BBG23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 281
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BBG23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 281
File number: PEG 61 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 28 March 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was required to “investigate” the applicant’s claims – whether the Tribunal failed to consider a claim or an integer of the applicant’s claims – whether the Tribunal failed to consider relevant material – whether the Tribunal failed to properly invite the applicant to attend a hearing before it – whether the conduct of the applicant’s “agent” amounted to a fraud on the Tribunal – whether the Tribunal’s decision was unreasonable – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K-LA, 36, 424, 425, 425A, 426A, 427, 441A, 441C, 476 & 499
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744
AMO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 326
AUV15 v Minister for Immigration & Anor [2017] FCCA 1951
Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353
Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
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
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
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 and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
MZABA v Minister for Immigration and Border Protection [2015] FCA 711
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of hearing: 19 February 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms C Mumford Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 61 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BBG23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 MARCH 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
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 applicant is a citizen of Malaysia (Court Book (“CB”) 21 & 51). He arrived in Australia in July 2016 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 56).
On 5 April 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 14-50 & 56). In that application, the applicant claimed that his business had failed (resulting in a cash flow problem) which resulted in him needing to borrow money from loan sharks. The applicant also claimed that he was being threatened by the loan sharks because he was not able to pay interest owed to them. The applicant further claimed that, should he return to Malaysia, he would be killed by the loan sharks who had been threatening him and his family (CB 45). The applicant also claimed that the “local police and government” in Malaysia are corrupt and that there is “no hope to seek help from them” (CB 47).
On 6 September 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 56-64). The delegate considered that, based on the country information before it, the Malaysian authorities would be “able to provide an adequate level of protection” to the applicant “from the criminal behaviour” he feared (CB 58). The delegate ultimately found that the applicant was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”) (CB 59).
On 21 September 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 65-69).
On 24 November 2022, the Tribunal invited the applicant to provide information to it by completing an attached “Applicant information form (s.424(2) response)” form (the “s 424 invitation letter”) (CB 74-81). The Tribunal asked the applicant to provide a response to that invitation (or to seek an extension of time within which to respond) by 8 December 2022 (CB 75).
Relevantly, the s 424 invitation letter stated (CB 75-76):
If you cannot provide the information by 8 December 2022, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us by 8 December 2022 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicant did not respond to the s 424 invitation letter (CB 100).
On 22 February 2023, the Tribunal invited the applicant to attend a hearing before it on 5 April 2023 (the “hearing invitation letter”) (CB 82-90).
On 31 March 2023, the applicant responded to the Tribunal’s hearing invitation letter by returning the completed “Response to hearing invitation” form (CB 91-94). In that form, when asked if he would “take part in the hearing scheduled for 5 April 2023”, the applicant answered “no” and indicated that he “consent[ed] to the Tribunal making a decision on the papers without taking further steps to allow [him] to appear” (CB 92).
On 5 April 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 97-106).
On 26 April 2023, the applicant lodged an application for judicial review and supporting affidavit in this Court (CB 1-13). That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 10 pages long and spans 49 paragraphs (CB 97-106). The final three pages include extracts of relevant legislative provisions (CB 104-106).
The Tribunal began by explaining that the applicant applied for the visa on 5 April 2017 and that the Minister’s delegate had refused to grant the applicant the visa on 6 September 2017 (at [1]-[2]).
The Tribunal then outlined the legislative criteria for the grant of a protection visa, summarising the requirements of the refugee criterion outlined in s 36(2)(a) of the Act, the relevant definitional provisions in ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act and the complementary protection criterion set out in s 36(2)(aa) of the Act. The Tribunal also explained that, in assessing the applicant’s protection claims, and in accordance with Ministerial Direction No. 84 (made under s 499 of the Act), the Tribunal had had regard to the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the “Department”), and country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”) (at [3]-[8]).
The Tribunal went on to outline the applicant’s background and migration history (at [10]-[12]) and detailed the claims set out in his protection visa application – noting, in particular, that the applicant had claimed that:
(a)he was seeking protection so that he would not have to return to Malaysia. He left Malaysia because he had borrowed money from loan sharks when his business failed and he had cash flow problems and was being threatened by those loan sharks because he was unable to pay the “unfairly high” interest rates (at [13]);
(b)he feared he would be killed by the loan sharks who had threatened him and his family (at [14]);
(c)the loan sharks “beat him up because he could not pay the interest to them” and “warned him that if he could not pay the money, they would kill him” (at [15]);
(d)he reported the problem to local police but they did not really help him. The applicant also tried to borrow money from friends and relatives but still could not cover his debts (at [16]);
(e)he tried to move to another part of Malaysia but he could not hide from the loan sharks because “the[ir] influence … was big, and they are ruthless and extremely cruel” (at [17]);
(f)the “local police and government were corrupt, so there was no hope of seeking help from them” (at [18]); and
(g)the loan sharks were constantly looking for him and enquiring about him and the applicant was “afraid to face them again” (at [19]).
The Tribunal then set out the procedural background relating to the review and noted, in particular, that the applicant had been invited to provide information in relation to his application by way of the s 424 invitation letter. The Tribunal explained that, despite the applicant’s failure to respond to that invitation, it had exercised its discretion to invite the applicant to attend a hearing before it (pursuant to s 425 of the Act). The Tribunal also noted that the applicant had responded to the hearing invitation (in writing) and indicated that he did not wish to participate in a hearing and consented to the Tribunal determining the matter “on the papers”. The Tribunal explained that, on that basis, it proceeded to determine the matter on the evidence before it (at [21]-[26]).
The Tribunal accepted that the applicant was a national of Malaysia and found that there was no evidence to indicate that the applicant had any right to enter and reside in any other country (at [28]-[29]).
The Tribunal considered that the applicant’s claims about past harm suffered in Malaysia were “vague and lacking in detail”. The Tribunal noted, in particular, that the applicant had not provided any detail about the loan shark he borrowed money from, when the loan was taken out, the amount or term of the loan or the rate of interest he was being charged. Further, the Tribunal noted that the applicant had not provided any details about when he became unable to pay the interest on his loan, when he or his family had been threatened by the loan sharks, when the loan sharks threatened to kill the applicant if he did not repay the loan or who had made that threat. The applicant also did not provide any information about when he made a police report or at which station he had reported the matter. Nor did he provide any information about where or when he attempted to relocate within Malaysia or how he was aware that the loan sharks are still looking for him or enquiring after him (at [32]).
The Tribunal noted that the applicant had provided “only limited documents in support of his application to the Department” (comprising of identity documents only) and did not provide any further evidence or information in support of his claims when lodging his review application with the Tribunal. The Tribunal also explained that it had invited the applicant (on 24 November 2022) to provide information in relation to his application (including details of his current circumstances and protection claims). The Tribunal further explained that (on 22 February 2023) it had invited the applicant to appear at a hearing before it and informed the applicant that it was unable to make a favourable decision on the information before it. The Tribunal noted that the applicant had declined the invitation to appear before the Tribunal to give evidence or to provide any further information in support of his claims. The Tribunal considered that the applicant had been given a reasonable opportunity to provide further information and proceeded to make a decision on the evidence before it (at [34]-[37]).
Based on the “vague and undetailed evidence before it”, the Tribunal did not accept that the applicant had ever borrowed money from loan sharks or that he or his family had ever been threatened by such loan sharks because he was unable to repay any loans. The Tribunal also found that the applicant would not be of any ongoing interest to any loan sharks in Malaysia (at [38]-[39]).
As the Tribunal had rejected the applicant’s protection claims in their entirety, the Tribunal was not satisfied that there was a real chance that the applicant would suffer any harm for reasons of owing money to loan sharks (as claimed) if he returned to Malaysia in the reasonably foreseeable future. The Tribunal also noted that the applicant had not made any other claims (apart from those claims relating to loan sharks) and that no other claims arose on the facts before it (at [40]-[41]).
Having considered the applicants claims (individually and cumulatively), the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and thus was not a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act (at [42]-[43]).
Having concluded that the applicant did not meet the refugee criterion (in s 36(2)(a) of the Act), the Tribunal considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal reiterated its earlier findings and stated that it was also not satisfied that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm if he were returned to Malaysia. On that basis, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act (at [44]-[47]).
The Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [49]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 26 April 2023 contains three grounds of review as follows (without alteration) (CB 4-5):
1.I believe that the case officer made a jurisdiction error by saying that I did not face a real risk of significant faced harm from illegal loan sharks. I may facing harm from illegal loan sharks people, because I unableto make a payment to them. if I have return to Malaysia may face harm, because local authorities cannot help or protect me. Therefore, I would like to apply for protection in Australia. However, the case officer failed to investigate the applicant’s claims by misconstruing the details set out in s36(2)(a), s 36(2C), s36(3), s5H(1) of the Act and Schedule 2 to the Migration Regulations 1994. The officer erroneously construed the existence of the risk of life or significant harm to the applicants upon their return to Malaysia.
2.I believe the AAT case officer made a jurisdiction error by affirming the decision not to grant the applicant a protection visa. The AAT case officer failed to consider my claim or integer of a claim and made an unreasonable decision.
3.I seek for my claims to be given a second chance for me to provide more details to strighter my claims but do not just to concern.
On 22 August 2023, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions.
On 5 February 2024, the applicant sent an email to the Court which stated:
I want to apply to postpone the court interview. Due to some personal reasons, I cannot go to the court for the interview on the date you scheduled. Please approve the postponement of the court interview.
That email correspondence also attached a letter from the applicant outlining some further concerns or “submissions”. Those “submissions” essentially restated the applicant’s protection claims and explained that the applicant had paid “someone” to assist him to “get a visa to stay here legally”. The applicant claimed that he was told that his “application [was] approved” and that he could stay in Australia. The applicant further claimed that he was not aware that his visa had not been approved until he received a letter about his visa telling him he needed to “appeal”. The applicant said that he “paid someone again” to assist with his Tribunal review.
Upon receipt of the correspondence from the applicant (outlined above), the Court wrote to the parties and, noting that the applicant was not legally represented, explained that it intended to accept the applicant’s email correspondence as an interlocutory application for an adjournment and would hear that application immediately prior to the substantive hearing in this matter. The parties were further advised that, in the event that an adjournment was not granted, the substantive hearing would proceed immediately after the hearing of the adjournment request and, on that basis, the parties should be prepared to proceed to a substantive hearing on the listed hearing date (being 19 February 2024).
The applicant appeared before the Court (on 19 February 2024) without legal representation but with the assistance of a Mandarin interpreter. The Court asked him if he still sought to have the matter adjourned. The applicant told the Court that there was “some miscommunication” and that he did not wish to adjourn the hearing. Rather, he simply wanted to “extend his visa”. On that basis, the Court proceeded to the final hearing on the matter (without the need to consider any “adjournment request”).
The Court confirmed with the applicant that he had received copies 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 applicant on 26 April 2024, a Court Book numbering 107 pages (marked as Exhibit 1), email correspondence from the applicant (with “submissions” attached) (marked as Exhibit 2), written submissions filed on behalf of the Minister on 12 February 2024 and an affidavit of service of Centaine Alexandra Mumford affirmed on 13 February 2024 (and filed on 14 February 2024).
Noting that the applicant was 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 that it is usually appropriate for an unrepresented applicant 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 applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
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 (“Djokovic”) 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 applicant the visa that he now seeks 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 applicant told the Court that the Tribunal had “failed to look at one of his documents”. When asked which documents he was referring to, the applicant told the Court that he could not answer that question because his previous agent was dealing with his case and he was unable to tell which documents had not been considered. When asked why he thought a document had been overlooked, the applicant explained that he had given everything to his agent but when his agent returned the documents to him, there was “one file missing”.
When the Court asked the applicant about why he did not attend the Tribunal hearing, the applicant told the Court that he actually did not know about the Tribunal hearing because “no one told him about it or that he was supposed to attend”.
The applicant also pleaded with the Court “to extend his visa”.
These issues, to the extent that they point to jurisdictional error, will be addressed below.
CONSIDERATION
Having considered all of the materials before the Court (including the applicant’s grounds of review, the information included in the applicant’s written “submissions” and his oral submissions before this Court) and noting that the applicant was unrepresented in this matter, the Court has interpreted the applicant’s concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392).
On that basis, the Court considers the applicant to raise the following concerns:
(a)whether the Tribunal was required to “investigate” the applicant’s claims;
(b)whether the Tribunal failed to consider a claim or an integer of the applicant’s claims;
(c)whether the Tribunal failed to consider relevant material;
(d)whether the Tribunal failed to properly invite the applicant to attend a hearing before it;
(e)whether the conduct of the applicant’s “agent” amounted to a fraud on the Tribunal; and
(f)whether the Tribunal’s decision was unreasonable.
These issues will be addressed by the Court below.
Whether the Tribunal was required to “investigate” the applicant’s claims
The applicant claims that the Tribunal failed to “investigate” his claims for protection.
As correctly submitted by the Minister (at [34] in written submissions filed on behalf of the Minister on 12 February 2024), s 5AAA of the Act specifies that it is an applicant’s responsibility to “specify all particulars of his or her [protection] claim” and “to provide sufficient evidence to establish the claim”: s 5AAA(2) of the Act. Further, the Minister (or the Tribunal) does not have any responsibility or obligation to “assist in specifying any particulars of the [applicant’s] claim” or to “establish, or assist in establishing the claim”: s 5AAA(4) of the Act.
As explained by this Court in Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828, the duty imposed on the Tribunal is to conduct a review: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. While the Tribunal has some powers (for example, pursuant to ss 424 and 427 of the Act) to obtain information, it does not have a general duty to make its own enquiries in order to make an applicant’s case or investigate an applicant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 (“SGLB”) at [43].
It is also well established that the Tribunal is under no obligation to investigate or conduct an inquiry to determine whether an applicant’s case might be “better put” or supported by additional evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]; SGLB at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
Further, in order for an error to arise of the sort the applicant alleges, three conditions must be established. There must be a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertainable and it must supply a sufficient link to the outcome as to constitute a failure to review: SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403 at [21] (cited in MZABA v Minister for Immigration and Border Protection [2015] FCA 711 at [61]).
That was not the case in this matter.
Here, the applicant did not provide any evidence or supporting documents with his visa application (save for a copy of his passport) (CB 48).
The Tribunal invited the applicant to provide additional information in support of his review application by way of the s 424 invitation letter (CB 74-81). The applicant did not provide any information in response to that invitation.
The Tribunal also told the applicant that it was “unable to make a favourable decision” based on the information provided in his visa application and invited the applicant to appear at a hearing before it to give evidence and present arguments (CB 82-90). The hearing invitation letter also gave the applicant a further opportunity to provide additional documents or information to the Tribunal. The applicant did not provide any further evidence to the Tribunal, declined to participate in the Tribunal hearing and consented to the Tribunal making a decision “on the papers” (CB 91-94).
Based on the limited information before it (being the applicant’s visa application only), the Court is satisfied that there were no obvious inquiries that the Tribunal ought to have made about any critical fact in this case.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to consider a claim or an integer of the applicant’s claims
The applicant claims that the Tribunal failed to consider his protection claims or an integer of his claim.
As this Court explained in AMO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 326, a Tribunal will err if it excludes from its consideration some factor which should affect its determination: Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353 at 360.
Establishing exactly what should have been considered by the Tribunal in any given matter is often a difficult task. As Judge Wilson explained in AUV15 v Minister for Immigration & Anor [2017] FCCA 1951 (footnotes omitted):
19.A substantial issue emerged in this case about the lengths and breadths of the applicant’s claim or claims. The task of ascertaining precisely what fell for determination by the Tribunal is frequently problematic in cases under the Act. It is equally problematic ascertaining whether, by the failure to consider a particular issue the Tribunal has in fact fallen into jurisdictional error. Unlike in the arena of civil litigation where pleadings define the controversy between the parties, as was pointed out by Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, proceedings before the Tribunal are not adversarial so issues are not defined by the pleadings or by any analogous process. There, the Chief Justice held that –
Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process (footnote omitted).
An applicant’s protection claims and their component integers are, however, considerations that are mandatorily relevant under the Act. Justice Allsop (as he then was) considered the nature of the Tribunal’s review function in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, stating (at [42]):
... The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act ... make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.
The Tribunal is not, however, required to give consideration to a claim that is not expressly made or that does not arise clearly on the materials before it. As explained in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 (“NABE”) at [61]-[62]:
…the tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.
Whatever the scope of the tribunal’s obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 at [31]–[32]. Gleeson CJ generalised from this, albeit in dissent, in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; 203 ALR 112; [2003] HCA 71 at [1]:
... Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
It follows that, if a Tribunal fails to consider a claim, or misunderstands or misconstrues a claim which is raised on the evidence before it, the failure to do so may constitute jurisdictional error. In this regard, it is noted that the Full Court of the Federal Court in NABE stressed as follows (at [63]):
It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with 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, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE at [47]. But as the Full Court said in WAEE (at [45]):
...If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.
As outlined above, the applicant did not provide any supporting materials or additional evidence to the Department or to the Tribunal. The only evidence before the Tribunal was the applicant’s visa application and the information contained therein.
In the applicant’s visa application, the applicant claimed that:
(a)his business failed and he had cash flow problems which “forced” him to borrow money from loan sharks (CB 45);
(b)he was being threatened by those loan sharks because he was not able to pay interest owed to them because it was unfairly high (CB 45);
(c)he would be killed by the loan sharks if he returned to Malaysia as they have been threatening and frightening the applicant and his family and he was scared to stay in Malaysia (CB 45);
(d)the loan sharks came to find him and “beat [him] up” for his failure to pay interest (CB 46);
(e)despite making a police report, they did not really help (CB 46);
(f)he tried to borrow money from his friends and relatives but he was still unable to cover his debts (CB 46);
(g)he tried to move to another part of Malaysia but the loan sharks have a large influence and are “ruthless and extremely cruel” (CB 46);
(h)the local police and government are “corrupt” (CB 47); and
(i)the loan sharks are constantly looking for him and making inquiries after him (CB 47).
The Tribunal set out those protection claims in its written reasons (at [13]-[19]).
The Tribunal considered the applicants protection claims in detail based on the limited evidence before it (being the information set out in the applicant’s visa application) (at [31]-[37]).
The Tribunal ultimately found as follows:
38.Based on the vague and undetailed evidence before it, the Tribunal does not accept that the applicant ever borrowed money from loan sharks in the past in Malaysia, that he ever was unable to repay the interest on such loans, that he and his family were ever threatened or frightened by these loan sharks, that he was ever beaten by these loan sharks, that he was ever threatened that he would be killed by these loan sharks, that he ever reported the matter to the police, that he ever had to borrow money from friends and relatives to help pay back these loans, that he ever tried to relocate to another part of Malaysia to avoid harm from these loan sharks, or that the loan sharks are constantly looking for him and inquiring about him since he left Malaysia.
39.Accordingly, based on the evidence before it, the Tribunal finds that the applicant never borrowed money from loan sharks in Malaysia as claimed, that he was never unable to repay the interest on these borrowings, that he and his family were never threatened or frightened by these loan sharks, that he was never beaten by the loan sharks, that he was never threatened that he would be killed by these loan sharks, that he never reported this matter to the police, that he never borrowed money from friends or relatives to repay the alleged loans, that he never tried to relocate to any other part of Malaysia to avoid the harm he feared from these loan sharks and that the loan sharks are not constantly looking for him or inquiring about him since he left Malaysia. Based on these findings, the Tribunal also finds that the applicant is not of any ongoing interest to any loan sharks in Malaysia.
40.The applicant has claimed that he fears serious harm if he returned to Malaysia now or in the reasonably foreseeable future from the loan sharks that he owes money to because he cannot repay these people. The harm he fears includes being killed or seriously injured. However, based on the evidence before it, the Tribunal has found that the applicant never borrowed money from loan sharks in Malaysia as claimed, that he never suffered the harm he claims to have suffered from loan sharks in the past in Malaysia and that he is of no ongoing interest to any loan sharks in Malaysia. Accordingly, on the evidence before it, the Tribunal is not satisfied that if the applicant returned to Malaysia now or in the reasonably foreseeable future, there is a real chance that he would suffer any harm whatsoever for reasons of owing money that he could not repay to loan sharks as claimed.
As can be seen from the Tribunal passages above, the Tribunal essentially rejected all of the applicant’s claims in their entirety.
Based on the information and findings outlined above, the Court is satisfied that the Tribunal considered all of the applicant’s protection claims. The Tribunal then made findings in relation to those claims based on the limited evidence before it.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to consider relevant material
Insofar as the applicant claims that the Tribunal failed to consider a relevant document, the Court notes that, as outlined above, the applicant did not provide any additional information or documents to the Department after the filing of his visa application (with which he provided only a copy of his passport) (CB 48 & 51).
Further, despite the Tribunal giving the applicant opportunities to do so, the applicant also failed to provide any further materials or information to the Tribunal in support of his review application.
The relevant material before the Tribunal was thus limited to the applicant’s visa application, the delegate’s decision and the applicant’s Tribunal review application.
As outlined above, the Tribunal considered the applicant’s protection claims in detail (as raised by the applicant in his visa application). The Tribunal also confirmed that it had been provided with a copy of the delegate’s decision (dated 21 September 2017) by the applicant (together with the accompanying notification letter).
Further, when asked by the Court (at the hearing of this matter on 19 February 2024) which documents or materials the applicant thought the Tribunal had failed to consider, the applicant said that he “did not know”. The applicant simply assumed that some materials were not considered because, when his “agent” returned the applicant’s documents to him, there was “one file missing”. As outlined above, there is no evidence in the Court Book or otherwise before the Court to suggest that any additional materials were provided by the applicant or his “agent” to either the Department or to the Tribunal.
The Court is satisfied that the Tribunal considered all of the relevant (albeit limited) materials and information before it.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to properly invite the applicant to attend a hearing before it
The applicant also told the Court that he was not aware of the Tribunal hearing and “no one told him about it” or advised him that he should attend.
Essentially, the applicant appears to claim that he either did not receive the hearing invitation or that he was not properly invited to attend a Tribunal hearing.
The Court disagrees for the reasons that follow.
As outlined by this Court in ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744, the Tribunal is required to invite an applicant to attend a hearing before it pursuant to s 425 of the Act, which relevantly provides as follows:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The Court notes that on 22 February 2023, the Tribunal invited the applicant (via email) to attend a hearing before it on 5 April 2023 (CB 82-90).
Section 425A of the Act sets out the necessary requirements of such an invitation and, relevantly, provides as follows:
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice 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.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
Here, the invitation to attend the hearing:
(a)was addressed to the applicant (CB 83);
(b)clearly indicated the date, time and means by which the applicant could attend that hearing (being on 5 April 2023 at 9.30am (WA time) and providing the applicant with the address for the Tribunal in Perth) (CB 83): s 425A(1) of the Act;
(c)was sent to the applicant via email (a method approved by s 441A(5)(b) of the Act) to the applicant’s nominated email address (as included in his Tribunal review application, CB 66) on 22 February 2023 (CB 82) and, as a result of s 441C(5) of the Act, the applicant was taken to have received the notice at the end of that day: s 425A(2)(a) of the Act;
(d)was given to the applicant 42 days prior to the scheduled hearing, exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) (being 14 days after the day the person receives the notice): s 425A(3) of the Act; and
(e)contained a statement describing the effect of s 426A of the Act and what would happen if the applicant did not attend the hearing (CB 85) and attached an information sheet which also set out that information in further detail (CB 89-90): s 425A(4) of the Act.
For completeness, the Court notes that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter where the invitation was sent via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case at the end of the day it was transmitted), regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36].
The Court also notes that the applicant replied to the Tribunal’s hearing invitation letter by email on 31 March 2023 (CB 91). Attached to the applicant’s email was a completed “Response to hearing invitation” form dated 31 March 2023 (CB 92-94). In that response, the applicant indicated that he would “not participate in the hearing” and consented to the Tribunal “making a decision on the papers without taking further steps to allow [the applicant] to appear” (CB 92).
The Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act and that the applicant was properly invited to attend the hearing.
No jurisdictional error arises in this regard.
Whether the conduct of the applicant’s “agent” amounted to a fraud on the Tribunal
At the hearing of this matter, the applicant appeared to raise concerns about the conduct of his “agent” (being an unknown third party who had assisted him with his visa application and documents). The applicant suggested that he had provided documents to that agent and, when the matter was concluded and the agent returned the documents to him, one of the files was “missing”.
There is no evidence in the Court Book (or otherwise before this Court) to suggest that the applicant had any assistance with his visa application or his review application to the Tribunal. In particular, the Court notes that in his visa application (made on 5 April 2017) the applicant answered “no” when asked if he had “receive[d] assistance in completing [the visa] form” and requested that “[a]ll written communications about [his visa] application” be sent to himself (CB 23).
Further, in his application for review (filed with the Tribunal on 21 September 2017), the applicant answered “no” when asked if he had chosen anyone to represent him in relation to his application (CB 67). The applicant also selected “email” as his “preferred method for receiving correspondence” and provided the Tribunal with what appears to be his own email address for the Tribunal to do so (CB 66).
As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81]), when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with its obligations under Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process.
There is no evidence that this is what occurred in this matter. Here, the applicant seemed to be concerned about documents not being returned to him following the conclusion of his matter. Should that have been the case, whilst the applicant may find it frustrating, this would not have amounted to a fraud on the Tribunal. Further, even if the applicant claimed that his “agent” failed to provide documents to the Tribunal on his behalf (which did not appear to be the case), this would still not amount to a fraud on the Tribunal. Unfortunately for the applicant, negligence or incompetence (while always unacceptable) does not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
It cannot be said, on the material before the Court, that the applicant’s “agent” conducted a “fraud” on the Tribunal.
In the event that the applicant did seek assistance from a registered migration agent (noting that there is no evidence before the Court to suggest that this was the case) and the applicant has concerns about that agent’s conduct, the most appropriate course of action would be for the applicant to raise those concerns with the Office of the Migration Agents Registration Authority.
No jurisdictional error arises in this regard.
Whether the Tribunal’s decision was unreasonable
The applicant also claims that the Tribunal “made an unreasonable decision”.
As this Court explained in Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673, legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision making: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4].
The principles concerning legal unreasonableness were summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
As outlined above, the Court is satisfied that the applicant was properly invited to attend a Tribunal hearing to give evidence and present arguments (CB 82-90). The applicant declined to attend that hearing and, instead, consented to the Tribunal making a decision “on the papers” (CB 92).
The Tribunal identified the applicant’s claims (as set out in the applicant’s visa application) and had regard to the material and evidence before it.
The Tribunal considered that limited information in detail and, as set out above, rejected the applicant’s protection claims in their entirety.
The Court considers the Tribunal’s findings in this matter to be logical and reasonable. It cannot be said that the Tribunal made a decision (or reached a state of satisfaction) that was so lacking a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33].
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review (filed by the applicant on 26 April 2023), Exhibit 2 (being the “submissions” from the applicant provided to the Court prior to the hearing of this matter) and the applicant’s oral submissions before this Court have failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 March 2024
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