Azafm v Minister for Immigration
[2015] FCCA 2831
•23 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZAFM v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2831 |
| Catchwords: MIGRATION – Judicial review – failure to make obvious and critical enquiry – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a) and (aa) |
| Prasad v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550 Luu v Minister of Immigration and Multicultural Affairs [2002] FCAFC 369 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 |
| Applicant: | AZAFM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 397 of 2014 |
| Judgment of: | Judge Harland |
| Hearing date: | 11 August 2015 |
| Date of Last Submission: | 11 August 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 23 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Wells |
| Solicitors for the Applicant: | Joseph Maniscalco |
| Counsel for the Respondents: | Mr Tredrea |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ in the nature of certiorari be issued to quash the decision of the second respondent made on 21 March 2014.
A writ in the nature of mandamus be issued directing the second respondent to reconsider and determine the matter according to law.
That the first respondent pay the applicant’s costs.
The name of the second respondent be amended to Administrative Appeals Tribunal.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 397 of 2014
| AZAFM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant filed an amended application seeking judicial review on 30 April 2015. It contains two grounds.
Ground 1 alleges that the Tribunal’s decision with respect to its satisfaction as to the criteria in section 36(2)(a) and (aa) of the Migration Act1958 (Cth) (‘the Migration Act’) was unreasonable because it failed to make an obvious and critical enquiry about the applicant’s mother and sister’s successful applications for permanent protection visas.
Ground 2 complains that the Tribunal did not comply with s.420(1) of the Migration Act in that it did not exercise its power in a bona fide manner. Also the Tribunal did not invite the applicant to appear in circumstances where he was medically unfit to participate. The applicant was denied procedural fairness because he was not given a meaningful opportunity to appear because of his medical condition.
I will not set out the factual claims of the applicant. This is set out in the Tribunal decision and the detailed written submissions filed by both parties.
The applicant relied on 4 affidavits at the hearing before this Court. The respondent did not oppose to the admission of those documents and did not require any of the deponents for cross-examination. Those documents are:
a)the affidavit of the applicant sworn on 30 April 2015;
b)affidavit of Cathrynne Lester sworn on 30 April 2015;
c)affidavit of Daniel Moya sworn on 27 April 2015. He is also a migration agent at Australian Migration Options.
d)Affidavit of Michael McInerney sworn on 30 April 2015;
The applicant gave evidence about his physical health at and around the time of the Tribunal hearing. He says his poor health was obvious to the Tribunal member; that he required several breaks during the hearing but was anxious to finish the hearing as he was concerned for the safety of his wife and children who were in Egypt. A few days after the hearing he was admitted to hospital, and was in hospital from 24 August 2014 until 5 September 2014 during which time he required surgery. He was admitted to hospital for a second time and remained admitted between 15 September 2014 until 15 October 2014, during which time he required further surgery.
The applicant says that his mother and sister were granted protection visas and have subsequently been granted Australian Citizenship. They were represented by Ms Horgath. He says his sister rang her and asked her to represent him. He says he assumed Ms Horgath told Ms Lester about his mother and sister’s successful applications. He says that if he had known that the agent working on his file was not aware of his mother and sister’s status and that this was relevant that he would have raised it with them. He says if he had realised that was relevant he would have raised it at the Tribunal. He says the Tribunal member asked questions about his mother and sister but did not ask about their visa status. He annexes several medical documents to his affidavit along with copies of his mother’s and sister’s citizenship papers. It is clear that the applicant was seriously unwell with carcinoid tumours which were removed.
Ms Lester is a migration agent. She says she first consulted with the applicant on 15 March 2013. She says she cannot recall whether or not the applicant told her that he had family members living in Australia. She says she was unaware that Ms Hogarth of her office had represented the applicant’s mother and sister in their applications for protection visas. She says that the applicant did not tell her that his mother and sister had been represented by her office and had obtained protection visas in 2009. She says she was not working for Australian Migration Options in 2009. She goes on to say that she did not ask the applicant questions about other family members in Australia and how they came to be in Australia. She says this is because she did not complete his application forms, statement or submissions for review as other agents in the office completed those documents. She did not attend the review hearing as she was on leave and that another colleague attended.
Ms Lester’s evidence is indicative of fairly poor practices in her office. It would appear that very basic and obvious information is not collected by the various employees and basic information is not shared amongst employees working on the same file. None of that is the fault of the applicant.
Ms Lester annexes the refugee claims of the applicant’s mother and sister to her affidavit.
Ms Lester says her office had not been advised by the applicant about his physical medical condition and consequently was not in a position to advise him to seek an adjournment of the Tribunal hearing. Ms Lester also gives evidence about visiting the applicant in hospital in October 2014 and advising him of the outcome of the Tribunal hearing.
Mr Moya appeared at the Tribunal hearing with the applicant as Ms Lester was on sick leave. Mr Moya says that Ms Hogarth did not tell him that she had represented that applicant’s mother and sister. He says at the hearing it was obvious that the applicant was unwell; that he was panting and struggling to answer questions. Mr Moya says the applicant was insistent that he wanted the hearing to continue. He says he did not realise the nature and extent of the applicant’s illness until after the hearing.
Mr McInerney is a clinical psychologist. He first saw the applicant on 24 November 2014 and prepared a report dated 19 February 2015 which is annexed to his affidavit. The applicant has received psychological therapy from Survivors of Torture and Trauma Assistance and Rehabilitation Service and continues to receive assistance from that service. After administering the Impact of Events (Revised) Scale and conducting clinical interviews, Mr McInerney said that the applicant is suffering from Post Traumatic Stress Disorder (PTSD). Mr McInerney expresses the clinical opinion that the applicant suffers from severe depression and extreme levels of stress and anxiety indicative of PTSD and that his psychological presentation is consistent with the history of severe trauma. He goes on to express the opinion that due to a number of traumatic factors impacting the applicant at the time of the Tribunal hearing, that the applicant would not have been able to adequately express his concerns and represent himself adequately before the Tribunal.
Argument with respect to ground 1
The Tribunal handed down its decision on 26 September 2014. The decision sets out factual matters including that on 11 December 2012 the applicant applied for a visa to come to Australia to visit his mother and two sisters who live here.
The applicant argues that the Tribunal was constructively aware of the applicant’s mother’s and sister’s successful refugee claims and should have made the obvious and critical enquiry into this. In the unusual circumstances of this case, this submission has merit. The Tribunal decision itself refers to his family so it is an enquiry that could have and should have made.
The respondent argues that the applicant had the opportunity to bring his mother and sister to the Tribunal hearing to give evidence but chose not to do so. This would be true if he was receiving competent advice from his migration agents. It is apparent form the evidence filed that this is not what occurred in this case. The Tribunal process is inquisitorial not adversarial. There can be potentially serious consequences for an unsuccessful applicant for a protection visa.
The circumstances of this case raised an obvious and critical enquiry which the Tribunal should have made. It is information which was readily available to the Tribunal. It is similar to the circumstances in Prasad v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550 where Wilcox J found that the Tribunal decision was unreasonable because of the failure to make an obvious and critical enquiry. The information was central to the issue the Tribunal had to determine. In this regard the applicant’s counsel quotes from the Full Court of the Federal Court in Luu v Minister of Immigration and Multicultural Affairs [2002] FCAFC 369:
“One may say that the making of a particular decision was unreasonable -and, therefore, an improper exercise of the power -because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.”
In Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 the High Court held that a failure to enquire may in some circumstances amount to a failure in its duty to review.
The first respondent argues that the evidence of the applicant’s mother and sister could not corroborate the applicant’s claims because his difficulties started after they left Egypt. That does not necessarily follow because the nature of the difficulties they experienced were similar. There is also some considerable force in the submission that his mother and sister could have given evidence. They were readily available. Certainly the applicant’s migration agents failed to represent their client’s claims properly. Their conduct leaves much to be desired and it is hoped that they have implemented procedures to ensure such obvious information is not overlooked again. Nonetheless this does not alleviate the Tribunal of its duty to make an obvious and critical enquiry in the circumstances of this case.
The first respondent admits that the adverse credibility finding is not a fact and that therefore a failure to make an enquiry about a factual matter being the circumstances of the applicant’s mother and sister being granted protection visas. This submission cannot be supported because those factual matters may well have influenced the credibility findings.
In the circumstances of this case it would not have been futile to make the enquiry because of the similarity of circumstances of the applicant’s mother and sister. This could have made a critical difference to the outcome of the Tribunal’s decision. It is also clear that the information would have been easily obtainable by the Tribunal so as not to be an onerous enquiry.
I am satisfied that the failure to make the critical enquiry in the circumstances amounts to a jurisdictional error.
Argument with respect to ground 2
With respect to the issue of not adjourning the hearing, paragraph 11 of the decision is significant:
“At hearing [sic] the applicant appeared unwell. He stated he had been on antibiotics for the previous 10 days for an infection. The Tribunal notes the applicant has been diagnosed with Hepatitis C. The Tribunal does not have medical expertise and cannot say whether the applicant was suffering from a mere infection, complications of Hepatitis or exhibiting symptoms consistent with a mental health condition. However the Tribunal offered a number of breaks during the hearing, which the applicant took. The Tribunal offered to adjourn the hearing to another date, but the applicant insisted on continuing. The Tribunal raised the issue with the representative, noting the applicant’s counsellor was present as a support person, and asked whether they believe the hearing should be adjourned. The representative confirmed his client wished that the hearing be held as scheduled.”
The second ground for review is weaker. It is difficult to see what more the Tribunal should have done in circumstances where the applicant was represented by a migration agent and had a support person. He was advised by his agent that he could ask for an adjournment and refused. No one knew the extent of his illness at the time. It is only in hindsight that it became apparent just how unwell he was. The Tribunal did offer the applicant an adjournment and he refused after receiving advice. There is no duty compelling the Tribunal to adjourn the matter in those circumstances. It may well have been different if the applicant was not represented that day. The applicant points out that it was not his usual migration agent but another agent from the same firm. It is reasonably expected that the agent who appeared on behalf of the applicant had been properly briefed. It is not a matter that the Tribunal would be reasonably aware of.
The applicant argues that the psychological assessment of the applicant, noting that he is suffering from PTSD, should have given weight to the Tribunal finding that the applicant was unable to meaningfully participate in the hearing at that time.
The first respondent relies on Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [45] wherein the court stated:
The third alleged error presupposes that there is some competency requirement as to the satisfaction of which the Tribunal must be convinced before an applicant can take part or continue to take part in proceedings before the Tribunal. This assumption is without foundation. The Act does not provide for any such competency requirement, analogous, for example, to that of fitness to plead. Section 420(2)(a) of the Act expressly provides that the Tribunal is not bound by the rules of evidence. The phrase "the rules of evidence" is taken to include both the common law rules of evidence and the Evidence Act 1995 (Cth). The only requirements that could be described as competency requirements are that an application for review by the Tribunal can only be made by a non‑citizen who is the subject of the primary decision (by the Minister's delegate)and who is physically present in the migration zone when the application for review is made. The Act permits an application for a protection visa to be made by any person who is in Australia and who is not a citizen of Australia. That is not to deny that the rules of procedural fairness may, in particular circumstances arising in individual cases before the Tribunal, require some special steps or procedure to be followed. But there was no denial of procedural fairness in the present case.
I accept the first respondent’s submissions with respect to ground 2. The Tribunal did what could be reasonably expected of it. The applicant had the benefit of representation and rejected the offer of an adjournment. The fact that the applicant was unwell and became seriously unwell requiring hospitalisation soon after does not amount to a denial of procedural fairness. Ground 2 fails.
As the applicant has succeeded on the first ground, I will make orders quashing the Tribunal’s decision and remitting the matter for rehearing.
As the applicant has been successful the first respondent should pay the applicant’s costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 23 October 2015
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