ASJ22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 476
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 476
File number: PEG 48 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 13 June 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal complied with the requirements set out in s 423A of the Migration Act 1958 (Cth) – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth), ss 5AAA, 36, 65, 423A & 476
Migration Amendment (Protection and Other Measures) Act 2015 (Cth)
Cases cited: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
DWP17 v Minister for Immigration and Border Protection [2019] FCA 160
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Singh v Minister for Home Affairs [2019] FCAFC 3
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 13 March 2023 Place: Perth Applicants: First and second applicants appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 48 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASJ22
First Applicant
ASK22
Second Applicant
ASL22
Third Applicant
ASM22
Fourth Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
13 JUNE 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent made orally on 17 February 2022 (and reduced to a written statement of reasons on 28 April 2022).
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicants’ application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicants are a Chinese family consisting of a father (the “first applicant”), a mother (the “second applicant”) and their two minor children (the “third and fourth applicants”) (collectively, the “applicants”).
The first applicant arrived in Australia in June 2007 as the holder of a Schools Sector (Class TU) (Subclass 571) visa (CB 131). The second applicant arrived in Australia in December 2007 as the holder of her own Schools Sector (Class TU) (Subclass 571) visa (CB 44 & 131).
On 13 July 2007, the first applicant was granted a Vocational Education and Training Sector (Class TU) (Subclass 572) visa with limited work rights (CB 131).
On 16 January 2008, the second applicant was granted her own Vocational Education and Training Sector (Class TU) (Subclass 572) visa, also with limited work rights (CB 131).
In August 2009, the first and second applicants entered into a de facto relationship in Sydney (CB 19 & 40).
On 15 March 2010, both the first and second applicants’ visas ceased and they became unlawful non-citizens (CB 131).
The third and fourth applicants were both born in Australia and are minors (CB 58-59, 79-80 & 131).
On 8 December 2017, the first applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) with the assistance of a registered migration agent (the “representative”). The second, third and fourth applicants were included in that visa application as members of the first applicant’s family unit (CB 1-99).
As summarised by a delegate for the Minister, the first applicant’s claims for protection in his visa application were as follows (CB 136-137):
(a)under the central Communist Party, his family was assigned a block of land to cultivate by the State and they were issued with a “certificate of the right to use [that] land”;
(b)in 2006, the first applicant’s father received a letter from the County Government Office requesting return of the block of land to allow a private property development company to construct residential dwellings on the block and adjoining land;
(c)the compensation offered by the County Government was very low and the first applicant’s father rejected the proposal as it was the family’s only means of livelihood, without which they would face disaster;
(d)as his father was suffering from ill health and was bed-ridden due to malnutrition, the first applicant, as the only son, had no choice but to take up the task of fighting against the land acquisition;
(e)between October and December 2006, the first applicant met with the County Chief, [name omitted], who was overseeing the project to express his family’s concerns and demand more reasonable compensation;
(f)[the County Chief] was initially cooperative but became impatient and grumpy when his improved offer was not accepted;
(g)the first applicant became upset after [the County Chief] refused to see him anymore and organised a demonstration outside [his] office in January 2007 to protest. The first applicant and other villagers paraded on the street and held up slogans. They were arrested by the local police and taken to the station where the first applicant was blindfolded and his hands were tied. He was blamed for holding up the project and was beaten in his upper back and leg with a bamboo pole;
(h)the first applicant was arrested and held for 10 days at the police station, where he was held in solitary confinement with no charge;
(i)after the first applicant returned home, his family were concerned for his safety, so his father suggested that he move to [another city] in mid-January, where he stayed with a cousin;
(j)the first applicant was unable to get a job or enrol in schools in [that city] because he did not hold the proper relocation papers, so he returned to live with his family in early February 2007;
(k)whilst the first applicant was away in [that other city], the County Government sent people to his family house on a regular basis to harass them to accept their offer for the land. His father was worried that the first applicant would be harmed and suggested it would be safer for him to study abroad, so he applied for a Student visa to allow him to come to Australia in late February 2007;
(l)the first applicant was summoned by [the County Chief] to meet him about the acquisition of the family’s block of land. Initially, the first applicant refused to attend but in late March he went to [the County Chief]’s office. An argument started and [the County Chief] slapped the first applicant across the face. The first applicant retaliated by pushing [the County Chief], causing him to fall back and hit his forehead on a desk;
(m)the first applicant was arrested for harming [the County Chief] and put in a cell for one month during which time he was beaten twice by police officers and denied visits from family members and friends;
(n)the first applicant kept a low profile after he was released until his student visa was granted. His father bribed people at border control to secure the first applicant’s safe departure from China, which he managed to do without incident; and
(o)the first applicant cannot relocate to another area to avoid harm because he would need proper relocation papers from the local authority. Without these he would not be able to work, go to school or find accommodation.
On 16 October 2018, the first applicant attended an interview with a delegate of the first respondent (the “Minister”) (CB 122-123). At that interview, the first applicant raised new protection claims, summarised by the delegate as follows (CB 137):
•He would face housing difficulties if he returned to China because if he built a house without approval, the authorities could come along and knock it down.
•His second child has been diagnosed with a low functioning thyroid for which he takes medicine. If he returns to China, his son's medication may be disrupted or he may be prescribed the wrong medication which may cause him injury.
The second, third and fourth applicants, whilst included in the visa application, made no protection claims of their own. Nor were any claims raised by them (or on their behalf) before the delegate (CB 137).
On 26 October 2018, the delegate refused to grant the applicants the visas pursuant to s 65 of the Migration Act 1958 (Cth) (the “Act”) (CB 130-146).
On 11 November 2018, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 147-149). They were assisted with that application by their representative.
On 17 May 2021, the applicants’ representative provided the Tribunal with written submissions (CB 249-257) and country information (CB 173-248) in support of the applicants’ review application.
On 21 May 2021, the applicants attended a hearing before the Tribunal with the assistance of an interpreter and their representative (CB 258-261). That hearing was adjourned.
On 6 September 2021, the applicants’ representative provided further submissions and a land certificate to the Tribunal (CB 280-283).
On 13 September 2021, the first and second applicants attended a second hearing before a differently constituted Tribunal (CB 285-288).
On 17 February 2022, applicants attended a third and final hearing. At that hearing, the first and second applicants gave oral evidence to the Tribunal (CB 320-323). As discussed in detail below, at that final hearing, the first applicant advised the Tribunal that he “had evidence of corruption in local government in China.” The Tribunal queried why the first applicant “had left it so long to raise [that] particular integer of claim” and, having concluded that the first applicant’s “response about his late raising of [that] material was not satisfactory”, determined that the “integer of his claims [was a] late invention and not genuinely held” by the first applicant (CB 341 at [34]).
The Tribunal orally affirmed the delegate’s decision on 17 February 2022 (CB 327) and, on 28 April 2022, produced written reasons for its decision (CB 335-342).
By application filed in this Court on 21 March 2022, the applicants seek judicial review of the Tribunal’s decision.
That application is brought pursuant to s 476 of the Act. To obtain relief from this Court, the applicants must demonstrate that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S DECISION
When determining whether the Tribunal has fallen into jurisdictional error, it is useful to set out the Tribunal’s decision in some detail. This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly important where (as is the case here) the applicants appeared before the Court without legal representation and had difficulty articulating their concerns. In these circumstances the Court will, in its duty to the self-represented litigants, remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
Here, the Tribunal’s decision is eight pages in length and spans 42 paragraphs.
The Tribunal began by detailing the applicants’ migration history, the scope of the delegate’s decision and the applicants’ citizenship status (at [6]-[8]) & [10]-[12]).
The Tribunal then outlined the Tribunal’s approach to credibility findings generally, highlighting, relevantly, as follows:
15.…s.423A of the Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made in relevant circumstances.
16.In such cases if the Tribunal is satisfied that an applicant does not have a reasonable explanation as to why a claim was not raised, or evidence not presented before the primary decision-maker, the Tribunal is required to draw an adverse inference unfavourable to the credibility of the claim or evidence. It is clear then, that applicants are required to present claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.
The Tribunal then explained that, when making such an assessment, it had had regard to Migration and Refugee Division ‘Guidelines on the assessment of credibility’ (July 2015), noting, in particular, [13] of the Guidelines, which provides (at [18]):
In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the Tribunal are satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence. This refers to the requirements of section 423A of the Act.
The Tribunal then detailed the scope of the country information before it (at [22]) and outlined the first applicant’s protection claims (at [23]).
The Tribunal then explained its credibility concerns in relation to the evidence provided by the first and second applicants, as follows:
(a)the Tribunal noted that the first applicant’s family had sold a large portion of the land in question to the local authorities for an acceptable price in 2009 (at [24]);
(b)the Tribunal explained that, at the hearing in September 2021, it had highlighted its concerns that there did not appear to be an ongoing dispute between any of the relevant parties in China (noting that the first applicant’s father had sold a large portion of the land to the relevant people, and that his mother, father, sister and his sister’s family all live peacefully in the region of concern) (at [25]);
(c)the Tribunal noted that the first applicant had renewed his Chinese passport in 2015. This, the Tribunal advised the first applicant, suggested that there had been no outstanding issue between him and the Chinese government at that time (at [26]);
(d)in response, the Tribunal explained, the first applicant suggested that his dispute was with the local authorities and, as such, he had no dispute with the Chinese authorities nationally (at [26]);
(e)the Tribunal also explained that it had concerns with the fact that the first applicant waited to request protection in Australia until 2017 (noting that he had claimed that he had a well-founded fear of harm in China from 2007) (at [26]);
(f)the Tribunal further noted that it had suggested to the first applicant that staying unlawfully in Australia for such a long period of time (and having children and getting married) before eventually seeking protection in Australia was not consistent with what would be reasonable for someone who genuinely feared harm in another country (at [27]);
(g)the Tribunal also advised the first and second applicants that these concerns would need to be discussed at the next hearing and stressed that that the same concerns had been raised by the delegate (at [27]);
(h)the Tribunal explained that, at the hearing on 17 February 2022, the first and second applicants gave consistent evidence about their having met and fallen in love in 2009 and their concern that they pay back debts that had been taken out to pay for their education in Australia. Further, their families in China were in reasonably good health and still lived in the same place that they did when the first and second applicants left China to come to Australia (at [28]);
(i)the Tribunal noted that both the first and second applicants gave the same evidence with respect to the first applicant not telling the second applicant about his fears of harm in China until just before making the application for protection in 2017 (at [28]); and
(j)the Tribunal asked both the first and second applicants why they had taken so long before in seeking protection in Australia. Both applicants, the Tribunal explained, suggested that circumstances of life, with children, and living in a foreign country, had “made it difficult for them to concentrate their minds to the fact that they were unlawful in Australia for seven years” (at [29]).
The Tribunal continued:
30.I accept both applicants are sincere in saying that they were concerned to pay back debts owing back in China when they first arrived in Australia. However, based on their evidence, I find that both Applicant 1 and Applicant 2 came to Australia looking for a different life; that they embarked on that different life together at an early stage, and worked collaboratively in Australia to send money back to China; and, that at all times in their relationship they have wanted to have a family and raise them in Australia.
31.I also find that both Applicant 1 and Applicant 2 were content to live unlawfully in Australia for as long as possible. Nothing in the evidence suggests that either Applicant 1 or Applicant 2 genuinely turned their mind to becoming lawful in Australia for the period of seven years that they were unlawful in this country. Accordingly, I find that the delay in seeking protection for such a long period of time is not reasonable in all the circumstances and reflects poorly on their credibility.
32.With respect to Applicant 1’s claims, I find that his particular delay in seeking protection at the first reasonable opportunity is compounded by the following factors:
•The applicant’s own evidence is that after experiencing what he regarded to be unacceptable persecution and harassment in [his home town] in January 2007, he moved away for a period of a month, and then returned. His reason for returning was that he was unable to obtain work in another city. By his own evidence he was only away for a period of weeks. This evidence is more consistent with a visit to regional cousins than it is with a flight from a well-founded fear of persecution. Despite being given several opportunities in the course of the third hearing to fully explain the circumstances of his alleged persecution in China before coming to Australia, the applicant made no mention of his claim to have experienced a second period of incarceration by the local authorities in [his home town] on his return.
•The failure of Applicant 1 to tell his partner of nine years that he had experienced any persecution in China until late 2017 is significant.
33.Taken together with the fact that Applicant 1’s father did in fact sell the land for an appropriate price or an acceptable price, to property developers in 2009, on the basis of the foregoing evidence I find that Applicant 1’s claims are entirely lacking in credibility and are not genuinely subjectively held by him.
The Tribunal then detailed and assessed a further integer of a protection claim raised by the first applicant, as follows:
34.Late in the final hearing, Applicant 1 suggested that he had evidence of corruption in local government in China. I asked Applicant 1 if there was any particular reason why he had left it so long to raise this particular integer of claims. The applicant’s response about his late raising of this material was not satisfactory. Accordingly, I find this integer of his claims to be of late invention and not genuinely held by Applicant 1.
The Tribunal then assessed the claims raised by the third and fourth applicants, noting, relevantly:
(a)that both children have lived their entire young lives in Australia (at [36]);
(b)that the DFAT publication relating to China (22 December 2021) at [3.120], states:
The likelihood of enforcement of penalties for non-compliance, both before and after the new family planning rules varies from place to place. DFAT understands that Fujian, for example, does not enforce its family planning policy strictly and penalties have not been imposed in some years. People who give birth overseas would have their children counted as if they were born in China and the policies of the place they returned to in China would apply; and
(c)the evidence of the first and second applicants relating to their child (the fourth applicant) as having an infant thyroid problem. In this regard, the Tribunal emphasised that the first explained had advised the Tribunal that the child’s health condition had resolved (at [37]).
The Tribunal continued:
37.…There is no reason to expect that the parents would not continue to pursue this treatment regime for their child if returned to China. There is no suggestion that the child or children, as it were, would be the subject of particularised harm on return to China for any reason discussed at the hearings. Having said that, I have considered the best interests of the children with respect to this decision.
38.There is no suggestion by the parents that they wish to be separated from their children and I note that the children have an entitlement to Chinese citizenship. I accept the evidence of both Applicant 1 and Applicant 2 that they speak Mandarin almost exclusively at home and that their children have functional levels of Mandarin language. I note that relocation to China for the family unit would be dislocating for both the children and the parents. However, I also note that both parents have continued to maintain their family connections in China, and there is nothing to suggest that the children would not be able to access social services, such as education on returning to China. Accordingly, any considerations on the relocation of the children with the parents to China, lack the quality of particularisation of harm that would be required to engage Australia’s protection obligations with respect to those children.
The Tribunal ultimately concluded (at [39]) that the applicants did not hold a genuinely well-founded fear of harm for the purposes of the refugee criteria, noting its finding that the claims advanced by the first applicant on behalf of his family lacked credibility. As such, the Tribunal determined, there was no real chance of serious harm to any of the applicants on return to China, now or in the reasonably foreseeable future, from any person for any reason (at [40]).
Finally, the Tribunal explained that it had also considered the alternative criteria at s 36(2)(aa) of the Act and, on the basis of the same considerations, had determined that there were no grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there was a real risk that they would suffer significant harm now or in the reasonably foreseeable future for the purposes of s 36(2)(aa) of the Act (at [41]).
On the basis of the above, the Tribunal affirmed the delegate’s decision (at [42]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 21 March 2022 contains the following “grounds of review” (without alteration):
The second respondent (AAT), under s425 of the Migration Act, 1958, invited me to attend the hearing scheduled on 17-Feb-2022, which both my authorized migration agent and I subsequently participated and presented my arguments and evidence.
However, up to the present (17-March-2022), we only received a notification from the Tribunal, stating AAT affirmed the decision made by the delegate of the Minister without details of its findings (A copy of AAT’s decision record is enclosed to my affidavit). as the result of that, I believe the Tribunal fails to satisfy me that it did take all my evidence and arguments into account and engage the processing reasoning accordingly in making its findings, which is reasonable and bluntly violates the legal principle in the case of Gill v Minister for Immigration and Border Protection.
Furthermore, without having outlined detailed findings, I am convinced that the Tribunal may have failed to appreciate the significance of some of oral responses to the questions it raised in the course of the hearing into its process of reasoning, and as such, it may have not acted in compliance with the legal doctrine in the case of Minister for Immigration v SZRKT.
In addition to the aforementioned facts, I am not sure whether or not the Tribunal engaged s424A of the Migration Act, 1958. If it did, then the second respondent was obligated to explicitly inform me what would be the reason or a part of the reason for affirming the delegate’s decision, and grant me opportunities to respond and address it accordingly.
Last but not the least, from a fair-minded person’s perspective, the fact that the second respondent fails to provide me with its detailed findings, is an overtly infringement of the procedural fairness and in tum, breaches the statutory provision of s422B of the Migration Act.
On 9 May 2022, procedural orders were made by a Registrar of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions.
No further materials were filed by or on behalf of the applicants.
This matter was initially listed for a hearing before this Court on 28 February 2023. The first and second applicants appeared at that hearing (with the assistance of a Mandarin interpreter). Ms Ellis appeared on behalf of the Minister. At that hearing, after discussions with Ms Ellis and the first and second applicants, it was clear that (despite orders being made by the Court requiring a hard copy of the Court Book to be served on the applicants), this had not occurred. The applicants were served with an electronic copy but is was also evident that the electronic copy had not been received by the applicants.
In order to ensure that the applicants were afforded procedural fairness, the Court asked Ms Ellis to serve a hard copy of the Court Book on the applicants and to file a further affidavit of service verifying compliance with the Court’s requirements. The Court made orders to that effect and adjourned the hearing.
When the matter came before the Court again on 13 March 2023, the first and second applicants appeared without legal assistance but with the assistance of an interpreter in the Mandarin and English languages. The first applicant advised that he would speak on behalf of his family. The Court made orders appointing the first applicant the litigation guardian of his children (the third and fourth applicants). Ms Ellis again appeared on behalf of the Minister.
The Court confirmed with the first applicant that the applicants had now received a copy of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 21 March 2022, a Court Book numbering 346 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 24 January 2023 and two affidavits of service of Benjamin Mayne affirmed and filed on 13 February 2023 and 7 March 2023 respectively.
Noting that the applicants were not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 (“BKT17”) that it is appropriate for unrepresented applicants to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the first applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his family’s matter.
As per the principles recently outlined in BKT17, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicants the visas that they seek, even if the Court disagrees with the Tribunal’s ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the first applicant told the Court that he had “written down his concerns in the application” for judicial review filed in this Court. When asked about the fourth applicant being unable to access medical treatment if returned to China, the first applicant further explained that his child has a thyroid problem and “needs to take specific prescription medication to control that condition”.
CONSIDERATION
It appears the applicants’ grounds of review were prepared prior to the applicants receiving a written decision from the Tribunal. Unfortunately, the grounds of review lack particulars and are not entirely clear. Further, despite the Court’s best efforts, the first applicant struggled to explain his concerns with the Tribunal’s decision.
As this Court has emphasised previously, while there is certainly jurisprudence to the effect that “a failure to particularise a ground of review” can warrant the dismissal of an application on that basis alone (WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]; upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969), this Court's preferred approach is to be mindful that, where applicants are unrepresented and may not have adequate knowledge or the ability to prepare for and understand what is required of them, the Court will read any grounds of review as broadly as possible and, further, will remain astute to the possibility of legal error in the Tribunal’s decision: MZAIB.
Having reviewed the Tribunal’s decision in detail, the Court has identified an issue that requires consideration. That issue arises from the Tribunal’s reasoning at [34], wherein the Tribunal details a further integer of claim raised by the first applicant, as follows:
Late in the final hearing, Applicant 1 suggested that he had evidence of corruption in local government in China. I asked Applicant 1 if there was any particular reason why he had left it so long to raise this particular integer of claims. The applicant’s response about his late raising of this material was not satisfactory. Accordingly, I find this integer of his claims to be of late invention and not genuinely held by Applicant 1.
A concern arises here in relation to whether the Tribunal has complied with the requirements set out in s 423A(2) of the Act.
Sections 5AAA and 423A of the Act were introduced by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth). Section 423A of the Act requires the Tribunal to draw an unfavourable inference on credibility in specified circumstances. Section 5AAA of the Act makes it clear that applicants are responsible for specifying all particulars of their claims for protection and for providing sufficient evidence to establish these claims: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [43].
Section 423A(2) of the Act relevantly provides:
423A How Tribunal is to deal with new claims or evidence
(1)This section applies if, in relation to an application for review of a Part 7‑reviewable decision (the primary decision), the applicant:
(a)raises a claim that was not raised before the primary decision was made; or
(b)presents evidence in the application that was not presented before the primary decision was made.
(2)In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The terms of s 423A of the Act are such that the Tribunal is required to draw an unfavourable inference as to the “credibility of the claim or evidence” in circumstances where it is not satisfied that the explanation provided by an applicant as to why he or she did not raise a claim before the delegate is reasonable. Further, there is nothing in the statutory language of s 423A of the Act that suggests that the Tribunal is prevented from drawing an adverse inference about a claim in its entirety.
In this matter, the first applicant raised an “integer of a claim” towards the end of the final Tribunal hearing. The Tribunal attempted to address this at [34] of its written reasons. The question for this Court to determine is: did the Tribunal do enough to satisfy its statutory obligations?
The Tribunal is required to engage with and give proper consideration to claims and evidence put forward by an applicant. This task is often referenced as involving an “active intellectual process”.
The Full Court of the Federal Court explained in Minister for Home Affairs v Buadromo [2018] FCAFC 151 (at [42]-[45]) that a failure to engage with material in a way that amounts to error can be described in a number of different ways (and with different connotations) and that the description of “active intellectual exercise” is merely one appropriate descriptive. What is required, however, is proper analysis (within the applicable statutory setting) of what the Tribunal did contextually – that is, in relation to the particular facts and circumstances of the relevant case.
A detailed consideration of the relevant principles regarding “active intellectual engagement” is provided by Logan J in DWP17 v Minister for Immigration and Border Protection [2019] FCA 160 (“DWP17”) (citing the Full Court of the Federal Court in Singh v Minister for Home Affairs [2019] FCAFC 3 at [30]-[38]), wherein His Honour explains:
15As to principle … Singh v Minister for Home Affairs [2019] FCAFC 3 [contains] is a most helpful summary of pertinent authority:
30.If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.
31. A statute might require a decision-maker to consider a matter by:
(1)expressly stating that the decision-maker must consider the matter; or
(2)necessary implication because the consideration is a mandatory one having regard to the subject matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.
32.Carrascalao concerned the cancellation by the Minister of the visas of Mr Carrascalao and Mr Taulahi under s 501(3) of the Migration Act 1958 (Cth). Mr Carrascalao and Mr Taulahi sought judicial review of those decisions in the Federal Court. The matter was heard, in this Court’s original jurisdiction, by three Justices.
33.The Minister did not contest that he was under a general legal obligation to consider the merits of cases before cancelling visas under s 501(3). The Full Court stated at [46]:
… An express statutory obligation on a decision-maker to consider (or have regard to) something may well provide a “more precisely defined duty”, as Black CJ observed in Tickner v Chapman. In our view, however, the ordinary meaning of the word “consider” in this judicial review context requires the Minister to engage in an “active intellectual process” in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).
34.The principle is directed to the question whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute. If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise. Likewise, a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
35.However, it is important to recognise that the ultimate concern is with the identification of jurisdictional error: the Tribunal not performing the function entrusted to it or not performing it in an authorised way. The Full Court in Carrascalao at [32] cautioned against allowing this ground for judicial review to slide into merits review (emphasis in original):
The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide” into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA’s comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).
36.The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
37.In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1)First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c)a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
Logan J in DWP17 then considered how the Tribunal in the matter before him dealt with the information before it (insofar as it related to the new claims raised by the appellant and s 423A of the Act), emphasising as follows:
20It is, in my view, apparent enough from its reasons that the Tribunal was not satisfied that the appellant had a reasonable explanation about why the arranged marriage claim was not raised earlier. However, there is more to [134] than just that. It is also to be read as a rejection of the evidence which was tendered in support of the appellant’ arranged marriage claim. It is true, as the appellant submitted, that there is not, in terms, to be found at [134] on explicit rejection of the appellant’s brother’s evidence, but the reasons of the Tribunal disclose that the brother’s evidence was not ignored. In particular, [47], cited above, is a faithful summary of a particular part of the evidence given before the Tribunal by the appellant’s brother. Also to be found in the Tribunal’s reasons is another faithful summary of evidence given by the appellant’s brother, on this occasion evidence in relation to the appellant’s claimed conversion to Christianity; see [54] – [56].
21Against this background, all that the Tribunal was doing, in my view, when one has regard to the paragraphs which preceded [134], was rejecting, on the basis of particular country information as to custom raised in the course of the hearing, the notion that the appellant had been kept in the dark about the existence of an arranged marriage: see [129] – [133].
22The Tribunal’s reasons, in my view, evidence very particular, singular and meaningful engagement with the additional claim grounded in the alleged arranged marriage. The Tribunal was entitled to reach the conclusion found at [134]. What follows from the foregoing is that, though stated in rather more detail, I agree with each of the conclusions of the learned primary judge. These in turn reflect the submissions that were made on behalf of the Minister as to why the appeal should be dismissed.
It is clear from the above that in DWP17 the Tribunal summarised the evidence provided by the appellant’s brother, considered relevant country information and ultimately rejected the evidence provided in support of the new claim. On that basis, the Tribunal was not satisfied that the appellant had a reasonable explanation as to why the claim was not raised earlier. For Logan J, this was well and truly enough to satisfy him that the Tribunal’s reasons showed “meaningful engagement with the appellant’s new claim”.
As set out above, s 423A of the Act requires the Tribunal to draw an unfavourable inference about the credibility of a claim or evidence where there was a delay in it being raised. However, in order for the Tribunal to be able to do so, it must be satisfied that an applicant does not have a reasonable explanation for not raising it earlier (that is, why the claim was not raised or the evidence was not presented to the delegate).
In order to be so satisfied, the Tribunal must first show that it followed an active intellectual process when considering an applicant’s new claim and the explanation provided as to the delay.
Having now assessed [34] of the Tribunal’s reasons in this matter (read contextually and in light of the Tribunal’s reasons as a whole), it is clear that (unlike in DWP17) the Tribunal’s analysis does not evidence an active intellectual process in relation to the first applicant’s explanation for waiting to raise the new integer of his claim and whether that explanation was reasonable. The Tribunal’s reasons simply state that “the [first] applicant’s response … was not satisfactory” (at [34]). More is required. The Tribunal does not, for example, summarise the first applicant’s reasons for the delay. Nor does it explain why the Tribunal did not consider any reasons provided to be satisfactory. While the Tribunal may have given proper consideration to the first applicant’s evidence and submissions in that regard, there is, unfortunately, no evidence, on the face of the Tribunal’s decision, to indicate to the Court that it did so. Rather, [34] simply “floats”. It is devoid of context and lacks any reference to the Tribunal’s earlier findings. Overall, the reasoning provided lacks substance and, accordingly, does not meet the requisite jurisprudential standard.
The Court is not satisfied that the Tribunal actively engaged with the first applicant’s evidence in relation to why he “waited so long” to raise the new claim. The Court cannot state unequivocally that the Tribunal reached the requisite level of satisfaction as required by s 423A(2) of the Act.
The Tribunal has failed to complete its statutory task and has fallen into jurisdictional error.
CONCLUSION
For the reasons provided above, the Court has identified jurisdictional error in the decision of the Tribunal made orally on 17 February 2022 (and set out in a written record dated 28 April 2022).
The Tribunal’s decision will, accordingly, be set aside and the matter remitted to the Tribunal for reconsideration.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 13 June 2023
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