BDJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 80
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BDJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 80
File number(s): MLG 554 of 2017 Judgment of: JUDGE EGAN Date of judgment: 15 February 2022 Catchwords: MIGRATION – Application for protection visa – adverse credibility findings based upon inconsistencies and implausibility of applicant’s claims – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss.36(2)(a), (aa), (b) and (c), 5H, 5J, 499 and 91R Cases cited: DUN16 v Minister for Immigration & Anor [2019] FCCA 2951
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 1 February 2022 Date of hearing: 1 February 2022 Applicant: BDJ17 Solicitor for the First Respondent: Mr Orchard Second Respondent: Submitting appearance save as to costs ORDERS
MLG 554 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BDJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
##
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Originating Application for Review filed on 20 March 2017 be dismissed.
3.The Applicant pay the First Respondents costs of and incidental to the Application for review, fixed in the amount of $5,000.00.
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 EGAN:
Introduction
The applicant is a Malaysian citizen who arrived in Australia by aeroplane holding a Visitor visa on 24 October 2014.
On 9 October 2015, the applicant applied for a Protection (subclass 866) visa.
On 30 March 2016, a delegate of the Minister refused to grant the applicant the visa as the applicant did not satisfy the relevant criteria under s. 36(2) of the Migration Act 1958 (Cth) (‘the Act’).
On 31 March 2016, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
On 17 February 2017, the Tribunal affirmed the decision of the delegate.
At [5] and [6] of its reasons, the Tribunal relevantly recorded the criteria which had to be met under s.36(2)(a), (aa), (b) and (c) of the Act for protection obligations to be enlivened in respect of a person claiming that they were relevantly a refugee.
At [7] – [9] of its reasons, the Tribunal recorded what constituted a well founded fear of persecution under ss.5H and 5J of the Act, as well as what constituted the complimentary protection criterion under s.36(2)(aa) of the Act.
At [10] of its reasons, the Tribunal recorded that it had had regard to the policy guidelines contained in Ministerial Direction No. 56 made under s.499 of the Act.
At [12] of its reasons, the tribunal recorded the applicant’s claims for protection as follows:
•“He left Malaysia as he had no money to survive there because he borrowed RM 30,000 (approximately AUD 8,800 at the current exchange rate) from an unlicensed money lender or ‘Along’. He could pay regularly for the first six months but after that he could not pay because the government introduced a GST. He spent too much buying groceries and needed to help his family as well.
•He did full-time work as a bank teller and did a part-time job as well. Due to the Malaysian economy the company he worked for resized, firing all the training staff. He also needed to pay back his study loan. When he had not paid his loan repayment for three months the Along people came to his rental house. His life was saved as he had gone back to his village but they told his friend that he had to pay the loan or they would kill him. Because of that he borrowed money from his friend and ran away to Australia.
•He fears that if he returns he will need to pay what he owes or the Along people will beat him. They can do ‘everything’ until they are satisfied or he has died. He does not have a good job and cannot find money in Malaysia because the Malaysian economy is getting worse day by day.
•He tried to move to Thailand but they can also find him over there.
•He does not think the authorities can help him unless he can pay off his debt.”
Consideration of Grounds of Review By Tribunal
On 20 March 2017, the applicant filed an Originating Application for Review of the decision of the Tribunal. The grounds of review were as follows:
1.The Applicant seeks judicial review of the decision of the Administrative Appeals Tribunal which a decision was made on 15th February 2017 where the Tribunal affirmed the decision of a delegate to cancel the applicant’s protection visa.
2.The Tribunal constructively failed to exercise its jurisdiction.
(i)The Tribunal failed to evaluate whether the detention upon return to Malaysia, amounted to serious or significant harm.
(ii)The Tribunal applied the wrong test, in that s 91R(3) of the Migration Act 1958 (Cth) (the Act) was not in force at the time of the decision of the Tribunal.
(iii)The Tribunal, constructively, failed to perform its function of conducting a review as required by the Act, in that it failed to consider the evidence.
At [39] of its reasons, the Tribunal made adverse credibility findings against the applicant. The Tribunal noted that there were significant discrepancies between the applicant’s written claims for protection and the evidence he gave at the Tribunal hearing. At [40] – [44] inclusive of its reasons, the Tribunal set out at length why it made adverse credibility findings against the applicant. It pointed to inconsistencies and implausibility’s in the applicant’s claims. The Tribunal also relied upon country information as to the impact of a GST being imposed in Malaysia after April 2015. It found as follows:
“[40] The Tribunal does not accept that the applicant borrowed RM 30,000 from an Along which he could not repay and he still owes. This is for the following reasons. In his application the applicant stated that for the first 6 months he could pay regularly, but after that he could not pay. He commented that it started when the Prime Minister introduced a GST which made everything 'so expensive'. He said he spent 'to (sic) much money' to 'buy some groceries' and needed to help his family as well. He indicated at this time he was working full-time in banking as a teller and doing a part-time job at night as well. He said he did not pay his loan for three months and the 'Along people' came to his work place. He indicated he was not there as he had gone back to 'his village' but they told his friend that he needed to pay his loan or they would kill him. He stated that he did not return to his rented home but borrowed some money from a friend and ran away to Australia. At the hearing, however, the applicant indicated that he took the loan from the Along in 2012 or 2013. He said he did not know the terms of the loan (such as duration, interest rate, amount of repayments) because he had an arrangement with the Along that he would not make any repayments until he started working, and the repayments would be sorted out at that time. The applicant was very clear at the hearing that that he did not make any repayments. He suggested that he spent an extended period living with various friends 'like a nomad' in Malaysia to avoid the Along people and that is how he avoided coming to any harm. When the inconsistencies between his written statements and his evidence at the hearing were put to the applicant, he could not offer an explanation other than to say that he planned to repay the money and that he had the money to repay the loan but then could not repay it because the cost of commodities became so high and because he had to pay money to his friends. The Tribunal finds that the applicant cannot explain the inconsistencies in his accounts because he has concocted the claim that he borrowed RM 30,000 from an Along. In this regard the Tribunal also gives weight to the fact that the applicant could not indicate what the agreed duration of the loan, interest rate or quantum of periodic repayments was. The Tribunal does not accept as plausible the applicant's explanation that the Along was happy to advance RM 30,000 to the applicant on the basis that applicant could delay making any repayments until the applicant commenced working, or that he made no repayments from when he claims he took the loan in 2012 or 2013 until he departed Malaysia in October 2014. Nor does the Tribunal consider that the applicant would enter into such a loan agreement without having some idea of the interest rate and/or total amount that he would have to repay and the period over which he would have to repay it. As discussed with the applicant at the hearing, reporting on Alongs in Malaysia indicates that they often deduct an initial repayment from the loan amount advanced, that they charge high to very high rates of interest, they seek to collect repayments regularly (usually on a monthly but sometimes on a daily basis)6, and they commonly harass family members if the borrower fails to make repayments 7. The Tribunal also does not accept the applicant's claims regarding the impact on his capacity to repay the claimed loan of the introduction of a GST in Malaysia. As discussed with the applicant, country information indicates that a GST levied at the rate of 6 per cent was introduced on 1 April 2015 and, while not welcomed by the Malaysian public, it had a marginal impact on the cost of living. Country information confirms that the inflation rate in Malaysia following the introduction of the GST, which replaced some other taxes, did not increase appreciably in 2015, remaining steady for the full year at a modest 2. 7 per cent8. Based on the relevant country information the Tribunal does not accept the applicant's claim that the price of everything went up and it was a big increase. The Tribunal does not accept that cost of living increases from April 2015 would have meant that the applicant, having the money available to repay his claimed debt (as he claimed at the hearing), suddenly found himself in a situation where he could not repay it because the price of commodities increased to such an extent.”
[41] As the Tribunal does not accept that the applicant took a loan of RM 30,000 from an Along the Tribunal does not accept that the applicant was threatened by an Along or an Along's people or that the applicant went into hiding for an extended period to avoid an Along or an Along's people. The applicant stated at question 94 of the Personal details section of Part C of his application that he tried to move to Thailand but they could also find him over there, however, he indicated at question 34 that he never travelled to any other country before he came to Australia. Accordingly, the Tribunal does not accept that the applicant tried to move to Thailand. It also follows that the Tribunal does not accept that an Along or an Along's people have approach the applicant's friends or his mother regarding his whereabouts or that his mother has made arrangements with an Along to repay some of a debt or that the applicant has sent any money to Malaysia to pay part of a debt to an Along.”
Claimed concerns regarding his in-laws
[42] The Tribunal accepts that the applicant married a woman at the Shepparton Mosque in Victoria on 22 November 2015. The applicant claims that he knew this woman before he came to Australia and stated at the hearing that his wife's mother is angry with him because he involved his wife in the MLM business. He commented that they came to Australia to escape this problem. The applicant indicated at the hearing that his wife's father had threatened the applicant not to go near his daughter and had told his daughter that if she married the applicant they would disown her. The applicant said they married in Australia without seeking the blessing of his wife's family. The Tribunal has some concerns with this evidence noting the applicant's comments at the hearing that his wife assisted him to complete his Protection visa application lodged on 9 October 2015 (the month before they married when she was his girlfriend) yet the application makes no mention of her, no mention of the applicant or her being involved in a MLM business and no mention of the applicant being threatened by this woman's father or of them having travelled to Australia to escape problems with his then girlfriend's family. Notwithstanding these concerns and the Tribunal's overall concerns regarding the applicant's credibility, the Tribunal accepts that the applicant's mother and father-in-law do not approve of him. The Tribunal asked the applicant what he thought would happen should he return to Malaysia. He said he was afraid that he would lose his wife as his in-laws would force her to divorce him. The Tribunal notes that the applicant and his wife have now been married for over 14 months since November 2015 and no action has been taken to annual the marriage. The Tribunal put to the applicant that he was legally married and married under Islamic law and that culturally his wife was now part of his family rather than her father's family9. The Tribunal queried the applicant how his wife's family disowning her would put him at risk of serious harm or significant harm. The applicant commented that their life would not be happy or harmonious. The Tribunal accepts that if the applicant returns to Malaysia with his wife his wife's parents may not wish to have a relationship with them and that this may cause his wife and him some distress. However, the applicant has not suggested that his wife's family have threatened to physically harm him or his wife. The Tribunal accepts that the applicant may be saddened if he and his wife are unable to have a relationship with his wife's family, and may feel that his life is less happy and harmonious than it otherwise might be, but does not accept that he faces a real chance of suffering treatment amounting to serious harm or a real risk of suffering treatment amounting to significant harm from his in-laws, should he return to Malaysia now or in the foreseeable future.”
Economic situation in Malaysia
[43] The applicant has claimed that the economic situation in Malaysia is such that he cannot find money in Malaysia because of the state of the economy which he claims is getting worse day by day. He indicates that he has a study loan which he needs to repay, he provides some money for his mother for her needs and that he also borrowed money from friends. The Tribunal notes that the applicant indicated that his father is deceased and his mother and elder sister live in [place omitted] in Kelantan state. He stated at the hearing that his sister is in employment working for a company that manufactures [omitted] The applicant was in employment in Malaysia. He indicated that worked for a bank as a teller, having left employment in the 'supplementary' police to take that role. At the hearing he also indicated that he had several part-time jobs such as working at a fast food outlet and cleaning. He also indicated that he and his wife had been involved in MLM in Malaysia. While the applicant indicated in his statement that the company he worked for in Malaysia was resizing and fired some training staff, he confirmed that he resigned from his employment with a bank in Malaysia, not that he was dismissed. The Tribunal finds that the applicant was readily able to find employment in Malaysia from the time he completed his Diploma in Cooperative Management in 2013. As discussed with the applicant, while it is clear that Malaysia has experienced some economic challenges due to the fall in global oil prices and other factors, the overall economic performance of the country and the economic outlook is positive. While acknowledging that the introduction of the GST in April 2014 was not welcomed by many people, the country information indicates that it had a minimal impact on inflation in the country. In considering economic conditions in Malaysia and the impact of the introduction of a GST in April 2015 the Tribunal has given weight to country information from the Department of Foreign Affairs and Trade10 (and other sources as indicated) that indicates the following:
•Malaysia is classified by the World Bank as an upper middle-income, export-oriented economy. In 2015 its GDP growth was five per cent and per capita GDP was over USD11, 000.
•Economic growth in 2016 is predicted to be 4 to 5 per cent.
•Since independence, Malaysia has transformed from a commodity-based economy, focused on rubber and tin, to a leading producer of electronic parts and electrical products and exporter of palm oil, oil and gas. Manufactured goods made up 76 per cent of Malaysia's exports in 2012. Malaysia is ASEAN's largest energy exporter and the government's largest revenue source comes from the state-owned oil company Petronas. The 2015-2016 drop in oil price has negatively affected government revenues.
•Malaysia's economic growth has led to a significant reduction in poverty with the share of households living below the national poverty line (USD8.50 per day in 2012) falling from over 50 per cent in the 1960s to 0.28 per cent in 2016.
•In December 2015, the Malaysian Department of Statistics reported a labour force participation rate of 67.8 per cent and an unemployment rate of 3.3 per cent.
•A Goods and Service Tax (GST) was introduced on 1 Ap,ril 2015 11 • This was levied at a rate of 6 per cent and replaced Sales Tax and Service Tax.
•Inflation in 2015 was reported to be 2.7 per cent, the same level as 2014 and down from 3.2 per cent in 2013.12
•The introduction of the GST had transitional impacts, such as the increase in the price of many goods and services, but generally this has not been extensive due to the low rate of GST that was introduced. ‘... it was always hard to see how a six per cent GST could have a significant long-term impact on inflation, bring on a recession, or be a showstopper for business…’ Overall it would appear that the GST implementation has been well managed, is generating important revenues and is a success story.”
[44]As discussed with the applicant the Tribunal considers that the relevant country information indicates that the Malaysian economy is performing reasonably well by global standards with moderate economic growth, relatively low unemployment and a modest and largely unchanged annual inflation rate despite the introduction of a 6 per cent GST from 1 April 2015. Based on the country information and the applicant's own account of his employment history in Malaysia the Tribunal does not accept that the applicant faces a real chance of experiencing treatment amounting to serious harm, including as outlined at ss.5J(5)(d) and/or (f) of the Act (that is, the Tribunal does not accept that the applicant has been or will be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist; or that he has suffered or will suffer significant economic hardship in Malaysia that threatens his capacity to subsist}. In considering his circumstances, while the Tribunal does not accept, for the reasons outlined above, that the applicant has a debt to an Along, the Tribunal accepts that the applicant has a Student loan with a bank that he needs to repay and may have borrowed money from friends that he will need to make arrangements to repay, and that he may wish to provide money to his mother to assist her meet her needs. The Tribunal does not accept, however, that the applicant would be denied the capacity to earn a livelihood in Malaysia to enable him to meet these commitments.”
Ground 1 of the Originating Application for Review was a meaningless and erroneous misstatement of the effect of the decision of the Tribunal. The assertion that the Tribunal affirmed the delegate’s decision to cancel the applicant’s protection visa was incorrect. The Tribunal in fact affirmed the decision of the delegate not to grant the relevant visa to the applicant. There is no merit to Ground 1.
As to Ground 2 of the Application for Review, such ground is of three parts.
The first part of Ground 2 was an assertion that the Tribunal failed to evaluate whether detention upon return to Malaysia amounted to serious or significant harm. Such claim was never raised before the Tribunal, nor did any of the documentation before the Tribunal constitute any such claim. The applicant bore the onus of adducing evidence probative of such claim but failed to do so. There was nothing before the Tribunal which warranted any finding in favour of such claim. The Ground is without merit.
The second part of Ground 2 was an assertion that the Tribunal had applied the wrong test ‘ … in that s. 91R(3) of the Migration Act 1958 … was not in force at the time of the decision of the Tribunal.’ Such claim is without merit. First, the Tribunal did apply the correct test when assessing whether protection obligations were owed to the applicant, namely the test as set out in s.5J of the Act. The Tribunal specifically referred to the relevant sections, including s.5J, at [5] – [9] inclusive of its reasons. The Tribunal made no reference to s.91R of the act at all in its reasons. There is no merit to such Ground. The Tribunal found as follows:
“[5]The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
[6]Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
[7]A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s. 5H(1)(b).
[8]Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
[9]If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion'). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.”
The third part of Ground 2 was an un-particularised claim that the Tribunal had ‘ … constructively failed to perform its function of conducting a review as required by the Act, in that it failed to consider the evidence.’ The onus was upon the applicant to particularise the Grounds of Review for the Court’s consideration. The template in this part of Ground 2 did not do so.
This Court has dealt with such un-particularised grounds of review in DUN16 v Minister for Immigration & Anor [2019] FCCA 2951 where, at [4] – [9], it was said as follows:
[4] Notwithstanding, with the greatest of respect, that this Court doubted whether it was a fulfilment of its judicial role, or the performance of a judicial function, for the court to enter upon the endeavour of attempting to elicit from the applicant particulars of the applicant’s case, and then, of necessity, recording such particulars in a coherent form and for the applicant’s benefit, the Court nevertheless attempted to do so, so as to enable the matter to proceed to a final hearing. The Court, in that regard, was concerned that it could be the subject of adverse later criticism, perhaps, for:
a)erroneously appreciating the import of anything said by an applicant in response to the Court’s request for particulars;
b)failing to so formulate, in writing, what was said by the applicant in a way most advantageous to such applicant;
c)not accurately recording some of, or what the Court might have considered an irrelevant part of, the particulars orally provided to the Court by the applicant.
[5] The Court was concerned that, in effect, it was being required to become the applicant’s advocate or adviser, at the risk of assuming all of the attendant responsibilities which that entailed. The Court was also concerned that the exercise would, in a practical sense, leave the Court open to having any subsequent decision it might make in the matter overturned on any number of grounds associated with the process of the Court:
a)advising the applicant as to the inadequacy of the particulars of their grounds for review;
b)asking the applicant to explain what her complaints were concerning the adverse decision she was seeking to review;
c) recording the answers of the applicant to the Court’s questions;
d)evaluating such of the applicant's answers for the purpose of identifying what were or were not legitimate grounds of review;
e)recording, in writing, what the Court considered were the applicant’s legitimate grounds for review.
[6] In the case of Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] inclusive, Beazley JA (with whom Giles and Whealy JJA agreed) said as follows:
“[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:
"A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'."
[310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].
[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.
[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.
[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:
"But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant."
[314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.
[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:
"A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6."
[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”
[7] In DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240, Flick J, sitting on appeal, was there dealing with a contention that a Federal Circuit Court judge had, in that matter, failed to ensure that the hearing was fair, and that the appellant (applicant) did not “suffer a disadvantage from exercising his or her right to be self-represented”. It was further contended that the primary judge “failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court”. The contention was that it was a requirement imposed upon the primary judge to “explain in plain terms to unrepresented litigants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process” and that it is “not enough to merely say that they must demonstrate jurisdictional error”.
[8] When considering the above contentions, Flick J at [37] noted the undesirability of a judge imposing himself upon the proceedings, as an advisor or advocate for an unrepresented party, when His Honour said:
“[37] Although each case must inevitably depend upon its own facts and circumstances, it is to be doubted that a primary Judge is required to explain to an unrepresented party “why the Tribunal’s decision was not made lawfully”. The task imposed upon a Judge at first instance is not to act as an advisor or advocate for the unrepresented party. That contention of the Appellant, expressed in such unqualified terms, is rejected.”
[9] For a judge to not only elicit information from an applicant orally for the purpose of particularising the applicant’s grounds for review, but to then necessarily have to formulate and record the judge’s assessment of what was said orally by the applicant, goes far beyond providing advice to the applicant as to matters of practice and procedure. It blurs the lines between the judge’s duty to remain impartial, and the judge’s duty to ensure a fair hearing. It is this Court’s view that it is not in the interests of justice for a judge to be so integrally involved in the formulation of one party’s case.”
(Footnotes omitted)
By reason of the lack of particularity, the Court is unable to consider the Ground of Review. No attempt has been made to identify what evidence was overlooked, or how the Tribunal failed to perform its function properly. It is not for the Court to guess as to what the applicant’s complaint was, nor was it the role of the Court to act as the applicant’s advocate in that regard.
None of the material before the Tribunal was overlooked before the Tribunal handed down its decision. Nothing in the material provided to the Tribunal not specifically referred to by the Tribunal in its reasons was relevant evidence going to claims for protection. The Ground is without merit.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135] (‘SZMDS’):
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
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[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. 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. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
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[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The Applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Originating Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 15 February 2022
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