity to give evidence or make submissions and thereby deprives the applicant of the possibility of a successful outcome.[51]
[51] Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599, [2].
A number of brief observations should be made respecting the operation of the principles of procedural fairness. First, if materiality is in issue, it is to be resolved as a question of fact and is to be determined upon the inferences available from the evidence. Secondly, it is settled that the applicant bears the onus of proof on the issue of materiality. That is, the applicant must establish, to the requisite standard, that he or she was deprived of the possibility of a successful outcome by reason of the non-disclosure. Thirdly, “procedural fairness ordinarily requires that an applicant be apprised of an event which results in an alteration of the procedural context in which an opportunity to present evidence and make submissions is routinely afforded.” Fourthly, and accordingly, nondisclosure of a s 438 Certificate will constitute, without more, a breach of the implied obligation of procedural fairness. Fifthly, for that breach to constitute jurisdictional error, the breach must give rise to a practical injustice in the sense that it must result in the denial of an opportunity to make submissions or adduce evidence, and that denial must be material to the ultimate decision. Sixthly, absent a contrary indication, a Tribunal can ordinarily be expected to leave documents or information which are the subject of a 438 Certificate out of account when reaching a decision and, for that reason, a court on judicial review can be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.[52]
[52]cfParvin v Minister for Immigration and Border Protection [2019] FCAFC 86, [46]-[51] (O’Callaghan J, Perran and Perry JJ agreeing) citations omitted.
Non-disclosure of the s 438 Certificate thus constituted a breach of the Tribunal’s implied obligation of procedural fairness. The dispositive issue is whether that breach constituted jurisdictional error. I have assumed in favour of the applicant that the materiality of the breach was in issue. Although, the applicant bore the onus of proof on materiality, I am not prepared to infer that the breach was material. The documents the subject of the certificate addressed the applicant’s visa history, the delegate’s concerns about the applicant’s 12-year delay in applying for protection and whether the applicant proposed to return to Malaysia. The applicant was on notice of the issues contained in the documents the subject of the s 438 Certificate. Critically, it is clear that each of those matters was discussed by the Tribunal with the applicant in detail in the course of the hearings: Reasons, [44]-[62].
In all of the circumstances, I am not satisfied that the applicant was deprived of the possibility of a successful outcome by reason of the non-disclosure. While the s 438 Certificate was not disclosed, that breach gave rise to no practical injustice in relation to the review. Specifically, it did not result in the denial of an opportunity for the applicant to make submissions or to adduce evidence. Both his oral submissions and extensive written submissions confirm that he was afforded and took that opportunity including in relation to the issues addressed by those documents. In reaching its decision, the Tribunal paid no regard to the documents or information the subject of the s 438 Certificate. Having regard to all of those considerations, I am prepared to infer that those documents, and the information contained in them, were left out of account by the Tribunal. It follows that I am satisfied the failure to disclose to the applicant the existence of the s 438 Certificate and subject documents did not cause him any practical unfairness.
It also follows that I consider the non-disclosure was not material to the Tribunal’s ultimate decision. Accordingly, I conclude that the breach of the implied obligation to accord procedural fairness to the applicant did not constitute jurisdictional error.
Conclusion
For the reasons above, the application is dismissed.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 26 November 2019
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