AUI15 v Minister for Immigration
[2016] FCCA 1701
•7 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUI15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1701 |
| Catchwords: MIGRATION – Judicial review – protection visa – applicant named as a family member in the application for a protection visa of AUJ15 in proceedings DNG30 of 2015. |
| Legislation: Migration Act 1958 (Cth), ss.424(1), 424(3), 424AA, 425, 426A(1F), 424A, 425, 425A, 426A, 442B Immigration (Guardianship of Children) Act 1946 (Cth), ss.4AAA, 6 |
| Cases cited: Prasad v Minister for Immigration and Ethnic Affairs (1995) 6 FCR 155 Jaffarie v Director General Security [2014] FCAFC 102 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 AUJ15 v Minister for Immigration & Anor [2016] FCCA 1700. |
| Applicant: | AUI15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 76 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 26 April 2016 |
| Date of Last Submission: | 26 April 2016 |
| Delivered at: | Dandenong |
| Delivered on: | 7 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thomas |
| Solicitors for the Applicant: | John Toohey Chambers, Darwin |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | The Australian Government Solicitor |
ORDERS
The applicant is granted leave to proceed with her application filed on 15 December 2015 out of time.
The application filed 15 December 2015 is dismissed.
The applicant to pay the first respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DNG 76 of 2015
| AUI15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These reasons need to be read with the reasons in AUJ15 v Minister for Immigration & Anor [2016] FCCA 1700. The two cases were heard together. AUI15 is the daughter of AUJ15. To avoid confusion they will be referred to as the daughter and the father in both sets of these reasons.
Out of time application
The applicant seeks leave to proceed with her application out of time. The respondent did not oppose this. Her application for judicial review was prepared at the same time as the father’s. Her counsel thought it had been filed with the Court, when in fact it had been rejected because the applicant was under the age of 18 and did not have a case guardian. Mr Thomas did not realise that the application had not been filed until I informed him during the hearing in December 2015 that no paperwork has been lodged on her behalf.
Mr Thomas rectified that promptly once he became aware of it, including filing an affidavit by himself and a further affidavit by a litigation Guardian explaining the circumstances. The late filing of the application was outside of the applicant’s control. I am satisfied that she has a good explanation for the delay.
The prejudice to the respondent that has occurred with respect to the adjournment in this matter and has been linked to the father’s application and the history of the proceedings is outlined in that judgement; I will not repeat them here. The case is now fully prepared. Both parties have filed submissions with respect to the primary issues and are prepared to argue and did argue the merits of her application. In these circumstances and as time was not spent on the out of time issue, for good reason, I propose to grant the applicant leave to proceed out of time to consider the merits of her application.
The applicant’s claims
She was included in her father’s visa application seeking a protection visa. The details are included and part B of the application form which is headed “application for a member of the family unit”.
The father and daughter had the assistance of Playfair Visa and Migration Services. See Court Book (“CB”) 25. They assisted the applicant to prepare the application.[1]
[1] See CB 25-26
I refer to my judgment in AUJ15 v Minister for Immigration & Anor [2016] FCCA 1700 which sets out the background facts and summarised the Tribunal proceedings.
Grounds for Review
The grounds of review set out in her application are as follows:
a)The applicant was denied procedural fairness due to the failure by the Tribunal to indicate to the applicant what were the issues arising that pertained to the applicant in relation to the decision under review.
b)The applicant was denied procedural fairness due to the failure by the Tribunal to invite the applicant to give evidence and present arguments relating to the issues arising that pertained to the applicant in relation to the decision under review.
c)The applicant was denied procedural fairness due to the failure by the Tribunal to separately consider her claim (for a protection visa) in the decision that it made in this matter.
Arguments before the Court
Ground One
In Mr Thomas’ written submissions he complains that the Tribunal focused on the father’s claims ‘almost exclusively’. He also refers to the proceedings taking place in the daughter’s absence. The hearing was adjourned on several occasions at the request of the applicants. The daughter was invited to attend the hearing on each occasion the hearing date was scheduled as is evidenced in the CB at pages 161, 178, 185, 195 and 201. All the letters were addressed to both applicants. The daughter chose not to attend the hearing.
The applicants had the assistance of a migration agent who prepared written submissions which appear at CB commencing on page 207. The submissions refer to the delegate’s failure to consider the daughter’s position and addresses this specifically at page 220 where the submissions refer to the delegate’s failure to consider the daughter’s position however the submissions do not expand on this and merely say that the applicant and the daughter’s fears of persecution are well founded.
The Tribunal addresses the daughter’s position at a few points in its decision. Firstly at CB 493 paragraph [12(n)]. The Tribunal refers to asking the applicant father what he thought might happen to him if he returned to Vietnam, he replied that he would be jailed and the authorities would cause problems for his daughter because he had left Vietnam twice and had “gone against country”. He said he did not know what would happen but that he and his daughter would be persecuted. At subparagraph [o], the Tribunal recorded that the applicant saying that he wanted to stay in Australia and he wanted his daughter to have freedom in a multicultural country.
At [27] the Tribunal addressed the applicant’s father’s claim that he and his daughter would not be able to practice their religion freely. However the tribunal member observed that the applicant father’s own evidence as that he had been able to practice his own Catholicism for many years in Vietnam and was able to raise his children as Catholics. The Tribunal was not satisfied that the applicant father and his daughter would not be able to practise their religion if they returned to Vietnam.
Principally the daughter’s complaints centre on a lack of procedural fairness. The difficulty is that her case is really being argued in hindsight.
The Tribunal has obligations to invite applicants to attend hearings section 424(3) of the Migration Act 1958 (Cth) (“Migration Act”) states: “A written invitation under subsection (2) must be given to the person.”
Whether an applicant takes up that invitation or not is a matter for them.[2]
[2] See, Prasad v Minister for Immigration and Ethnic Affairs (1995) 6 FCR 155.
In his written submissions, Mr Thomas complains that the daughter was denied procedural fairness because the Minister did not appoint a litigation guardian for the daughter and her rights as a child were ignored. He complains that both the delegate and the Tribunal assumed that her rights were completely subsumed by the father’s claims and that the tribunal ought to have considered separate representation for the child after rejecting the applicant father’s evidence. In this regard she refers to the parens patriae jurisdiction and the decision of the Secretary of Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 258 – 259 (“Marion’s case”). That case which is frequently referred to as Marion’s case, was decided in completely different circumstances.
This involved the welfare of Marion who was a severely disabled child. At the time of the decision in Marion’s case, the child was 14 and had started menstruating. She was not capable of looking after herself and understanding the implications of sexuality, pregnancy and motherhood. The parents sought permission from the Family Court of Australia to have Marion undergo a hysterectomy and an ovarienectomy to prevent menstruation stabilise hormonal fluxes and imbalances avoiding psychological and behavioural problems to Marion.
On appeal, the issue the High Court of Australia (“High Court”) had to decide on in Marion’s case was whether or not parents or guardians were able to authorise the sterilisation or whether the court should approve the procedure. The High Court held that as the procedure is irreversible, the decision should be considered to be outside of the ordinary incidence of parental responsibility and that this would be a safeguard to the child as a consequence of the wrong decision were grey. The High Court distinguished the circumstances of Marion from cases where sterilisation would be a by-product of surgery to treat the disease or other malfunction. Marion’s case has no application to the circumstances here. There is no potential conflict of the father’s interests with the daughter’s interests.
Mr Thomas also relied on the decision of AZAEF v Minister for Immigration and Border Protection [2016] FCAFC 3 (“AZAEF”). That decision refers to the Immigration (Guardianship of Children) Act 1946 (Cth). Section 6 of that Act provides for the Minister to be the guardian of non-citizen children. Non-citizen children are defined in section 4AAA. It does not apply if a child enters Australia in the charge of a parent of the child. That act has no application to the daughter. Mr Thomas did not refer to any other authority in support of this submission that the Minister should have provided a litigation guardian for the daughter.
AZAEF concerned a six year old girl and her half-brother who was 19 from Vietnam. The applicants’ migration agent had made submissions to the Tribunal claiming that the six-year-old girl had a well-founded fear of persecution for reasons which included being a member of social group of children living in poverty. The migration agent made arguments at an interview with the Independent Protection Assessor that the sister should be assessed as a child in her own right.
Unlike in AZAEF, here the daughter did not make any claims before the Tribunal based on her status as a child. Furthermore White J referred to in Marion’s case and parens patriae in the context of considering the “vulnerability of the appellant as a young child tender years without appropriate parental supervision.” The daughter in this case is in a different position. She did not make any claim that her father would not be in a position to continue to care for her if they returned to Vietnam.
The respondent also points out in his written submissions that AZAEF concerned a review from an independent assessor where common law procedural applies, not Part 7, Division 4 of the Migration Act.
Part 7 Division 4 of the Migration Act contains the provisions with respect to procedural fairness. The division is an exhaustive statement of natural justice hearing rule applying under the Act.[3]
[3] See Migration Act 1958 (Cth), s.422B.
Section 424(1) provides that in conducting the review the Tribunal may obtain information. If it does so it must have regard to that information in conducting the review. The Tribunal may invite a person either orally or in writing to give information.[4]
[4] Migration Act 1958 (Cth), s.424(3).
Section 424AA deals with information and invitation given orally by the Tribunal. It is an important provision and is set out below.
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information
review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424A deals with information and invitation given in writing by the Tribunal. It states:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 425 requires the Tribunal to invite applicant to appear before the tribunal to give evidence and present arguments relating to the issues arising with respect to the review unless the applicant considers it will decide the review in the applicant’s favour or the applicant consents to the Tribunal conducting the review in the absence of the applicant.
Section 425A addresses the notice of invitation to appear. That notice must give particulars as to the time and place in which the applicant is to appear. The notice must be given in one of the prescribed methods. The notice must also be given at the prescribed period or receipt is not a prescribed period a reasonable. The notice must also contain a statement about section 426A which addresses the failure of the applicant to appear before the Tribunal.
Section 426A give the Tribunal the power to make the decision on review without taking any further action enabling the applicant to appear. Alternatively the Tribunal may reschedule in the hearing.
Mr Thomas relies on [101] of Jaffarie v Director General Security [2014] FCAFC 102 where the Federal Court said:
The content of the rules of natural justice or procedural fairness, where those rules apply, is infinitely variable and must necessarily take into account the statutory context in question. And, in the present context, “whether the obligation to afford natural justice has been discharged is not to be evaluated minutely or in a manner divorced from its context”: Habib v Director-General of Security [2009] FCAFC 48 at [77], (2009) 175 FCR 411 at 430 per Black CJ, Ryan and Lander JJ.
There is no doubt that this is an accurate statement but it does not advance the applicant’s argument as his submissions that the Tribunal breached its obligations of procedural fairness in the context of this case given the daughter’s age and circumstances cannot be made out.
Ground Two
This ground is essentially a claim that the migration agent did not competently present the daughter’s case. The response to the hearing invitation, appearing at Court Book 204, shows that the father and his migration agent would be appearing at the hearing whereas the daughter did not have lengthy written submissions by the applicant’s migration agent dated 29 March 2015 were also filed. Much of those submissions consist of extracts of country information. Contrary to the applicant’s written submissions prepared, the applicants were represented at the tribunal hearing by the migration agent to attend by telephone from Perth.[5]
[5] CB 489[5].
Ground Three
In ground three the daughter complains that the Tribunal failed to consider her claim separately to her father and refers to paragraph 14 of submissions basing separate claims to her father. The difficulty with this ground is that those claims were not made before the Tribunal.
The Tribunal, albeit briefly, did deal with the claims made by daughter. It would be different altogether if she had raised a different claim, such as her being a membership of a social group for example, young female children and the Tribunal had failed to consider that claim. That is not what happened here. This is a child who came to Australia with her father and makes claims of his client and you had a migration agent who made claims referring to both of them although in the circumstances of the case primarily to the father. Whilst it may seem like an obvious claim with respect to the daughter being a female under 18 years of age. That claim was not made on her behalf.
With respect to the procedural fairness claims, the daughter was invited to attend this hearing and give evidence and present arguments. The response to the hearing invitation dated 25 March 2015 indicated that the daughter would attend the hearing together with the father and their migration agent.[6] The migration agent was clear in his written submissions that he represented both applicants and he attended this hearing. The critical issue is opportunity. Whether or not an applicant takes up that opportunity is a separate matter entirely. The applicant daughter relies on s.442B(3) of the Migration Act which states that the Tribunal must be fair and just.
[6] CB 204-5.
I do not accept Mr Thomas’ submissions that it was not fair and just to ensure that she appeared before the Tribunal. The Tribunal is not obliged to force a person to appear, only to invite them to appear.
The migration agent did not make any application for the daughter to appear at the hearing on another day or to make further written submissions. The hearing record which appears in the supplementary Court Book records that the daughter was studying.
There are clear and specific credibility findings against the father in the delegate’s decision.[7] Therefore, both applicants were on notice that his credibility was in issue not just generally but with respect to particular aspects of his claims. It would be different if the delegate has found the application to be credible on these points. It is incorrect to say that the daughter was not on notice of the issues as the delegate’s decision makes this clear. Given the adverse credibility findings made by the delegate either two possibilities were that the Tribunal would also make adverse credibility findings and affirm the delegate’s decision or that it would make more favourable findings than the delegate which would assist the daughter’s case.
[7] CB 142-3.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 the High Court said at paragraphs [35] and [36]:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
The first respondent relied on SZQDI v Minister for Immigration [2012] FCA 932. Katzmann J found that the Tribunal did not make a jurisdictional error by issuing an invitation pursuant to s.425 before receiving the delegate’s record of decision. The Tribunal’s task is to review the decision. It is not bound by the delegate’s reasons and embarks on a fresh hearing not an appeal. Katzmann J said at para [51] and [52]:
[51] Contrary to the appellants’ submission (said to be based on the judgment in SZBEL) the notice under s 425 need not define the issues on the review. Its purpose is to inform an applicant that s/he will be given an opportunity to be heard before a determination will be made. The point the court was making in SZBEL was a different one. The issue in SZBEL was whether the tribunal denied the appellant procedural fairness by not putting to him at any time the critical factors upon which the decision was likely to turn. In SZBEL the tribunal never challenged or queried the appellant’s account or invited him to amplify any of the three particular aspects of the account he had given in his statutory declaration and repeated in his evidence but which the tribunal later found to be “implausible”. The first he knew of the tribunal’s reaction to his account was when he received the tribunal’s published decision. That situation is far removed from the present. The ratio of the judgment in SZBEL appears in (at [35]):
[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But if the Tribunal takes no steps to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
[52] This does not mean that at the time the tribunal invites an applicant to attend a hearing, it must identify the issues arising in relation to the decision under review. Indeed, the appellants made no such submission. Rather, it means that an applicant is entitled to assume, unless the tribunal advises otherwise, that the issues identified by the delegate are the only issues. The problem arises if the tribunal makes an adverse finding about an applicant on an issue not previously raised, depriving him or her of an opportunity to be heard. SZBEL is not authority for the proposition that the purpose of the notice under s 425 is to define the issues. No objection is taken to the invitations issued after 23 November 2009, none of which identify the issues.
Flick J observed in SZTXE v Minister for Immigration [2015] FCA 493 at [18]: “Section 425(1) does not impose any obligation on the Tribunal to ensure that an applicant makes the best of the invitation to attend a hearing.” There is no separate provision for applicants under the age of 18.
The Migration Act does not make provision for an applicant under the age of 18 to have a next friend, tutor or guardian. The statutory procedure must be applied. It is not analogous to court proceedings. The wording of s.425 is plain. It invites the applicant in person to appear both to give evidence but also to present arguments: see Odhiambo v Minister for Immigration [2002] FCAFC 194 at [101].
Mr Brown the solicitor advocate for the first respondent submitted that the applicant introduced a new ground during the course of the argument as it does not properly arise from ground 3 which is that the Tribunal did not consider the whole of the daughter’s claims. That argument cannot be sustained when the Court Book is examined because it is clear that the daughter’s claims were mostly the same as her father and the Tribunal did consider her position as well as her father’s. Given the claims that were presented to the Tribunal it was inevitable and proper for the Tribunal to largely focus on the father’s claims. This is not a case where the Tribunal has not expressly dealt with an issue raised rather it is that the claims the daughter now seeks to raise were not raised before the Tribunal.
None of the grounds for review have been made out. The Tribunal did not make a jurisdictional error. Therefore the applicant must be dismissed.
The Minister seeks costs in the sum of $4,500. Which is less than the amount allowed for under the Federal Circuit Court’s Scale of costs. I will make that order.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 7 July 2016
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