ANI15 v Minister for Immigration
[2017] FCCA 2129
•5 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANI15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2129 |
| Catchwords: MIGRATION – Judicial review application – Protection Visa – Malaysian citizen – whether failure to consider relevant material – whether irrelevant material considered – whether denial of procedural fairness – whether unreasonableness – refusal of adjournment – hearing by video-link – whether jurisdictional error – writs issued. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3, 5, Sch.1, cll.(da) and (db) Freedom of Information Act 1982 (Cth) Migration Act 1958 (Cth), Part 7, Div.4, ss.5E, 36(2), 65, 66, 289A, 338, 357A, 379G, 411, 422B, 424A(3), 425, 429A, 474, 476, 494B(4), 494D Migration Regulations 1994 (Cth), reg.2.16 |
| BVZ15 v Minister for Immigration & Border Protection [2016] FCCA 343 Mallik v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1134 Pathania v Minister for Immigration & Border Protection [2015] FCA 1262; (2015) 240 FCR 254 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 SZFOH v Minister for Immigration & Citizenship [2007] FCAFC 63; (2007) 159 FCR 199; (2007) 241 ALR 653; (2007) 95 ALD 540 SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 SZRRD v Minister for Immigration & Border Protection [2015] FCA 577; (2015) 232 FCR 407 WZATA v Minister for Immigration & Anor [2016] FCCA 305 |
| Applicant: | ANI15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 158 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 16 March 2016 |
| Date of Last Submission: | 16 March 2016 |
| Delivered at: | Perth |
| Delivered on: | 5 September 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr D Carroll |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That a writ of certiorari issue quashing the decision of the former Refugee Review Tribunal made on 17 March 2015.
That a writ of mandamus issue requiring the Administrative Appeals Tribunal to re-hear the application for review made by the applicant on 11 February 2015 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 158 of 2015
| ANI15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 17 March 2015. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant the applicant a Protection (Class XA) visa (“Protection Visa”).
The Tribunal Decision appears in the Court Book (“CB”) at CB 168-176.
Factual and procedural background
The factual and procedural background is as follows:
a)the applicant is a citizen of Malaysia who first arrived in Australia on 9 July 2000 on a student visa (“Student Visa”): CB 22 and 80;
b)on 31 August 2002 the applicant's Student Visa ceased, and the applicant remained in Australia unlawfully: CB [80];
c)on 9 December 2014 the applicant was located in the community and thereafter detained at the Villawood Immigration Detention Facility (“Villawood IDF”) in NSW: CB 80;
d)on 23 December 2014 the applicant lodged an application for the Protection Visa: CB 9;
e)on 12 January 2015 the applicant’s migration agent (“Migration Agent”) faxed a Form 956 “Advice by a migration Agent/exempt person of providing immigration assistance” to the Villawood IDF: CB 59-62. The Form 956 indicated that:
i)the Migration Agent, in his capacity as a registered migration agent, was providing the applicant with assistance in relation to his Protection Visa application: CB 60-61; and
ii)the Migration Agent's business or residential address and address for correspondence was “Suite 11, 225 The Broadway BROADWAY 2007”: CB 60;
f)on 16 January 2015 the applicant attended an interview with the Delegate in relation to his Protection Visa application: CB 82;
g)on 5 February 2015 the Delegate decided to not grant the applicant a Protection Visa because he was not satisfied that Australia owed the applicant protection obligations under s.36(2)(a) or (aa) of the Migration Act: CB 79-92. The Delegate sent notification of the refusal decision by registered post addressed to the Migration Agent, not at the address notified in the Form 956: see [3(e)(ii)] above, but at Level 8, Suite 807, 35 Spring Street, Bondi Junction NSW 2022: CB 66 and 93;
h)on 11 February 2015 an “eR1 - Application for review to the Refugee Review Tribunal” form was lodged electronically with the Tribunal: CB 96-97. The eR1 form recorded the Migration Agent's details under the heading “Representative details”, and under the heading “Document upload” stated “NIL DOCUMENTS UPLOADED”: CB 96;
i)on 3 March 2015 the applicant was relocated from the Villawood IDF to the Yongah Hill Immigration Detention Centre (“Yongah Hill IDC”) in Western Australia: Affidavit of David John Carroll affirmed 29 February 2016 at [4] (“Carroll Affidavit”);
j)on 16 March 2015 the applicant appeared before the Tribunal (“Tribunal Hearing”) to give evidence and present arguments: CB 159. The Migration Agent did not attend the Tribunal Hearing: CB 172 at [24]; and
k)on 17 March 2015 the Tribunal Decision affirmed the Delegate’s Decision: CB 168-176, and the Tribunal informed the applicant of the Tribunal Decision by email sent to the Migration Agent at [email protected]: CB 165.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)summarised the applicant's Protection Visa claims in his application and his 27 January 2015 statement, the supporting documents submitted by the applicant, and the procedural history of his Protection Visa application and recorded the applicant's claim to fear harm from corrupt Malaysian authorities on the basis of his:
i)Chinese-Malaysian ethnicity;
ii)lengthy absence from Malaysia;
iii)alleged homelessness; and
iv)Christianity: CB 169-170 at [2] and [4]-[12];
b)addressed the history of the application to the Tribunal for review, and in particular the Migration Agent's requests for adjournment of the 16 March 2015 Tribunal Hearing, and its refusal of the adjournment application made on 16 March 2015 by the Migration Agent: CB 170-172 at [13]-[26];
c)set out its reasons for affirming the Delegate’s Decision: CB 173-176 at [32] [44]. Relevantly, the Tribunal found that:
i)the applicant had not claimed to be subjected to harm in Malaysia in the past, and there was no information to suggest that he would be harmed because he had been away from Malaysia and had overstayed his Student Visa in Australia: CB 173-174 at [33]-[34];
ii)country information from the Department of Foreign Affairs and Trade (“DFAT”) indicated that ethnic Chinese do not experience discrimination or violence on a day-to-day basis, and there was no persuasive information to suggest that the applicant would be harmed due to his ethnicity: CB 174 at [35];
iii)on the basis of the lack of any past harm at the hands of Malaysian authorities, there was no real chance that the applicant would be subjected to harm by corrupt officers and authorities, be imputed with an adverse political opinion, or be charged with security related offences or sedition if he returned to Malaysia: CB 174 at [36];
iv)while accepting that the applicant has no family in Malaysia, in light of the applicant's education, work history and modest assets the applicant would not be regarded as being homeless or destitute and would not be detained, mistreated or abused for this reason: CB 174-175 at [37]; and
v)the applicant was not a Christian and would not face a risk of harm because of his religion: CB 175 at [38];
d)found that the applicant did not therefore meet the requirements of s.36(2)(a) of the Migration Act: CB 176 at [41] and [42]; and
e)found that there were not substantial grounds for believing that the applicant would suffer significant harm on return to Malaysia, and that Australia did not therefore owe the applicant protection obligations under s.36(2)(aa) of the Migration Act: CB 175-176 at [39], [40] and [42].
The Judicial Review Application
The Judicial Review Application was filed on 15 April 2015.
The grounds set out in the Judicial Review Application are set out hereunder: grounds 1 and 2 at [13] below, grounds 3, 4, 5 and 6 at [21], [75] and [77] respectively below:
The Applicant’s Affidavit in support of the Judicial Review Application repeats the grounds of the Judicial Review Application and attaches a copy of the Delegate’s Decision and the Tribunal Decision.
On 2 September 2015 a Registrar of the Court ordered that:
a)the applicant file and serve, on or before 28 October 2015, an amended Judicial Review Application giving particulars of the grounds of review, and any further affidavits upon which he intended to rely at final hearing;
b)the applicant file and serve an outline of submissions not less than 42 days before final hearing;
c)the Minister file and serve an outline of submissions not less than 21 days before final hearing; and
d)the application be listed for a final hearing at 10.15am on 25 March 2016 before a Judge.
On 21 January 2016 by email to the parties the Court relisted the application for final hearing at 10.15 on 21 March 2016.
On 8 February 2016 the applicant filed an outline of submissions (“Applicant’s Written Submissions”). The applicant did not file any amended Judicial Review Application or further affidavits. The Minister also filed an outline of submissions in accordance with the Court’s orders of 2 September 2015 (“Minister’s Written Submissions”). Subsequently, on 29 February 2016 the Minister filed the Carroll Affidavit.
The Applicant’s Written Submissions are not organised by reference to the grounds of the Judicial Review Application, and to a certain extent appear discursive, as well as, in some respects, putting new material to the Court which was not before the Tribunal. There are, however, also aspects of the submissions which appear to raise new or associated grounds of review, which the parties addressed at hearing and which the Court has dealt with in the course of these Reasons for Judgment.
The Applicant’s Written Submissions also refer to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). The Tribunal Decision is a privative clause decision: Migration Act s.474. If the Tribunal Decision is affected by jurisdictional error then it is a purported privative clause decision: Migration Act s.5E. The ADJR Act does not apply to privative clause decisions or purported privative clause decisions: ADJR Act, s.3, Sch.1, cll.(da) and (db). As the applicant is self-represented, any submissions referring to the grounds of administrative review which appear in s.5 of the ADJR Act will be taken as submissions to jurisdictional error generally.
Grounds 1 and 2
Grounds 1 and 2 are as follows:
1. The Tribunal fail to take into account of relevant informations, materials and considerations
2. Tribunal ignored relevant informations and materials
(Transcribed from the Applicant’s Written Submissions without amendment).
Grounds 1 and 2 do not indicate which information, material or consideration the Tribunal failed to take into account or ignored. The failure to particularise a ground of review is itself sufficient to warrant dismissal of that ground: WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev (“WZATH”) from which an appeal by the applicant was dismissed: WZATH v Minister for Immigration & Border Protection [2014] FCA 969.
The Tribunal had regard to the applicant's written claims: CB 169-170 at [4]-[9], and the material provided by the applicant in support of his Protection Visa application: CB 170 at [10].
In the Applicant’s Written Submissions the following matters which are arguably relevant to grounds 1 and 2 were set out:
42. The Tribunal identify the wrong issue when concluded that:
33 ...... constant harassment of corrupt officers ...... subjected to harm by the Malaysian authorities in the past.
43. 'Constant harassment of corrupt officer' was when they abuse of power using threats or intimidation for the purposes of extorting “coffee money” as it is a common practice among corrupt authorities in Malaysia which result of an intentional infliction of mental or emotional suffering cause by threats.
44. As in the case of “Malaysian Police finding ways to squeeze money from drivers: The saga of a latest victim of corruption and inefficiencies” by SoYAd [Sep 2014].
45. Another report Sin Chew Daily [June 2015] stated “Taiwan TV station TVBS reported that a Taiwanese tourist was in Langkawi for holiday. Prior to returning home he was stopped by two police accusing him of stealing two pieces of women's underwear in a duty free shop. The policemen ask him for 1,000 Taiwan dollar (about RM120) as coffee money to settle the case”.
46. Another case from Dr. Gedeon - “Police brutality, corruption and abuse of power” [July 2010]:-
I am an Australian Citizen and used to live in Malaysia on a MM2H visa. In 2007, I was assaulted. I then went to the police station to make a report and instead of taking my report, the police ARRESTED AND IMPRISONED ME FOR 12 HOURS.
They also punched me hard in the stomach and pointed TWO GUNS at my head.....Sukaham started investigating this matter and wrote FIVE times to the police so far but the police have not responded to any letter!
I have also sent FIVE letters to the Minister for Tourism, NINE letters to the Police Inspector. EIGHT emails to the Ministry of Foreign Affairs, EIGHT emails to the Ministry of Home Affairs, SIX emails to the Political Secretary of His Majesty King of Malaysia BUT NO ONE HAS RESPONDED OR EVEN ACKNOWLEDGED MY COMPLAINT AGAINST TIIE POLICE!!!!
47. Malaysia is not part of the UNHCR or its protocol and they do not have any obligation or any regards about Human Rights. As reported by Human Rights Watch, World Report 2014: Malaysia:
Suara Rakyat Malaysia (SUARAM), a leading Malaysian human rights organisation, faced hostile government investigations throughout the year. The Malaysian government investigated SUARAM under three different laws between July 2012 and February 2013, under pressure from ministers who publicly attacked SUARAM for receiving foreign funds.
48. The Tribunal submitted claimed that is not tested by cross examination as follow:
35 ...... DFAT accessed that while ethnic Chinese may face low level of discrimination when attempting to gain entry into the state tertiary system or the civil-service, generally they do not experience discrimination or violence on a day-to-day basis...... The Tribunal is of the view that the information provided by DFAT is independent and reliable.
49. As reported in Say No to racism in Malaysia - CNN iReport [May 2013]:
……there are plenty of UMNO members including their supporter raise racial discrimination toward Chinese society in Malaysia.
Their main media especially Utusan Newspaper come out the headline show “What does Chinese want actually”.....just want to isolate between Chinese and Malay races in this country, hence making more conflict between this two races. This show how was 13 May riot happened during year 1969 due to serious conflict between Malaysian Chinese society and Malay society and this conflict actually created by UMNO.
UMNO like to raise racial discrimination for their political objectives because they believe all the Malay citizen will give a fully support to their party. Therefore, they can continue on corruption and cronyism.
50. Despite being given the information, the Tribunal fail to disclose the claimed to be tested and rely on inaccurate, incomplete or out of date information and did not give a proper findings of fact which leads to error of law.
(Transcribed from the Applicant’s Written Submissions without amendment).
The Applicant’s Written Submissions generally in grounds 1 and 2 go to the merits of the Tribunal Decision. This Court cannot undertake merits review of the Tribunal Decision, and therefore the submissions are of no relevance or assistance to the Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”).
The Applicant's Written Submissions at [44]-[46] challenge the Tribunal Decision findings by relying upon material that was not before the Tribunal. It was for the applicant to put evidence and materials before the Tribunal so as to persuade the Tribunal to the necessary degree of satisfaction that the applicant was entitled to a Protection Visa: Migration Act, s.65. No jurisdictional error arises from the Tribunal's failure to consider material that was not before it, and in particular which was not put before it by the applicant.
To the extent that the applicant challenges the Tribunal's reliance on country information that was before the Tribunal, the applicant cannot succeed as the choice and weight to be given to country information was a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ (“NAHI”).
For the above reasons no jurisdictional error is established by grounds 1 and 2.
Ground 3
Ground 3 is as follows:
3. Tribunal was in error by making the decision in denial of procedural fairness and denial of natural justice
The Applicant’s Written Submissions deal at length with the issue of procedural fairness generally, and by reference to s.357A(3) of the Migration Act, rather than the relevant section, which is s.422B of the Migration Act, although little turns on that because the substance of the provisions is essentially the same.
The substance of this ground relates to the Tribunal’s refusal to adjourn the Tribunal Hearing further when that application was made when the Migration Agent contacted the Tribunal on the day of the hearing and requested a further adjournment (an earlier request for an adjournment from 9 March 2015 having been granted, but only to 16 March 2015): CB 171-172 at [17]-[22]. Thus, the alleged denial of procedural fairness (as it is now usually known) for the purposes of ground 3 can be seen as the refusal of the Tribunal to grant a further adjournment of the Tribunal Hearing on 16 March 2015.
Ground 3 also overlaps with a ground which emerges from the Applicant’s Written Submissions, namely that the refusal to grant the adjournment of the Tribunal Hearing on 16 March 2015 was unreasonable: Applicant’s Written Submissions at [5]-[8] and [10]. It is convenient to treat this overlapping ground of unreasonableness as part of ground 3: a refusal to adjourn may be either a denial of procedural fairness or unreasonable.
The application for adjournment made on the day of the Tribunal Hearing was considered at some length by the Tribunal as follows at CB 172 at [22]-[25]:
22. On 16 March 2015, the applicant's representative again contacted the Tribunal by telephone to say that he had not received the department's decision record and would not be able to represent the applicant at the hearing as he was unaware of the applicant's claims. He further stated that the applicant was not correctly notified of the department's decision. The applicant's representative was advised by a Tribunal officer that he would be able discuss these issues with the Tribunal at the hearing. He said, however, that he would not attend the hearing and that he intended to appeal the decision as the applicant was not correctly notified of the department's decision.
23. The Tribunal carefully considered the applicant's representative's request for the hearing to be postponed. However, for the reasons that follow, the Tribunal decided to conduct the hearing as scheduled.
24. As noted above, the applicant's representative referred to his pending request to the department to access documents relating to the applicant's case, his inability to obtain full instructions and not being in possession of the delegate's decision as the reasons for the postponement request. Initially, given that the applicant was transferred from Villawood Immigration Detention Centre to a detention facility in WA, the Tribunal agreed to the request and postponed the hearing for one week. The Tribunal is of the view that this would have provided the applicant's representative with ample opportunity to contact the applicant and obtain further instructions. The Tribunal, however, was not prepared to postpone the hearing for another month or so, while the applicant remained in detention, to await his representative's assessment of the department's documents in relation to his application. As it was repeatedly conveyed to the applicant's representative prior to the hearing, he could have raised any concerns at the hearing and the Tribunal was prepared to grant him further time after the hearing and after he received the applicant's file to provide submissions or additional information. The applicant's representative, however, did not attend the bearing.
25. The department's file shows that the applicant's representative signed Form 956 (Advice by a migration agent/exempt person of providing immigration assistance) on 12 January 2015 and faxed the document to the department on the same day. He also requested a meeting with the applicant on 13 January 2015. At the hearing, after warning the applicant of his entitlement to claim Legal Professional Privilege, the Tribunal asked him when he had spoken to his representative for the first time. He stated that he first met his representative before his interview with the department and also spoke to him after the interview. He claimed that the delegate had initially told him that his representative would not be able to attend the interview, but subsequently had advised him that this was optional. When the Tribunal put to him that, regardless of what the delegate might have told him, his representative would have known that he could attend the interview, he said he did not understand legal processes in Australia. The applicant stated that since then he has spoken to his representative on a number of occasions, including before and after being transferred to Western Australia. The Tribunal does not accept that the hearting should have been postponed because the applicant's representative was unaware of the applicant's claims and therefore could not represent the applicant before the Tribunal.
Relevant to ground 3 the Applicant’s Written Submissions observed as follows:
23. In line with procedural fairness, the person concerned has a right:
·to an opportunity to reply in a way that is appropriate for the circumstances;
·for their reply to be received and considered before the decision is made;
·to receive all relevant information before preparing their reply. The case to be met must include a description of the possible decision, the criteria for making that decision and information on which any such decision would be based. It is most important that any negative information the agency has about the person is disclosed to that person. A summary of the information is sufficient; original documents and the identity of confidential sources do not have to be provided;
·to a reasonable chance to consider their position and reply. However, what is reasonable can vary according to the complexity of the issue, whether an urgent decision is essential or any other relevant matter; and
·to genuine consideration of any submission. The decision-maker needs to be fully aware of everything written or said by the person, and give proper and genuine consideration to that person's case.
…
30. Many applicants for adjournment relate to obtaining more evidence, that being one very important reason for an adjournment.
31 . In this case, it was about awaiting access of documents from the Department. Fairness dictates that the Tribunal adjourns to allow a correct submission to be used in determining the review.
32. The Tribunal concluded in cursorily dismissing for an adjournment as follows:
24 .... The Tribunal, is of a view that this would have provided the applicant's representative with ample of opportunity to contact the applicant and obtain further instructions .... the Tribunal was prepared to grant him further time after the hearing and after he received the applicant's file to provide submissions or additional information.
33. The denial is simply the denial of an opportunity to present a correct adequate submission and it is inappropriate and unfair to provide submission or additional information after the hearing as where conclusion already been formed.
34. In fact of what happened during the hearing was a partial hearing because of the denial of a the opportunity of a fair hearing.
…
37. The Minister for Immigration v Bhardwaj (2002) 209 CLR 397 observed, at 611...
A failure to accede to a reasonable request for an adjournment can constitute procedural fairness
38. Another example in Sullivan v Department of Transport (1978) 1 ALD 383, Deane J at 403…
A refusal to grant an adjournment can constitute a failure a failure to give a party to a proceeding the opportunity of adequately presenting his case.
39. The fact that the inordinate delay from the Department to provide my rep access to the documents in order to provide a cogent submission was totally outside of our control.
(Transcribed from the Applicant’s Written Submissions without amendment).
The Applicant’s Written Submissions refer to s.357A of the Migration Act. Section 357A of the Migration Act does not apply to Part 7-reviewable decisions: s.338(1)(b) of the Migration Act. The Tribunal Decision was to refuse the Protection Visa application, and was therefore a Part 7-reviewable decision: s.411(1)(c) of the Migration Act. Section 422B of the Migration Act applies to Part 7-reviewable decision. Therefore, the applicant was only entitled to the rights afforded him under Part 7, Division 4 of the Migration Act.
The applicant relies on the words “fair and just” which appear in both ss.357A and 422B of the Migration Act. The meaning of the words “fair and just” is not discerned from reading s.422B of the Migration Act alone but reading it as it applies to the Tribunal Decision, and thus what is “fair and just” in relation to particular acts by the Tribunal may be discerned from the purpose of the relevant provision, as well from other surrounding provisions and Part 7 of the Migration Act as a whole: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [58] per Hayne, Kiefel and Bell JJ (“Li”). Further, s.422B of the Migration Act is not capable of being breached itself, rather, it controls the way in which the Tribunal conducts the review by way the other provisions in Part 7 of the Migration Act: Li at [58] per Hayne, Kiefel and Bell JJ.
In considering the applicant’s allegations of a denial of procedural fairness and unreasonableness by reason of the Tribunal’s refusal to further adjourn the Tribunal Hearing on 16 March 2015 it is apparent that the Court must give consideration, both individually and collectively, to a number of issues, including the following:
a)the failure of the Department of Immigration and Border Protection (“Department”) to notify the Migration Agent of the Delegate’s Decision in accordance with s.494D of the Migration Act;
b)the applicant’s FOI request; and
c)the applicant’s capacity to give instructions to the Migration Agent once he had been transferred to Yongah Hill IDC.
The Migration Agent first notified the Department on 12 January 2015 that he was authorised to receive correspondence in relation to the applicant's Protection Visa application on the applicant's behalf: CB 59-61. Pursuant to s.494D(1) of the Migration Act, from 12 January 2015 the Minister was required to give the Migration Agent, instead of the applicant, any documents in connection with the applicant's Protection Visa application.
On 5 February 2015 the Delegate purported to give the Migration Agent notification of the Delegate’s Decision to refuse the applicant's Protection Visa application via prepaid post, that being one of the methods prescribed by s.494B(4) of the Migration Act. Notification of the Delegate’s Decision was not however sent to the Migration Agent at an address provided by the Migration Agent for the purposes of receiving documents: compare CB 60 with CB 66 and CB 93, and see [3(e)(ii) and (g)] above.
On 11 February 2015 at 2.15pm the applicant acknowledged receipt by hand of a copy of the Delegate’s Decision refusing his Protection Visa application, and advised that he was notified by the Migration Agent at some point between 5 February 2015 and 11 February 2015 that his Protection Visa application had been refused: CB 95.
On 11 February 2015 the applicant lodged an application for review of the Delegate’s Decision with the Tribunal: CB 96-97. By letter dated 12 February 2015 sent to the Migration Agent's email address, the Tribunal acknowledged receipt of the application for review: CB 100.
On 2 March 2015 the Migration Agent informed the Tribunal that he had only recently been instructed by the applicant and was awaiting the result of a request to access all relevant documents and information under the Freedom of Information Act 1982 (Cth) (“FOI Act”) from the Department: CB 123.
On 3 March 2015 the applicant was relocated from the Villawood IDC in suburban western Sydney to Yongah Hill IDC in rural Western Australia: Carroll Affidavit at [4].
On 6 March 2015, following the Migration Agent's advice that the applicant had been relocated to Yongah Hill IDC, and a request for an adjournment: CB 125-126, the Tribunal postponed the hearing from 9 March 2015 to 16 March 2015: CB 129-132.
On 12 March 2015 the Migration Agent advised the Tribunal that he had not received the documents under the FOI Act request, including the Department's file, and was yet to obtain instructions from the applicant, and requested a further adjournment for three weeks: CB 145-146.
On 13 March 2015 the Tribunal refused the further adjournment request: CB148-151, and a Tribunal officer advised the Migration Agent that “any issues can be discussed at the hearing”: CB 147. The Migration Agent again reiterated that he was unaware of the applicant’s claims, that access to documents on the Departmental file would not be given until 23 March 2015, and that it would be unfair if the hearing was not postponed, and that he might withdraw his representation as he did not want to be questioned by the Migration Agent’s Registration Authority for malpractice: CB 147.
On 13 March 2015 a Tribunal Officer rang the Migration Agent and spoke to him for a second time (after the discussion referred to at [38] above) and advised as follows:
As advised by the Member I called the representative and told that the hearing will go ahead. He has had ample opportunity to contact the applicant and seek his instructions. The Member will discuss the applicant’s claims in full at the hearing and afford him time to make submissions afterwards. The Member is not prepared to postpone the case until the department had granted him access to documents. The rep said he will contact the applicant and discuss with him. He said he might withdraw his representation and will advise the tribunal.
The applicant was able to discuss claims that he made with the Tribunal at the Tribunal Hearing: CB 174-175 at [33], [35], and [37]-[38].
The Minister concedes that he breached the requirements of s.494D of the Migration Act by failing to notify the Migration Agent of the Delegate’s Decision to refuse to grant the applicant a Protection Visa in the manner required by s.66 of the Migration Act.
Section 66(1) and (2) of the Migration Act relevantly states:
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
Notably, s.66(2) of the Migration Act requires the Minister to provide reasons for the Delegate’s Decision, not merely, the Delegate’s Decision itself.
Regulation 2.16 of Migration Regulations 1994 (Cth) states that:
For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.
Refusal to grant visa
The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
As the applicant had an authorised recipient, s.494D of the Migration Act applies and relevantly states:
(1) If a person (the first person ) gives the Minister written notice of the name and address of another person (the authorised recipient ) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
In Lee v Minister for Immigration & Citizenship [2007] FCAFC 62; (2007) 94 ALD 559 (“Lee”) it was held that once the applicant had an authorised recipient it was mandatory for the Tribunal to give documents to that recipient in accordance with s.494D (in Lee the Court was considering the analogue provision s.379G(1) of the Migration Act). The same was held in Le v Minister for Immigration [2007] FCAFC 20; (2007) 157 FCR 321 (“Le”) at [5] per Emmett, Allsop and Middleton JJ: see also Pathania v Minister for Immigration & Border Protection [2015] FCA 1262; (2015) 240 FCR 254 at [18] per Gilmour J. It is important to note that whilst nothing prevents the Tribunal providing a copy of a document to the applicant: Migration Act, s.494D(2), doing so means the “document” has not been provided to the authorised recipient: SZFOH v Minister for Immigration & Citizenship [2007] FCAFC 63; (2007) 159 FCR 199; (2007) 241 ALR 653; (2007) 95 ALD 540 (“SZFOH”) at [45] per Besanko J.
In Lee at [38], Besanko J commented, but did not determine, that it was doubtful that evidencing actual service on an applicant would mean that the failure to notify in accordance with s.494D of the Migration Act does not give rise to jurisdictional error (the nature of any error established by a breach of s.494D of the Migration Act is discussed below). In Le and SZFOH that question was left open: Le at [31] per Emmett, Allsop and Middleton JJ; SZFOH at [26] per Besanko J.
The applicant was provided a copy of the Delegate’s Decision: see [32] above, but it does not follow that actual service means that breaches of s.494D of the Migration Act, are moot for the purposes of establishing jurisdictional error: Lee at [38] per Besanko J. To allow that situation would mean that neither the Minister nor Tribunal would ever need to adhere to s.494D of the Migration Act and therefore the section would be nugatory and entirely meaningless. Meaninglessness is absurdity; and the law should not be absurd: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297.
The failure to comply with s.494D of the Migration Act is in of itself not capable of establishing jurisdictional error; the breach must be attached to a provision concerning the procedural fairness requirements of a Tribunal hearing. In Lee, Le and SZFOH the breach of s.494D (or s.379G) of the Migration Act constituted judicial error by rendering the invitation sent pursuant to s.425 invalid, and therefore the Tribunal in those cases had failed to invite the applicants in those cases to the hearing.
In this case the breach of s.494D relates to a failure to notify the applicant of the Delegate’s Decision pursuant to s.66 of the Migration Act (“Section 66 Breach”). This ordinarily has implications for the way in which the time limit for applicants to apply to the Tribunal, and therefore whether the Tribunal has jurisdiction, is calculated. There can be no jurisdictional error by the Tribunal with respect to the failure to notify the applicant because s.66 of the Migration Act is the Minister’s duty not the Tribunal’s. Section 66’s function precedes any involvement by the Tribunal. However, this does not render the issue irrelevant to the Judicial Review Application. The FOI and Adjournment Applications were both products of the Section 66 Breach.
In these circumstances, no jurisdictional error in the Tribunal Decision results per se from the Department's non-compliance with s.494D(1) of the Migration Act. But that does not preclude the failure to provide the Delegate’s Decision from being a factor which might vitiate the Tribunal Decision by reason of unreasonableness giving rise to jurisdictional error.
To the extent that the applicant claims that unreasonableness or a lack of procedural fairness arose due to his Migration Agent not being aware of his protection claims, the Court notes that:
a)the Migration Agent was acting for the applicant in relation to his Protection Visa application from 12 January 2015: CB 59-62;
b)the applicant provided the Department with a statutory declaration dated 27 January 2015 elaborating on his protection claims: CB 64-65;
c)the applicant's evidence to the Tribunal was that he had spoken with the Migration Agent before and after his interview with the Delegate on 16 January 2015, and before and after he was transferred from Villawood IDF to Yongah Hill IDC in early March 2015: CB 172 at [25]; and
d)the Tribunal did not refuse to allow the Migration Agent to appear before it at the 16 March 2015 hearing, and encouraged the Migration Agent to appear to discuss any issues regarding the review.
It is arguable that any unfairness to the applicant arising from the Migration Agent not being aware of the applicant’s protection claims appears to have resulted from the Migration Agent's inaction. It is unclear how, despite claiming to have not received the Delegate’s Decision, the Migration Agent was able to notify the applicant between 5 and 11 February 2015 that his Protection Visa application had been refused: CB 95. It is similarly unclear why the Migration Agent did not take steps to obtain a copy of the Delegate’s Decision (which had been handed to the applicant on 11 February 2016) from the applicant, or why the Migration Agent was unable to discuss the applicant's claims with the applicant prior to the 16 March 2015 hearing. Mere negligence or incompetence by a migration agent is insufficient to support jurisdictional error in the Tribunal Decision: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Mallik v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1134 at [23] per Judge Lucev.
The Migration Agent's decision to withdraw from the proceedings (and any consequential disadvantage to the applicant) also appears to have been based on the Migration Agent's concerns regarding potential malpractice: CB 147, and cannot be attributed to the Tribunal.
The applicant submits that fairness required the Tribunal to adjourn the Tribunal Hearing to await the outcome of the applicant's FOI request: Applicant’s Written Submissions at [30]-[33].
Depending upon the particular circumstances, the failure by the Tribunal to refuse to grant an adjournment sought by an applicant may result in a finding of jurisdictional error if in all the circumstances the refusal of an adjournment is unreasonable: Li at [28] per French CJ (“Li”).
The Tribunal set out the history of the applicant's requests, made via the Migration Agent, for adjournment of the Tribunal Hearing: CB 171-172 from [14]-[22]. The Tribunal explained its reasons for not granting a further adjournment on 16 March 2015: CB 172 at [23]-[25], including:
a)that it had already adjourned the proceedings at the applicant's request;
b)its view that the Migration Agent had been given “ample opportunity” to contact the applicant and obtain instructions;
c)its unwillingness to postpone the hearing for a further month, while the applicant remained in detention, to await the Migration Agent's assessment of the Department's documents; and
d)its repeated advice to the Migration Agent that concerns could be raised at the Tribunal Hearing and further time could be granted after the Tribunal Hearing for the Migration Agent to provide submissions and further information: CB 172 at [24].
The Minister submits that no jurisdictional error arises in relation to the failure of the Tribunal to adjourn until the FIO request had been fulfilled because:
a)the substantive documents in the applicant's Protection Visa file were provided by the applicant to the Department, save for the Delegate’s Decision, a copy of which was provided to the applicant by the Department: CB 95. The Tribunal was not obliged to provide the applicant with information that the applicant gave during the process that led to the Delegate’s Decision: s.424A(3)(ba) of the Migration Act;
b)in the circumstances, no breach of procedural fairness arises due to the applicant's FOI request remaining outstanding at the time of the Tribunal Decision. Further, as the applicant's protection claims were matters within the applicant's own knowledge, no practical unfairness to the applicant appears to have arisen on this basis; and
c)the Tribunal indicated to the Migration Agent that it was willing to discuss any issues regarding the application for review at the Tribunal Hearing, and to receive post-hearing submissions: CB 147 and 158. The Migration Agent did not attend the Tribunal Hearing and, despite the Migration Agent indicating that he would discuss matters with the applicant: CB 158, the applicant does not appear to have raised the status of the FOI request at the Tribunal Hearing, or elaborated on the request for an adjournment made by the Migration Agent.
In Li, Hayne, Kiefel and Bell JJ stated at [78] and [79]:
The Minister submits that the Tribunal may have considered that it had little by way of discretion left to apply, because all of the steps necessary to the conduct of the review had been taken and procedural fairness was provided for in the taking of each step. That submission implies that, so long as the express requirements of Div 5 are complied with and, relevantly, an invitation has been extended to an applicant for review by the Tribunal to attend a hearing and that hearing has been held, nothing further can be required of the Tribunal.
The submission misapprehends the nature and purpose of the discretionary power to adjourn and the requirement of reasonableness which attaches to it. The discussion of the forthcoming second skills assessment during the hearing on 18 December 2009, and the subsequent request for an adjournment of the Tribunal's review while TRA reviewed the second skills assessment, must have conveyed to the Tribunal that Ms Li did not consider that she had presented her case. In deciding whether to adjourn, that was what the Tribunal had to consider in the context of the statutory purpose of s 360, but it does not appear that it did so. [emphasis added]
Again in Li, French CJ stated at [31]:
The decision of the MRT to proceed to its determination was not, on the face of it, informed by any consideration other than the asserted sufficiency of the opportunities provided to the first respondent to put her case. The MRT did not in terms or by implication accept or reject the substance of the reasons for a deferment put to it by the first respondent's migration Agent. It did not suggest that the first respondent's request for a deferment was due to any fault on her part or on the part of her migration Agent. It did not suggest that its decision was based on any balancing of the legislative objectives set out in s 353. Its decision was fatal to the first respondent's application. There was in the circumstances, including the already long history of the matter, an arbitrariness about the decision, which rendered it unreasonable in the limiting sense explained above. [emphasis added]
The relevant principles in relation to legal unreasonableness as explained by the High Court in Li and subsequently by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh”) were summarised by the Federal Court in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45 ]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Pandey at [41] per Wigney J.
As in Li, the Tribunal has only considered the sufficiency of opportunity provided to the applicant to put his case and not the purpose of s.425 of the Migration Act. The Tribunal identified the basis for the adjournment as being related to the Section 66 Breach: CB 172 at [24], however, concludes that because the Migration Agent would understand the applicant’s claims and had sufficient time to take instructions there was no need for an adjournment. The fact that the Migration Agent had not been given the Delegate’s Decision as required by the statute was a factor as to whether the applicant could meaningfully participate in the hearing as required by s.425 of the Migration Act. The purpose of the hearing pursuant to s.425 is fundamentally related to the Delegate’s Decision, which generally demarcates the issues before the Tribunal: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 at [36]-[40] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. This is not to suggest that the Tribunal Hearing is not de novo, but rather that issues in the Delegate’s Decision are taken to be issues before the Tribunal: Minister for Immigration & Citizenship vSZMOK [2009] FCAFC 83; (2009) 257 ALR 427; (2009) 110 ALD 15 at [62] per Emmett, Kenny and Jacobson JJ. The Tribunal’s conclusion with respect to the adequacy of opportunity for the Migration Agent to have taken further instructions failed to consider that the applicant’s Migration Agent had not been given the Delegate’s Decision as required by the Migration Act and did not consider what difficulty that may or may not have had for the applicant and Migration Agent to present an argument and be heard by the Tribunal pursuant to s.425 of the Migration Act. And whilst the applicant was personally given the Delegate’s Decision on 11 February 2016 there is no evidence that the Migration Agent and applicant had any discussion regarding the Delegate’s Decision. The Court accepts that the Tribunal was not required to provide the Delegate’s Decision pursuant to s.424A of the Migration Act, but that must be considered in light of the fact the provision of reasons for the Delegate’s Decision to the applicant is a mandatory requirement. The failure to provide the Delegate’s Decision as required by ss.66 and 494D of the Migration Act is but one factor in relation to the applicant’s application for adjournment before the Tribunal. Were it the only basis for alleging a denial of procedural fairness or unreasonableness by the Tribunal then the Court would not be prepared to consider that it alone constituted jurisdictional error by way of a denial of procedural fairness or unreasonableness, particularly in circumstances where there is some evidence that the applicant was aware, and that the Migration Agent ought therefore to have been aware, of the existence of the Delegate’s Decision, and therefore the reasons within.
A more powerful consideration in relation to the alleged denial of procedural fairness or unreasonableness is the refusal to adjourn the Tribunal Hearing pending receipt of the documents pursuant to the FOI request. The FOI request encompassed not only the Departmental file, but extended to other documents held by the Department (if any) relevant to the applicant’s Protection Visa application. The Tribunal has premised its refusal of the adjournment in large part upon the fact that the Migration Agent had had ample opportunity to contact the applicant and obtain further instructions. That merely begs the question: instructions about what? One is not able to obtain instructions in relation to documents, and if issues arise from those documents, those issues, if one does not have the documents. Thus, the Minister’s failure to provide the documents under the FOI request compounds the Minister’s failure to provide the Delegate’s Decision under ss.66 and 494D of the Migration Act. Because the Migration Agent would not be able to obtain instructions in relation to documents that the Migration Agent did not have, it also follows that the Migration Agent would not be able to prepare submissions having regard to those documents. To deny the opportunity (for the sake of a further seven or 14 days) to the Migration Agent to look at the documents which the Minister had not produced pursuant to the FOI request is plainly to put the Migration Agent (and hence the applicant) at a disadvantage in the preparation of submission, and thus the presentation of the applicant’s case. It is not to the point that the Tribunal then might have allowed further submissions to be made. In the circumstances of this case, that merely highlights the disadvantage under which the Migration Agent and applicant would be operating, particularly where they had already made submissions in relation to issues, and in relation to which submissions might have to be withdrawn or amended, and which might possibly be inconsistent with earlier submissions put without the benefit of the FOI request documents. Any inconsistency might then have been fastened upon by the Tribunal, as is often the case, to make adverse comment upon the applicant’s credibility. That makes manifest the disadvantage suffered by the applicant and the Migration Agent in having to put submissions in advance of the FOI request documents.
The Tribunal Decision was then made prior to the applicant receiving the FOI request documents. In its communications with the Migration Agent prior to the Tribunal Hearing a Tribunal officer had plainly indicated to the Migration Agent, acting on behalf of the applicant, that further submissions would be able to be put to the Tribunal on behalf of the applicant after the Tribunal Hearing. Those representations were seemingly made at least twice on 13 March 2015. It matters not that the Migration Agent did not attend the Tribunal Hearing. There is nothing to indicate that the Tribunal indicated to the applicant at the Tribunal Hearing that the capacity to make post-Tribunal Hearing submissions in relation to the FOI request documents was withdrawn. Those FOI request documents were due to be produced by the Minister on 23 March 2015, just seven days after the Tribunal Hearing. But on 18 March 2015 the Tribunal Decision was published. The publication of the Tribunal Decision just two days after the Tribunal Hearing, and five days in advance of the receipt of the FOI request documents, in circumstances where it had been indicated to the applicant’s authorised representative that post-Tribunal Hearing submissions could be made following receipt of the FOI request documents, and in circumstances where there is no indication that that offer was withdrawn, was unreasonable in a legal sense. The unreasonableness of the almost immediate publication of the Tribunal Decision, compounded the unreasonableness of the failure to adjourn to allow the applicant to consider the FOI request documents.
It also needs to be borne in mind that the applicant had an authorised representative in the Migration Agent. Migration Agents are required to have certain qualifications and to be registered: Migration Act, s.289A. A professionally qualified and registered Migration Agent (here the Migration Agent was a solicitor) might, upon examination of the FOI request documents, have perceived issues which might not have occurred to a self-represented litigant for whom English is not his first language, and who suffered the disadvantage of being in detention (and having been transferred from New South Wales to Western Australia) whilst endeavouring to instruct his Migration Agent. The proper role of the Migration Agent in circumstances such as these is not a matter which the Tribunal appears to have weighed in determining whether or not to grant the adjournment sought which would have delayed the matter for about a fortnight. It is not apparent that there was any reason for this matter to be treated with a degree of urgency. The Court well appreciates that this is an area in which there is a high volume case load, which imposes significant pressures on the Tribunal. Those pressures do not however warrant the unreasonable refusal of an adjournment, particularly for such a relatively short period.
In refusing the applicant’s adjournment application the Tribunal also seemed concerned with delaying the hearing because the applicant was in detention. In BVZ15 v Minister for Immigration & Border Protection [2016] FCCA 343 (“BVZ15”) at [100] per Judge Jones, the Court found in a similar situation where an adjournment was sought on the basis that the migration agent for the applicant there did not have the delegate’s decision that the Tribunal’s focus on delay was misguided, particularly where the adjournment sought was relatively short, and that the correct focus was whether the applicant would be able to meaningfully participate in the hearing.
In this case the Tribunal predicated its decision on the basis that the delay weighed against allowing the Migration Agent to be given the Delegate Decision and the FOI request documents. The application was filed on 11 February 2015 and the Tribunal Hearing was listed little over a month later on 16 March 2015. The adjournment request made on 12 March 2015 by the Migration Agent was for three weeks, meaning that in effect the Tribunal Hearing would only be adjourned for about a fortnight. This would have meant that the applicant’s matter before the Tribunal would have still only been on foot for less than two months. This is not a lengthy period of time. By way of comparison, in BVZ15 the Court characterised a four month period between application and Tribunal hearing as “not lengthy”. In BVZ15 at [100]-[101] per Judge Jones the Court held that the focus on delay had ignored the primary issue that the applicant had not read the delegate’s decision, and that refusing the adjournment had not been in the interests of the applicant. In this case the consideration of delay failed to recognise the fundamental basis for the adjournment which was that the Migration Agent had not been given the Delegate’s Decision as was mandated by the Migration Act, and, in particular the FOI request documents.
Ultimately, the Tribunal’s decision to adjourn failed to recognise that it was in applicant’s interest to be given the benefit of having the Migration Agent:
a)as statutorily required, getting a copy of the Delegate’s Decision and providing advice accordingly;
b)being able to consider the FOI request documents in order to be able to provide advice to the applicant, and make appropriate submissions to the Tribunal on the applicant’s behalf,
so that the applicant’s case could be properly put to the Tribunal, thereby complying with the purpose of s.425 of the Migration Act. Furthermore, there was no apparent reason for urgency, and an adjournment for a relatively short period of a fortnight, would not have adversely affected the applicant’s interests.
In all of the above circumstances the Court is persuaded that the refusal to adjourn the Tribunal Hearing was unreasonable in the sense referred to by the High Court in Li and the Federal Court in Pandey. In the circumstances jurisdictional error is established on the basis of unreasonableness by the Tribunal in refusing to adjourn the Tribunal Hearing.
Tribunal's decision to conduct the hearing by video-link
The applicant raises an issue related to ground 3 regarding the Tribunal conducting the hearing by video-link: Applicant’s Written Submissions at [14].
Section 425 of the Migration Act requires the Tribunal to invite an applicant to “appear before the Tribunal to give evidence and present arguments arising in relation to the decision under review”. Further, s.429A of the Migration Act empowers the Tribunal to allow an applicant to appear by closed-circuit television, or “any other means of communication”.
These provisions do not require that an applicant be given an opportunity to appear before the Tribunal “in person”, but rather give the Tribunal a discretion to allow an applicant's appearance by means which include a video conference arrangement: SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 at [22]-[27] per Reeves J (“SZJTK”).
The applicant requested to attend the Tribunal Hearing in person: CB 143. The evidence suggests that when informed by the Tribunal that arrangements had been made for a video-link hearing, the applicant accepted this arrangement: CB 144. There is no evidence that the applicant expressed opposition to appearing by videolink. Further, notwithstanding the Applicant’s Written Submissions that delays caused by the video-link caused awkwardness and frustration: Applicant's Written Submissions at [18], there is no evidence that any actual unfairness to the applicant arose as a result of the Tribunal Hearing proceeding by video-link.
In the above circumstances no jurisdictional error arises from the Tribunal Hearing being conducted by video-link.
Grounds 4 and 5
Grounds 4 and 5 are as follows:
4. The Tribunal fail to exercise jurisdiction
5. The Tribunal fail to ask relevant questions prescribed by law and it's decision was make beyond power
Grounds 4 and 5 are bare allegations of jurisdictional error. Absent particulars, these grounds cannot succeed and do not establish jurisdictional error: WZATH at [60] per Judge Lucev.
Ground 6
Ground 6 is as follows:
6. The Tribunal misapplied the test whether there was a real risk of significant harm or degrading treatment to the Applicant upon returning to his own country.
Relevant to ground 6 the Applicant’s Written Submissions provide that:
51. The Tribunal also misapplied the test when wrongly submitted that:
37 ...... However; the Tribunal does not accept that upon returning to Malaysia he would be classified as homeless and destitute ...... Having regard to the applicant's level of education, work history and assets, albeit modest ...... he would be able to find accommodation and appropriate employment in Malaysia ....
52. As put to the Tribunal in the hearing the the effects of cultural differences and differences in the way of life. By 'differences in the way of life' means in this term is without any support of any legal testimonial and without any connections from any families or friends in Malaysia, it will be extremely hard to find approp1iate employment that can acquire a reasonable basic living expenses.
53. Without an appropriate income, finding an adequate accommodation is out of the question as most of the homeless in Malaysia are with jobs that suffer from economic hardship and have to rely on Non Government Organisation for food.
54. Economic hardship under law and legal definition is defined as “the inability to meet reasonable basic living expenses.”
55. The Star online Homeless in KL [July 2010] reported that:
There are many homeless people in Kuala Lumpur, including those who have jobs but do not earn enough to rent a room or house. They sleep on the streets of popular areas in the city.
When nightfalls, scores of homeless people take over parks and five-foot ways, turning areas in Kuala Lumpur into their home for the night.
These homeless in the capital city are not all beggars or vagabonds. In fact, many of them hold jobs during the day.
However, they do not make enough to pay for houses or rooms and find it easier to make ends meet by sleeping on the streets.
56. Definition under Destitute Persons Act (“DPA”) 1977, a destitute person means:
(a) .....
(b) any idle person found in a public place, whether or not he is begging, who has no visible means of subsistence or place of residence or is unable to give a satisfactory account of himself;
57. It is a legal threat to any person is found to be homeless and is not begging would fall under category (b) of the DPA. This inherently violates Articles 5, 8 and 9 of the Federal Constitution, which guarantee personal liberty, equal protection and freedom of movement.
58. Malaymail online “Repel harmful Destitute Persons Act 1977” (June 2014) stated:
.... the law provide government officers with the power to take into custody, detain (up to three years) and otherwise intervene in the lives of any Malaysian deemed to be “destitute”. Persons detained are kepi against their will in facilities run by the Ministry of Women, Family and Community Development (MWFCD).
. ..... the law defines “resistance”, including escape from detention, as an offence punishable by imprisonment. In other words, treatment more closely resembles policing than social welfare.
People who are homeless face multitude of troubles such as illness, injury, job exploitation, debt and discrimination, yet practices link to the DPA only add further strain to their lives by depriving them of possessions, personal dignity and wellbeing and constitutional rights and freedom.
59. As then opposition immigration spokesman Scott Morrison [Sep 2011] described:
“another policy failure by an incompetent government”
60. Homelessness Australia uses the Australia Bureau of Statistic (ABS) statistical definition of homelessness.
61. The ABS statistical definition states that when a person does not have suitable accommodation alternatives they are considered homeless if their current living arrangement:
(a) is in a dwelling that is inadequate; or
(b) has no tenure, or if their initial tenure is short and not extendable; or
(c) does not allow them to have control of, and access to space for social relations
62. The ABS definition of homelessness is informed by an understanding of homelessness as 'home'lessness, not 'roof’lessness. It emphasises the core elements of 'home' in Anglo American and European interpretations of the meaning of home as identified in research evidence (Mallett, 2004). These elements may include: a sense of security, stability, privacy, safety, and the ability to control living space. Homelessness is therefore a lack o f one or more of the elements that represent 'home'.
63. The definition has been constructed from a conceptual framework centred around the following elements:
(a) Adequacy of the dwe1ling;
(b) Security of tenure in the dwelling; and
(c) control of, and access to space for social relations.
64. The United Nations (UN) identifies homeless people under two broad groups:
(a) Primary homelessness (or rooflessness). This category includes persons living in the streets without a shelter that would fall within the scope of living quarters;
(b) Secondary homelessness. This category may include persons with no place of usual residence who move frequently between various types of accommodations (including dwellings, shelters and institutions for the homeless or other living quarters). This category includes persons living in private dwellings but reporting 'no usual address' on their census form.
65. Not only did DPA pose a threat to any person found “destitute” or homelessness as defined by ABS and the UN, its violates the person rights that guarantee by the Federal Constitution.
66. Thus, as enacted in the Act s 5J(5)(a) “a threat to the person's life or liberty”, this harmful law is a threat to any person found to be “destitute”
(Transcribed from the Applicant’s Written Submissions without amendment).
The Tribunal correctly stated the law with regards to complimentary protection. The Applicant’s Written Submissions are simply a disagreement with the merits of the Tribunal Decision, and the weight and choice of country information, neither of which are issues that this Court can deal with: Wu Shan Liang and NAHI. No jurisdictional error in the Tribunal Decision is established by ground 6.
Failure to inquire
The Minister submits that the Applicant's Written Submissions at [20] suggest that the Tribunal erred by failing to “inquire further regarding my claimed when applying the test”.
A failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, may, in some circumstances, constitute a failure by the Tribunal to conduct a review, and therefore constitutes jurisdictional error: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 at [25] per Heydon J. However, there is nothing to indicate that the Tribunal so failed in the present case, and no jurisdictional error in the Tribunal Decision is established on this basis.
Whether the Court should refuse to grant relief despite jurisdictional error?
The Minister’s submissions argue that there has been no practical unfairness to the applicant, and the Court should exercise its discretion to refuse constitutional relief even if jurisdictional error was established. In light of the Court’s findings with respect to the issue of unreasonableness set out at [62]-[69] above this submission is not made out, and the Court will not refuse to grant relief to the applicant.
Conclusions and orders
The Court has concluded that the Tribunal Decision is affected by jurisdictional error insofar as it was unreasonable to refuse the applicant’s application for an adjournment of the Tribunal Hearing on 16 March 2015. There will be appropriate orders for prerogative relief to quash the Tribunal Decision and remit the matter to the Tribunal for a further hearing according to law.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 5 September 2017
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