BAF16 v Minister for Immigration
[2018] FCCA 1898
•12 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAF16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1898 |
| Catchwords: MIGRATION – Protection visa – application for judicial review of decision of Administrative Appeals Tribunal – claim to fear harm by unpaid workers from 2010 – delay in lodging Protection visa application – whether the applicant was afforded procedural fairness – whether Tribunal had an obligation to inquire – whether Tribunal failed to properly consider country information – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 36, 65, 422B, 424, 424A, 476 |
| Cases cited: Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 |
| Applicant: | BAF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 892 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 10 July 2018 |
| Date of Last Submission: | 10 July 2018 |
| Delivered at: | Melbourne |
| Orders Pronounced: | 10 July 2018 |
| Delivered on: | 12 July 2018 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor for the Respondents: | Mr Grant |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed at $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 892 of 2016
| BAF16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 2 May 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 April 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa.
On 10 July 2018, I made an order that the application be dismissed. These reasons explain why that order was made.
Background
The applicant, a multilingual male Malaysian national of Chinese ethnicity aged 44 years, first arrived in Australia on 21 August 2010 holding an Electronic Travel Authority visa, valid for three months.
On 3 August 2015, the applicant applied for a Protection (Class XA) visa.
By his visa application, the applicant recounted an incident in 2010 in which, as he claimed, he had been cheated by his Malay business partner leaving the applicant unable to pay 15 building workers their wages.
The applicant claimed that, being unaware of the applicant’s partnership, the workers alleged that it was he who had cheated them of their wages such that they had started to torture, beat and threatened to kill him. The applicant claimed that he had been unable to report the matter to the police because his partnership was a verbal deal and he had no proof of the partnership. By his application, he also expressed the hope that he could explain his claim in further detail to an immigration officer.
On 4 August 2015, a delegate of the Minister wrote to the applicant informing him that the application may be decided without requesting any further information of him. The applicant was given the opportunity to contact the Department in order to discuss his claims to the visa. The applicant did not take that opportunity to attend an interview.
On 9 November 2015, the delegate refused the visa application. The delegate found that the applicant was not a person in respect of whom Australia had protection obligations pursuant to ss 36(2)(a)-(aa) of the Migration Act 1958 (Cth) (Act): Decisional Record at [22]-[27], [32]-[34].
On 2 December 2015, the applicant applied to the Tribunal for review of the delegate’s decision to refuse the visa application.
On 22 February 2016, the applicant was invited to appear before the Tribunal on 21 March 2016 to give evidence and present arguments relating to issues arising on the delegate’s decision.
On 21 March 2016, the applicant appeared before the Tribunal, doing so with the assistance of a Mandarin interpreter.
On 5 April 2016, the Tribunal made a decision affirming the decision of the delegate not to grant the applicant a Protection visa. The Tribunal provided a statement of its reasons for its decision (Reasons).
The Tribunal examined the applicant’s claim in detail and confirmed with the applicant that this constituted the only claim on which he relied and that he continued to fear harm at the hands of the 15 unpaid workers arising from the 2010 incident (whether or not he returned to Selangor or another part of Malaysia): Reasons, [9]-[20], [24], [30].
The Tribunal raised with the applicant available country information supplied by DFAT as disclosed in the delegate’s decision and also raised inconsistencies with the applicant between his written statements and that which he had said in the course of the hearing: Reasons, [21], [22].
The Tribunal examined the reason for the applicant’s delay in lodging his Protection visa application: Reasons, [23]. The Tribunal found the applicant’s evidence to be unconvincing on a number of issues, disbelieved the claim which he made as grounding a well-founded fear of persecution or a real risk that he would suffer significant harm if returned to Malaysia and found that its disbelief of the was reinforced by the significant delay in lodging the application: Reasons, [24]-[29], [32]. The Tribunal concluded that it was not satisfied the applicant was a person in respect of whom Australia had protection obligations.
Procedural History
On 2 May 2016, the applicant filed an application for a judicial review of the decision made by the Tribunal on 4 April 2016.
The applicant’s affidavit affirmed on 2 May 2016 annexed a copy of the Tribunal’s decision, but adduced no further evidence in support of the application or otherwise informing the grounds of judicial review.
By a Response filed on 10 May 2016, the Minister contended that the grounds and particulars in defence of the application did not establish any jurisdictional error in the Tribunal’s decision.
On 28 September 2016, orders were made, by consent, listing the matter for final hearing. Further orders were made by consent regulating the filing by the applicant of any amended application, affidavits, written submission and list of authorities.
The applicant did not take the opportunity provided by those orders to file any further material.
The matter was listed for Final Hearing on 10 July 2018.
Consideration
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).
Certain criteria for protection visas are those set out in s 36 of the Act.
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[1] Minister for Immigration and Citizenship v SZMDS.[2] Thus, if the criteria for the grant of a protection visa are satisfied, the Tribunal must grant the application or, if not so satisfied, the visa application must be refused.
[1](2004) 78 ALJR 992, [37]-[38].
[2](2010) 240 CLR 611, [40], [102].
By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied.[3]
[3]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
The applicant advanced a single ground of review which reads:
I’m [BAF16] hereby requesting the order that from the decision of the Tribunal, Immigration Assessment Authority or minister to be quashed, with stating that it were made unfairly and without a proper investigation. As a Malaysian citizen, I know well about my country’s law and management which is abused and full of racial elements, as neglected by the minster or by the law enforcement. According to the tribunal decision it was stated that i didnt meet the criteria or the elements in s.5LA and therefore i was not have a well-founded fear of persecution as defined in s.5J and therefore, was not a refugee as defined in s.5H and s 36(2)(a) and the Tribunal, not satisfied with my reason, which is im now demanding the decision to be revised and reconsidered because i believe the tribunal didnt look and investigate more closely on the environment aspect and the administration in Malaysia which is fairly known is corrupted from top to bottom. I didnt and couldnt get any justice there so that’s what had made me to come to australia, in fear of the safety of my life. Secondly the tribunal also mentioned that i didnt provide any evidence which is it wasnt fair for me. Im currently, here, in australia so it is a very tough issue for me to gather any details or documents of evidence to be submitted to the tribunal or to the DIBP. So as a clear conclusion, the decision from the Administrative Appeals Tribunal and the Department of Immigration and Border Protection are not relevant as it needs to be revised by the magistrate of Federal Circuit Court of Australia (Errors in original).
As the applicant was self-represented before me, I have re-examined the reasons and the materials comprising in the Court Book. Doing the best that can be done with the application, the following complaints may be distilled from the composite ground of review:
a)the decision was made unfairly and without a proper investigation;
b)the Tribunal had not looked at or investigated more closely the extent of corruption in Malaysia;
c)the Tribunal had dealt with the applicant unfairly in that it had identified that the applicant had not provided any evidence.
Procedural fairness
The Tribunal observed its obligations of procedural fairness toward the applicant. He was invited to attend a hearing before the Tribunal and afforded an opportunity to present evidence and arguments on the issues arising in relation to the delegate’s decision to refuse the application. The applicant was afforded the use of a Mandarin interpreter.
The applicant attached a copy of the delegate’s decision to his application for review by the Tribunal and was accordingly on notice of the issues that would be ventilated on the merits review of that decision: SZBEL vMinister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [33]-[35].
As emerges from consideration of the decisional record of the delegate and of the Reasons, the applicant’s credibility was one of the issues to be ventilated on review. When the applicant attended the hearing the inconsistencies in his evidence and the question of delay were raised with him: Reasons at [22]-[23], [25]. The applicant’s complaint of unfairness may be understood as engaging with s 424A of the Act.
Where it applies, sub-s 424A(1) provides that the Tribunal must, amongst other things, give to the applicant, in a 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.
The applicant’s complaint of unfairness may conceivably be understood as meaning that the Tribunal was obliged to put him on notice that information relating to his credibility would be the reason, or a part of the reason, for affirming the delegate’s decision to refuse the visa. It is settled that inconsistences or gaps in evidence do not comprise information for the purposes of s 424: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). In SZBYR, the plurality stated at [18]:
. . . if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:[4]
. . . does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc . . .
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence . . .
[4](2004) 206 ALR 471 at 476‑477, citing Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282‑284.
In the present case, insofar as the applicant made a generalised complaint of unfairness, I see no basis for a conclusion that the Tribunal failed to comply in any respect with an obligation to provide him with information that his credibility was or would be the reason, or a part of the reason, for affirming the delegate’s decision.
Further, the applicant had attached a copy of the delegate’s decision to the application for review by the Tribunal, thereby negating the necessity for such information to be provided again by the Tribunal to the applicant: see s 424A(3)(b). The delegate’s decision put the applicant squarely on notice that his credibility was in issue.
Insofar as the application complained of the Tribunal’s consideration of delay as a factor that was relevant to its decision, this too was information which arose from the delegate’s decisional record. Since the applicant was in possession of the delegate’s decision it too was information to which the obligation in s 424A(1) did not apply: see s 424A(3)(b); Minister for Immigration and Citizenship vChamnam You [2008] FCA 241 at [16] (Sundberg J).
Failure to inquire
Nor do I accept that in the circumstances of the present application, the Tribunal was fixed with an obligation to conduct a further investigation of issues beyond those which were raised before it: cf Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [43] (Gummow and Hayne JJ, Gleeson CJ agreeing); VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459, [27] (Crennan J).
In Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 (SZIAI), French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held at [24] that it was difficult to see any basis on which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law. This statement is to be understood in the context that by force of s 422B(1) of the Act, the matters prescribed by Div. 4, Part 7 of the Act are taken to be an exhaustive statement of the requirements of natural justice in relation to the matters that it deals with.
Within Div. 4 of Part 7, s 424(1) provides that in conducting a review, the Tribunal may get any information that it considers relevant and that if it does so it must have regard to that information in making the decision on the review. In SZIAI at [25], the plurality stated:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction[5]. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. . .
[5]See authorities collected in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 453 [189], n 214; [2001] HCA 51.
Here the Tribunal had information before it relating to corruption in Malaysia: Reasons at [21]. The applicant did not otherwise identify what was the critical fact or how such fact might easily have been ascertained. I accept the Minister’s submission that the applicant’s complaint of a failure to investigate the state of corruption in Malaysia did not relate to an issue that was easily ascertainable. I do not accept that the Tribunal was subject to any obligation to make inquiries about such matters.
To the extent that there was any complaint of a failure to investigate the question of corruption, this misapprehended the Tribunal’s decision – it is evident from the decision that the Tribunal did not accept that the applicant held a genuine fear that he was at risk of harm: Reasons at [21], [27]-[28]. The dispositive conclusion in the application was the Tribunal’s positive disbelief of the applicant’s claim: Reasons at [29]. In those circumstances, it was irrelevant whether the Tribunal had failed to investigate corruption. Having regard to the Tribunal’s disbelief of the applicant’s claim the treatment of country information was moot.
Insofar as the applicant’s complaints may otherwise be understood as seeking a further review in this Court of the merits of the application for a Protection visa, this is impermissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ), 291 (Kirby J). However, the close analysis of the factual evaluation and approach by the Tribunal is not merits review; it is part of the process of ensuring or assessing whether serious findings made about applicants have been made lawfully: SZSSG v Minister for Immigration and Border Protection [2018] FCA 670 at [6]-[7] (Allsop CJ). I have undertaken that evaluation of the Reasons and materials comprised in the Court Book.
Country information
In any event, upon my examination of the Reasons I discern no error in the analysis of the Tribunal that is suggestive of a failure to properly consider the available country information and to consider the applicant’s responses when that country information was raised with him.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, Gray, Tamberlin and Lander JJ said at [11]:
The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that. (emphasis added)
And at [13] their Honours concluded that:
. . . both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view . . .
The reasoning in NAHI has been applied in numerous authorities including, most recently, SZUEP v Minister for Immigration and Border Protection [2017] FCAFC 94 per Perram, Robertson and Wigney JJ. The Full Court stated at [27] that:
. . . subject to principles of legal unreasonableness, the weight to be given to country information is a matter for the Tribunal.
I discern no error in the approach taken by the Tribunal to the question of country information.
Applicant’s failure to adduce evidence
The applicant was given an opportunity to present evidence and raise arguments on the issues arising upon the decision of the delegate to refuse the visa application: Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166, [26] (Allsop, Jacobson and Graham JJ). It was not for the Tribunal to take that opportunity. The present case is not one in which the Tribunal regarded the absence of evidence to be dispositive of the applicant’s claims: see Reasons, [27]-[29]; and contrast, QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1448, [45] (Dowsett J)[6]; SZDIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1252, [14] (Hely J).
[6]Reversed on appeal on different issue: [2005] FCAFC 136 (Wilcox J, Madgwick J, Lander JJ).
Conclusion
For the reasons above, I found that the applicant’s ground of review was not supported and that no jurisdictional error was disclosed in the decision of the Tribunal.
The application was therefore dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 12 July 2018
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