BGN17 v Minister for Immigration
[2019] FCCA 961
•15 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGN17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 961 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (subclass 866) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36(2)(b), (c), 424(1), 424A Migration Regulations 1994 (Cth), regs. 1.03, 1.05A, 1.12 |
| Cases cited: DWN027 v The Republic of Nauru [2018] HCA 20 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Minister for Immigration and Citizenship v SZMDS (240) CLR 611 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | BGN17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 594 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 6 September 2018 |
| Date of Last Submission: | 6 September 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 15 April 2019 |
REPRESENTATION
| Counsel for the applicant: | Mr Stoller |
| Solicitors for the applicant: | Lander and Rogers |
| Counsel for the respondents: | Mr Aleksov |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The applicant’s application for judicial review filed on 24 March 2017 and amended on 10 August 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 594 of 2017
| BGN17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By her amended application for judicial review filed 10 August 2018, the applicant sought relief in relation to a decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) dated 15 March 2017.
In its decision, the tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection
(“the Minister”) made on 23 February 2016 refusing to grant the applicant a Protection (subclass 866) visa (“the visa”).
The applicant raises four grounds of review in her amended application which are set out below.
By agreement of the parties, this application for judicial review was heard concurrently with the application for judicial review in proceeding number MLG 595 of 2017: BGO17 v Minister for Immigration and Border Protection and Anor [2019] FCCA 947 (“BGO17”), this application being heard first and BGO17 heard second.
Summary
For the reasons that follow, this application for judicial review fails.
I make the orders as sought by the first respondent.
Background and procedural history
The applicant is a Malaysian citizen who was born on 1 May 1994 in Klang in the Malaysian state of Selagnor. The applicant arrived in Australia on a visitor visa on 2 November 2015 and lodged an application for a protection visa on 9 December 2015.
The applicant claimed to fear harm in Malaysia from a loan shark with whom her parents have had long running difficulties, following her father borrowing money in 2004. The applicant says that her parents have also made a claim for a protection visa which was lodged on 1 May 2015.
The delegate refused the applicant’s application on 23 February 2016 on the basis that effective protection against persecution was available to the applicant in Malaysia.
The tribunal’s reasons
The tribunal’s decision record notes that the applicant attended a scheduled hearing on 2 March 2017 at which she was not represented although she was assisted by an interpreter in Bahasa Malaysian and English languages.[1]
[1] Court book page 108 at paragraph [3].
Relevantly, the tribunal sets out the criteria for a protection visa at paragraphs 4 to 9 of its decision record and its consideration of the applicant’s claims and evidence at paragraphs 11 to 24. At paragraphs
25 to 27, the tribunal sets out relevant country information in particular relating to the Royal Malaysian Police.The tribunal recorded that:
The applicant claims that she has three siblings: three brothers and no sister. She claims that two of her brothers are living with her and her parents in Australia, while the eldest brother was living and working in Malaysia.[2]
[2] Court book page 109 at paragraph [14].
In addition, the tribunal recorded that:
The applicant claimed at the time of visa application for a protection visa and at the scheduled hearing that her mother and her father were currently living in Australia while their protection visa was being processed. The applicant also claimed that two of her brothers were waiting for their protection visa to be processed.[3]
[3] Court book page 110 at paragraph [23].
The tribunal then dealt with its findings at paragraph 28 to 68 and set out its conclusions at 69 to 72. The tribunal’s decision to affirm the delegate’s decision is set out in paragraph 73.
Importantly, the tribunal discusses its credibility findings at paragraphs 30 to 60. I will refer to these findings in greater detail below.
It is evident from the affidavit of Edward Smith affirmed 10 August 2018 that on the same day that the tribunal considered the applicant’s application for judicial review, they also considered and determined the application for judicial review of the applicant’s parents[4] and the applicant’s brother[5]. Although the tribunal decided each of these matters on the same day, it dealt with each of them separately and gave separate reasons for decision in each matter.
[4] Annexure ES-1 to the affidavit of Edward Smith affirmed and filed 10 August 2018.
[5] Annexure ES-3 to the affidavit of Edward Smith affirmed and filed 10 August 2018.
It is also common ground that an application for judicial review was filed in respect of the tribunal’s decision in the applicant’s parents’ case and, orders were made by her Honour Judge Riley, by consent of the parties quashing the tribunal’s decision and remitting the matter back before the tribunal.[6]
[6] Annexure ES-2 to the affidavit of Edward Smith affirmed and filed 10 August 2018.
The orders made by her Honour Judge Riley also contained a notation in the following terms:
The first respondent accepts that the second respondent fell into jurisdictional error by failing to comply with s.426(3) of the Migration Act 1958 by failing to have regard to the applicants’ request for the second respondent to call a witness (“Witness 2”) specified in the completed response to hearing form dated 9 October 2016 (“form”). The Tribunal took evidence from “Witness 1” listed on the form, however it did not have regard to the applicants’ request for the second respondent to obtain evidence from “Witness 2” listed on the form.[7]
[7] Annexure ES-2 to the affidavit of Edward Smith affirmed and filed 10 August 2018.
Ground one
The first ground of review in the application is:
The Tribunal failed to discharge its statutory role, in that it failed to exercise its jurisdiction to review the decision before it.
Particulars
(a)The Tribunal’s decision to affirm the delegate’s decision was predominantly based on what it termed its ‘Credibility Findings’, which were set out from [30] to [60].
(b)The Tribunal’s purported consideration of the Applicant’s credibility concluded, from [58] to [60], with what it terms ‘cumulative findings’. Paragraph [58] provides:
Having the considered [sic] all the accepted personal circumstances of the applicant and the relevant available country information, the Tribunal does not accept that the applicant has a real chance of serious harm on return to Malaysia arising from any of his parents owing money to an unlicensed money lender, based on his ethnicity, his religion or his status as a young man or a combination of these characteristics or any other reasons outlines in s5j(1)(a), now or into the foreseeable future. (emphasis added)
(c)At the time of the Tribunal hearing, the Applicant was a 22 year old woman.
(d)Paragraph [58], setting out the ‘cumulative effect’ of the Tribunal’s ‘credibility findings’ is copied verbatim from the reasons for decision by the Tribunal in the application for review made by the Applicant’s brother.
(e)In any event, whichever applicant’s credibility is being considered by the Tribunal in this critical section of its reasons, it is not the Applicant’s.
(f)Thus, while purporting to review the delegate’s decision to refuse the Applicant’s visa application – the Tribunal Instead reviewed the circumstances of someone other than the Applicant, assessed that other person’s credibility, found that other person to lack credibility, therefore found that other person did not have a well-founded fear of persecution, and affirmed the delegate’s decision in relation to the Applicant. In doing so, it abdicated its task of reviewing the actual decision before it.
It was submitted on behalf of the applicant that the tribunal failed in its statutory task to consider the applicant’s claims. It was said that the tribunal’s reasons, in which it affirmed the delegate’s decision under review, were incoherent in places and contained large sections copied from the tribunal’s considerations for the applicant’s brother.[8]
[8] Paragraph 9 of the applicant’s written submissions filed 10 August 2018.
In particular, it was said in support of this ground that the tribunal identified a number of “credibility concerns” which formed the basis of various subsequent adverse findings. These credibility concerns are as follows:
a)if the applicant’s parents held genuine concerns for their safety, they may have moved more than four or five time over a ten year period, or may have relocated further away;[9]
b)the applicant’s parents’ occupations which would have made them easy to identify and locate;[10]
c)the travel history of the applicant and her family;[11] and
d)the applicant’s brother remains living in Malaysia.[12]
[9] Court book page 113 at paragraph [42].
[10] Court book pages 113 to 114 at paragraph [43].
[11] Court book page 114 at paragraph [44].
[12] Court book page 114 at paragraph [45].
The applicant then claimed that the tribunal addressed a number of other ‘credibility issues’ regarding the claim that the applicant’s parents had made a police report in the days prior to their departure and that the police advised the applicant’s parents to depart Malaysia. The applicant suggested that paragraph 47 of the tribunal’s decision record contained contradictory findings in relation to this.
On the one hand, it was submitted that the tribunal did not accept the applicant’s claim that her parents lodged a police complaint prior to departing Malaysia in which they were told to leave Malaysia.
On the other, it was said that, “the Tribunal accepted that a police report was submitted to the Tribunal outlining her parent’s complaint and it was this encounter with the police which was the triggering impetus for their departure.”[13]
[13] Court book page 115 at paragraph [47].
The applicant then referred to the tribunal’s findings at 49 as further evidence of inconsistent and contradictory findings in relation to:
a)whether the applicant’s parents had filed a police report prior to their departure from Malaysia; and
b)if so, whether this resulted in the family being advised to leave Malaysia for their own safety.
In response to a question as to why the applicant’s parents had not made a police report earlier, the applicant said, “since recently discovering her parents living in Selangor that the situation was much worse than it had been previously been”[14]. It was submitted on behalf of the applicant that although this was noted by the tribunal, it was not dealt with by the tribunal.
[14] Court book page 115 at paragraph [48].
At the end of the credibility concerns section, the applicant pointed to the findings made under the heading “Cumulative Findings” as the principal basis for ground one. In particular, the applicant relied upon paragraph 58 which, as stated above, referred to the applicant using the male pronoun and as a “young man”.
It clearly appears that this paragraph is copied verbatim from the tribunal’s reasons in the decision relating to the applicant’s brother.
It was argued that in copying credibility findings from reasons for decision in another matter, the tribunal in effect abdicated its task and failed to give active consideration to the merits of the applicant’s particular application.
It was further submitted that in considering this matter, paragraph 58 was crucial as it “ties together the ‘credibility findings’ set out from [30] to [57]”.[15] Moreover, it was said that paragraph 58 is the only part of the tribunal’s reasons in which the tribunal considered the central question of whether the applicant faces a real chance of serious harm. Similarly, it was submitted that to the extent that the tribunal considers the complementary protection criteria, it does so only at paragraph 60 which “follows on from and relies on, the conclusions the Tribunal purports to reach at [58]”.[16]
[15] Paragraph 25 of the applicant’s written submissions filed 10 August 2018.
[16] Paragraph 27 of the applicant’s written submissions filed 10 August 2018.
In support of this proposition, the applicant relied upon the Federal Court decision in WAFK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1293 (“WAFK”) in which French J considered the effect of a tribunal borrowing from the text of an earlier tribunal decision or earlier common source material. French J said:
While each case must turn upon its own circumstances, I am not satisfied that the mere fact of the use of common form text in relation to statements of general principle, general conclusions about country information and even findings of credibility in similar cases is necessarily indicative of jurisdictional error. It is, of course, in the latter area, that is to say findings of credibility in the particular case, that the Tribunal should be at pains to make it clear that it has given careful consideration to the detail of the application which it is required by the Act to review. I do not consider that resort by the Tribunal to common form texts for the purpose of findings of credibility in respect of a particular applicant is desirable. However, in this case the use of that text was sufficiently modified by reference to the particular circumstances of the appellant’s claims to indicate that the Tribunal was giving consideration to the appellant’s case.[17]
[17] WAFK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1293 at [52].
The applicant also relied upon MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 (“MZZZW”) where the Full Court considered the decision in WAFK and noted that the passage excerpted above:
Discloses two matters of significance for the approach we adopt. First, as French J observed, each case turns on its own circumstances, which is as it must be where the subject matter of the inference is whether a decision-maker has brought an independent mind to the determination of the review. Second, his Honour made it clear that the copying of credibility passages is of most concern. With the greatest of respect to his Honour, we would characterise the matter as more than “[un]desirable”. It is an abdication of the Tribunal’s task.[18]
[18] MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [43].
In response, the Minister argued that whilst it is conceded that the tribunal used the incorrect pronoun in paragraph 58 of its reasons, this does not of itself demonstrate a failure by the tribunal to perform a review as required by the Migration Act 1958 (Cth) (“the Act”).
It was further submitted on behalf of the Minister that the present case is “vastly removed from that in MZZZW…”[19] and in applying the principles outlined in Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”), the premise of the applicant’s case is not made out when the tribunal’s reasons are read as a whole.
[19] Paragraph 8 of the Minister’s written submissions filed 27 August 2018.
Given the issues raised in this application, it is necessary to say something about the context in which the decision in MZZZW was made. In that case:
a)the applicant and his older brother had each applied for a protection visa following their arrival in Australia in 2012;
b)the same delegate of the first respondent considered and refused both applications on 14 December 2012;
c)both the applicant and his brother sought a review by the Refugee Review Tribunal, as it then was;
d)the applicant and his brother each appeared before the tribunal constituted by Member Corrigan. In separate decisions, Member Corrigan affirmed the delegate’s decisions to refuse the applicant and his brother protection visas;
e)an application for judicial review was made by the applicant and by consent, the decision of Member Corrigan was set aside on the basis of jurisdictional error and the matter was remitted to the tribunal differently constituted, for determination according to law;
f)on remittal the tribunal, constituted by Member Boddison again affirmed the delegate’s decision; and
g)an application for judicial review was made to the Federal Circuit Court and was dismissed. The applicant sought leave to appeal to the Full Court of the Federal Court which was granted.
In MZZZW, the Full Court of the Federal Court noted that:
Many passages in the Tribunal’s decision record were identical (or identical but for syntactical modifications) to passages in the earlier Tribunal decision record of Member Corrigan, which had been set aside… This feature forms the underlying subject matter of the grounds of appeal before us.[20]
[20] MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [17].
Relevantly, the Full Court said:
The Minister correctly submits that in each case it will be necessary to examine not only the extent of the copying, but its nature, context and degree…the Court must decide whether it is satisfied that the Tribunal brought its own independent mind to bear on what would be the correct or preferable decision on the review.[21]
[21] MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [31].
The Full Court referred to but distinguished WAFK for the following reasons:
First, most of the copying in WAFK concerned country information. The part concerning the appellant… was very small (some six small sentences), was not all identical, was not anywhere near the kind of wholesale adoption which has occurred in the present appeal... Where the same text on a credibility finding was used… it was quite generally expressed. Second, what was copied was not prior opinions of another Tribunal member about the individual claims of the same applicant.[22]
[22] MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [44].
As noted by the Full Court in MZZZW:
…the terms of s421 of the Act make it plain that the task is discharged by a specific member of the Tribunal who is constituted to deal with that review… the statutory task is intended by Parliament to be performed by a particular member to whom that task is allocated. It is non-delegable. It is not to be performed by adopting the views of a differently constituted tribunal about the same applicant.[23]
[23] MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [57].
Ultimately, the Full Court was not satisfied in MZZZW, that Member Boddison had brought an independent mind to the consideration of the applicant’s claim as required by the Act.
In my view, this case is a very different one to that in MZZZW. In this case, the same member considered three claims: the parents’ claim, the applicant’s claim and the applicant’s brother’s claim.
It is clear from a fair reading of the tribunal’s reasons in the sense contemplated in Wu Shan Liang that the tribunal considered the applicant’s claim and its credibility concerns arose from the applicant’s evidence. So much is clear from the following:
a)The references to the applicant’s background in paragraph 35 of its reasons are clearly a reference to this applicant and not to any other person. Not only is the female pronoun appropriately used but there is also a reference to the fact that the applicant has completed a diploma in physiotherapy and has worked as a physiotherapist, information which was particular to the applicant.
b)The tribunal referred to the fact that the applicant has been consistent in ‘her’ claims and refers to ‘her’ evidence which was a clear reference to the applicant in this case.[24]
[24] Court book page 112 at paragraph [36].
c)The tribunal set out the applicant’s history in Malaysia since 2004 which indicates a clear reference to the applicant. In particular, the tribunal referred to the fact that the applicant was 10 years of age at the time of the incident in 2004 and was then asked to live with her maternal aunt in another part of Malaysia.[25]
[25] Court book page 112 at paragraph [37].
d)The tribunal assessed the “applicant to have been a reliable and credible witness but overwhelming (sic) her limited and vague claims were derivative on the second hand accounts of her mother and father whose claims for protection were made in a separate application (emphasis added).”[26]
[26] Court book page 113 at paragraph [38].
e)The tribunal discussed its assessment of the applicant’s memories of the incident in 2004.[27]
[27] Court book page 113 at paragraph [39].
f)The tribunal then set out its credibility concerns about the applicant’s evidence at paragraphs 42 to 45. It is clear that in each of these paragraphs, the tribunal considered and referred to the applicant’s claims.
g)The tribunal accepted that it was plausible that a home invasion incident occurred in 2004 and that there were outstanding debts owed by the applicant’s parents. The tribunal also accepted that this in part explained the applicant’s relocation to her aunt’s home in 2004. However, it was not satisfied having regard to the credibility concerns it had identified and the evidence relating to the applicant’s and her family’s residential work and travel history in the 10 year period since that incident, that:
…any of the family members acted… to have commensurately avoided the grave threats of harm arising from a loan shark, as claimed, by either significantly and urgently relocating within Malaysia or departing Malaysia altogether at a point considerably earlier than 2015.[28]
h)Importantly, the tribunal made the following comment regarding the police report made by the applicant’s parents just before they departed Malaysia:
The country information strongly indicates the practice of unlicensed money lending was subject of police investigations and prosecutions across Malaysia and that it would be unlikely that the police would not further investigate complaints against ah long activities or loan sharks of any ethnicity anywhere throughout Malaysia or to be recommended to complainants to depart Malaysia for their safety. The information also invites the Tribunal to consider that the police complaint raised by the applicant, while actually generated, was done so for migration purposes and not because they had a long standing fear of an ah long since around 2004 (emphasis added).[29]
i)The tribunal concluded that the police report submitted by the applicant’s parents was submitted for migration purposes and not because of any genuine fear on their part. Moreover, the tribunal did not accept that the police advised the applicant’s parents to depart Malaysia for their safety and the safety of their children, including the applicant, and it, “did not accept that the actual triggering event of the applicant or any of her family member’s departure for Australia was related to any outstanding debts”.[30]
j)It is clear that the tribunal is referring to the applicant in this case given the reference to her returning to Malaysia as a “single woman” or a “single Muslim woman”.[31]
[28] Court book page 114 at paragraph [46].
[29] Court book page 114 at paragraph [46].
[30] Court book page 115 at paragraph [49].
[31] Court book page 116 at paragraph [56].
It is against this background and detail in the tribunal’s decision record that the tribunal’s findings in paragraph 58 must be read.
When read in its entirety, the reasoning in MZZZW does not apply. It is clear that the tribunal member in this instance gave active consideration to the applicant’s claims before it and in doing so, discharged their statutory duty. The use of the same wording in paragraph 58 with the reasons for decision relating to the applicant’s brother does not evidence a failure by the tribunal.
A similar analysis applies to the tribunal’s reasoning in paragraph 60. Paragraph 60 must be read in the context of the tribunal’s more detailed analysis from paragraphs 30 to 57.
In those circumstances and for these reasons, ground one is not made out.
Ground two
The second ground of review is:
The Tribunal erred in misconstruing and misapplying the statutory test in ss 36(2)(b) and 36(2)(c) of the Migration Act 1958 (the Act), and thereby misconceived the extent of its powers.
Particulars
(a)From [61] – [68], the Tribunal purported to consider whether the Applicant is a ‘member of the same family unit’ as her parents, who are applicants for protection visas, in order to assess whether the Applicant satisfied the criteria in ss 36(2)(b) and (c).
(b)In doing so, the Tribunal failed to correctly identify or apply the law governing the exercise of its power, and misconceived the extent of its power:
(i)First, the Tribunal failed to correctly identify the provisions governing the definitions of ‘member of the same family unit’ in the Migration Regulations 1994 – erroneously considered that its power to decide whether the Applicant was a member of the same family unit as her parents was governed by regulations 1.12(4); [65]; [66] and 1.21:[67], neither of which were applicable to the Applicant’s application.
(ii)Secondly, in its consideration of whether the Applicant is the ‘dependent child’ of her parents, the Tribunal erred in considering that the Migration Regulations 1958 compelled the conclusion that because the Applicant is over 18, she is not a ‘child’ and thus cannot be a ‘dependent child’; at [65]. The Tribunal thereby misconceived its power to assess whether the Applicant is a ‘dependent child’; at [65]. The Tribunal therefore misconceived its power to assess whether the Applicant is a ‘dependent child’, erroneously considering that it had no power to find that an adult is a ‘dependent child’.
(iii)Thirdly, in its consideration of whether the Applicant is a ‘relative’ of her parents, the Tribunal that she was not financially dependent on her parents because she has the ‘capacity to find work and earn money in her own right’; [66]. That is, the Tribunal erroneously considered its powers to determine financial dependence were limited to a consideration of whether the Applicant could be financially independent from her parents, when the Tribunal was required to consider whether the Applicant was in fact financially dependent on them.
(iv)Fourthly, and in any event, the dispositive consideration upon which the Tribunal found that the Applicant was not dependent on her parents as their ‘relative’ was its conclusion that she was ‘not usually resident in the family head’s house’; [66]. This finding is irrelevant to the question the Tribunal ought to have been addressing: whether the Applicant is the dependent child of her parents.
It was submitted on behalf of the applicant that in considering whether the applicant was a “member of the same family unit” as her parents in order to determine whether she satisfied the criteria in sections 36(2)(b) and (c), the tribunal had to consider whether the applicant “was a member of the same family unit”.[32] In doing so however, it was argued that the tribunal failed to apply the correct legal test.
[32] Paragraph 38 of the applicant’s written submissions filed 10 August 2018.
The tribunal relevantly stated:
The Tribunal accepts that the applicant has an interest in her parents claiming to be a member of the same family unit as her. If protection visas were granted to one of her parents on the basis that they are owed Australia’s protection visa obligations and that the applicant is found to be a member of the same family unit by satisfying regulation 1.12 of the Regulations, the Tribunal is obliged to consider that this application under review be remitted for reconsideration on the basis that the applicant satisfied s36(2)(b) or s 36(2)(c).[33]
[33] Court book page 117 at paragraph [62].
Section 36(2)(b) of the Act relevantly provides:
A criterion for a protection visa is that the applicant for the visa is:
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
Section 36(2)(c) of the Act relevantly provides:
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
The term “member of the family unit” is defined in the Act as “a person has the meaning given by the regulations made for the purposes of this definition”.[34]
[34] Migration Act 1958 (Cth), section 5.
It is not in dispute that the tribunal applied regulation 1.12 as it stood on 15 March 2017 which, by reason of Item 5704 of the Migration Regulations 1994 (“the Regulations”), was not the correct version of that regulation.
The correct version of regulation 1.12 which should have been applied to the applicant’s claim relevantly provided:
(1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulation (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a)…
(b)A dependent child of the family head or of a spouse or de facto partner of the family head; or
(c)A relative of the family head or of a spouse or de facto partner of the family head who:
(i) Does not have a spouse or de facto partner; and
(ii) Is usually resident in the family head’s household; and
(iii) Is dependent on the family head.
(2)…
(3)…
“Dependent child” is defined in regulation 1.03 in the following terms:
Dependent child of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) being a child or step-child who:
(a)Has not turned 18; or
(b)Has turned 18 and:
(i)Is dependent on that person; or
(ii)Is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.
Relevantly, regulation 1.05A(2) then in turn provides:
A person (the first person) is dependent on another person for the purposes of an application for:
(d) a protection visa: or
…
(ea) a Refugee and Humanitarian (Class XB) visa; or
…
(i)A Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.
It appears to be common ground that although there were some changes to regulation 1.12 which came into effect on 19 November 2016, there were no changes to either the definition of “dependent child” in regulation 1.03 or regulation 1.05A.
It was argued on behalf of the applicant that in concluding that she was not a dependent child of the family head being older than 18 years, the tribunal failed to apply the proper test as it failed to consider whether the applicant fell within paragraph (b)(ii) of the definition of “dependent child”. In doing so, it was alleged that the tribunal did not discharge its statutory task.
To the extent that the tribunal considered the issue of “dependence” in purporting to assess whether the applicant was a “relative” of her parents, it was submitted on behalf of the applicant that, “the Tribunal applied a different, and more onerous test, to that applicable for determining whether someone is a ‘dependent child”.[35] It was further submitted that the tribunal found that the applicant was not usually resident in the family head’s house and:
…this finding is critical to the wrong question: whether a person is dependent on a ‘relative’ (per reg 1.12(c)) but is irrelevant to the question the Tribunal ought to have been addressing: whether the Applicant is the dependent child of her parents.[36]
[35] Paragraph 40 of the applicant’s written submissions filed 10 August 2018.
[36] Paragraph 40 of the applicant’s written submissions filed 10 August 2018.
The question is whether the error in applying the incorrect version of regulation 1.12 or the failure to consider whether the applicant fell within the definition of “dependent child” notwithstanding her being over the age of 18 years was sufficiently material to support a finding of jurisdictional error. It was argued on behalf of the Minister that it did not.
In the recent case of Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (“Hossain”), the High Court considered the issue of what constitutes the necessary materiality to support a finding that an error is a jurisdictional error. In Hossain, Kiefel CJ, Gageler J and Keane J relevantly noted:
The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.[37]
[37] Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [27].
Their Honours went on to say:
… the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made.
…
Ordinarily… breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.[38]
[38] Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [30]–[31].
In Hossain, it was held that although the tribunal made an error in misapplying the criterion which related to the timing of the making of the application, this error did not “rise to the level of jurisdictional error” because the tribunal also found that the public interest criterion was not met and this finding alone required the tribunal to affirm the delegate’s decision.[39]
[39] Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [35], [37].
In the present case before this court, the tribunal applied the incorrect point in time version of regulation 1.12. Moreover, it incorrectly concluded that the applicant was not a dependent child because the applicant was over 18, without considering paragraph (b) of the definition of dependent child. However, the tribunal did consider the question of whether the applicant was a dependent relative of her parents and, in doing so, made the following findings:
a)the applicant did not claim to have any disabilities;
b)the applicant has a diploma in physiotherapy and therefore the capacity to find employment and earn money in her own right;
c)the applicant has not lived with her parents since 2005; and
d)as an adult, the applicant had obtained paid employment in Malaysia.[40]
[40] Court book pages 117 to 118 at paragraph [66].
The tribunal went on to conclude that:
…the applicant is not wholly or substantially emotionally, psychologically, financially or any in manner (sic) dependent upon her biological mother and her biological father and is not usually resident in the family head’s house.[41]
[41] Court book pages 117 to 118 at paragraph [66].
The tribunal’s factual findings set out at paragraph 64.a) to 64.d) above and its conclusion at paragraph 65 above would have precluded a finding by the tribunal that the applicant was a dependent child of her parents, even under the extended definition. That is, the factual findings which led the tribunal to conclude that the applicant was not a “dependent of the family head” would have precluded the tribunal from making a finding that the applicant was a “dependent child”.
The manner of determining “dependence” for the purpose of both categories of persons; i.e. child or dependent relative, is the same irrespective of whether the tribunal is to consider whether the applicant was a dependent child over 18 or a dependent relative. In either case, the tribunal found that the applicant was not dependent of her father or mother.
For these reasons, I find that the errors made do not amount to jurisdictional error in this instance.
Moreover, it was argued that in any event, the tribunal misunderstood and misapplied regulation 1.05A insofar as it relied upon the applicant’s “capacity to find work and earn money in her own right” rather than whether the applicant was, as a matter of fact, dependent upon her parents.[42]
[42] Paragraph 41 of the applicant’s written submissions
In support of this proposition, the applicant argued that regulation 1.05A requires that the tribunal consider the applicant’s actual situation rather than whether she had the capacity to support herself.[43] In assessing the applicant’s “capacity” to work and financially support herself, it was said that the tribunal asked itself the wrong question.
[43] Paragraph 41 of the applicant’s written submissions filed 10 August 2018.
The definition of a “dependant” in regulation 1.05A requires that a person is “wholly or substantially reliant on the other person for financial, psychological or physical support”. The term “reliance” is defined in the Macquarie Dictionary as “the condition of someone who relies”. In turn, “rely” is defined as “to depend confidently on; to put trust in”.
It was conceded by counsel for the Minister that the Full Court of the Federal Court decision in Huynh & Ors v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] FCAFC 122 (“Huynh”) stands for the proposition that necessity is not a touchstone or test for “reliance” in the context of regulation 1.03 or 1.05A. In Huynh, Lander and Rares JJ relevantly said:
In our opinion, the words of the regulations, on their proper construction, do not carry with them any implication of there being a necessity to provide the relevant support by the parent for the child to qualify as “a dependent child”.[44]
[44] Huynh & Ors v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] FCAFC 122 at [39].
Besanko J agreed with this view and relevantly noted:
I do not think that, under the present regulations, there is a requirement to prove a need to rely in addition to the fact of reliance. A number of matters must be established before reliance in fact for the purpose of the present regulations is made out.[45]
[45] Huynh & Ors v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] FCAFC 122 at [52].
The essence of the applicant’s argument is that the tribunal made the same error as that made in Huynh; namely, it incorrectly applied a concept of necessity in determining whether or not the applicant was a dependant of her parents.
In this instance, the Minister did not advance the argument which was rejected in Huynh; namely that the regulation imports a strict notion of necessity and any need which arises from a choice made by the applicant does not fall within the regulation. Rather, the argument advanced by the Minister in this case was slightly more nuanced. The Minister acknowledged that there is some level of circularity when one considers whether a person is “wholly or substantially reliant on the other person for financial, psychological or physical support”.
However, I agree that it could not be said that a person is reliant on another person for this type of support if the first person has no need, in the sense of requirement, for that support. To this extent, reliance incorporates a sense of need or requirement. In considering whether the applicant had such a need, whether as a result of choices made or otherwise, it was, in my view, entirely appropriate for the tribunal to have regard to the applicant’s prior residential history, qualifications and work history.
I therefore do not accept that the tribunal’s findings that the applicant was not usually resident in the family head’s home evidences any error. The fact that the applicant had been effectively living independently of her parents in Malaysia since she was a child, was a relevant, if not determinative, factor in considering whether she was wholly or substantially reliant upon them for financial, psychological or physical support.
Ultimately, I find that the conclusion reached by the tribunal that the applicant was not wholly or substantially reliant upon her parents for financial, psychological or physical support was a factual finding which was open for it to make on the material before it.
For each of these reasons, ground two is not made out.
Ground three
The third ground of review is:
The Tribunal failed to have regard to a relevant consideration, namely information obtained by it under s 424 of the Act.
Particulars
(a)The Tribunal obtained information under s 424 of the Act, namely:
(i)The Applicant’s parents’ application for a protection visa; and
(ii)The Applicant’s parents’ application for review of the delegate’s decision to refuse their protection visa application, including documents submitted to the Tribunal by the Applicant’s parents, and notes of evidence given by the Applicant’s parents and aunt during the Tribunal hearing in that review.
(b)Despite getting that information, the Tribunal failed to have regard to:
(i)The evidence given by the Applicant’s parents in their application and at hearing, including:
1. Evidence given by the Applicant’s mother that she had moved her tailoring business between 2009 and 2015 to avoid detection;
2. Evidence given by the Applicant’s father that he borrowed money from an unlicensed money lender of Chinese origin, that he had difficulties paying that amount historically, and that he had been threatened and physically assaulted in the past;
3. Evidence from the Applicant’s parents that they believed the threat from the money lenders had subsided between 2004 and 2015, before re-emerging in 2015 – namely that they believed the unlicensed money lenders had forgotten about the Applicant’s fathers debts during that time.
(ii)The Applicant’s parents’ request for the Tribunal to call a witness specified in the completed response to hearing form filed by the Applicant’s parents with the Tribunal in that review, and the fact that the Tribunal had made a jurisdictional error in failing to comply with that request, contrary to s 426(3) of the Act.
Section 424(1) of the Act provides:
In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
In “having regard to” relevant information, it is necessary for the tribunal to engage in ‘‘an active intellectual process’ in which each of the prescribed circumstances receives (the Tribunal’s) “genuine” consideration”.[46]
[46] Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 218 at [57]; see also SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 at [49]–[52] and DZADQ v Minister for Immigration and Border Protection (2014) 143 ALD 659 at [42]–[44].
In essence, the applicant’s argument in relation to ground three was that although the tribunal stated that it had regard to the applicant’s parents’ application to review the decision to refuse their protection visa application and associated documents, the tribunal failed to have regard to the evidence set out in paragraph (b)(i)(1), (2) and (3) of this ground.
Moreover, it was argued for the applicant that the parent’s request to call a second witness to give evidence was “information” within the meaning of section 424 of the Act, information which the tribunal did not have regard to.[47] In failing to have regard to this information in the sense required, it was argued that the tribunal committed a jurisdictional error.[48]
[47] Transcript page 16 at lines 22 to 27.
[48] Paragraphs 45 to 47 of the applicant’s written submissions filed 10 August 2018.
As noted above, there is no dispute that on the same day, the same tribunal member considered not only the applicant’s application for review, but also that of the applicant’s parents and that of the applicant’s brother.
It is clear from the terms of paragraph 42 of its reasons, the tribunal did consider the information before it in relation to the parent’s residential history and that of other members of the applicant’s family.
It was further submitted that whilst the tribunal accepted that the applicant’s claim was derivative of her parent’s claims, it “failed to consider… the way the parents’ claim was put which was that… their fear of persecution was ameliorated between 2004 and 2015 by the steps they took, and re-emerged at that point, at a point of crisis.”[49]
[49] Transcript page 17 at lines 31 to 35.
A fair reading of that paragraph in the sense contemplated in Wu Shan Liang does not support the applicant’s proposition in ground three. For example, the tribunal made the following comments:
… the Tribunal raised with the applicant the residential history of the applicant’s parents as it was outlined in their application during the scheduled hearing.[50]
[50] Court book page 113 at paragraph [42].
The tribunal then went on to consider that evidence and draw some conclusions on the basis of that evidence. It clearly gave genuine consideration to those matters. Specifically, the tribunal referred to the evidence given about:
a)the mother moving around in reference to her tailoring business;[51]
b)the incident in 2004 in which the loan sharks came to the family home and assaulted her father[52] and accepted that this incident did occur;[53] and
c)the incident in 2015 which it was said led to the parents filing a police report and triggered their decision to come to Australia.[54]
[51] Court book page 113 at paragraph [42].
[52] Court book page 112 at paragraph [37].
[53] Court book page 113 at paragraph [39] and page 114 at paragraph [46].
[54] Court book pages 114 to 115 at paragraphs [47] to [51].
Although the tribunal does not expressly refer to the evidence given by the parents in relation to each of these issues, it is evident that the tribunal had regard to the parents’ applications and put certain matters arising from those applications to the applicant.[55]
[55] Court book page 113 at paragraph [42].
A fair reading of the tribunal’s reasons discloses that the tribunal did have regard to the parents’ applications and evidence. Ultimately, the tribunal did not accept that evidence. That was a conclusion open to them to make.
I do not accept the applicant’s submission that the applicant’s parents’ request to call a witness was “information” to which the tribunal ought to have regard under section 424 of the Act. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, in considering what constituted “information” for the purposes of section 424A, the High Court said:
However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.[56]
[56] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].
I am not satisfied that a request by the applicant’s parents to interview a particular person was “information” and therefore section 424A was not engaged in respect of that request.
The applicant in this case did not request that the tribunal take evidence from that witness. Nor can it be said that the tribunal’s jurisdictional error in the parent’s case gives rise to a finding that the tribunal failed to have regard to that evidence for the purposes of section 424(1) of the Act. As noted above, section 424(1) only requires the tribunal to have regard to information which it actually has obtained. There is no obligation on the tribunal to have obtained information from the second witness nominated by the applicant’s parents in the context of its consideration of the applicant’s case (as opposed to the consideration of the applicant’s parent’s case). Moreover, section 424(1) was not engaged as the tribunal did not have that information before it at the time that it considered the applicant’s application.
For each of these reasons, ground three is not made out.
Ground four
The fourth ground of review is:
The Tribunal:
a.constructively failed to exercise its jurisdiction, by failing to consider, properly or at all, the Applicant’s claim that her fear of harm manifested, or worsened, in 2015; and/or
b.reached a finding and/or drew a conclusion, critical to its ultimate determination, that was illogical or irrational.
Particulars
(a)At [46], within its long consideration of what it termed ‘credibility findings’ the Tribunal concluded:
Given the Tribunal accepts that there was a home-invasion incident in 2004 with men speaking Malay with a Chinese accent, the Tribunal has considered it plausible that there were outstanding debts from the past and it did partially explain the relocation of [(the applicant)] to her aunt’s home in 2004. However taking all the Tribunal’s credibility concerns the applicant’s written and oral evidence about her and her family’s residential, work and travel into account, the behaviour outlined above, cumulatively considered over a ten year period, does not demonstrate to the Tribunal that any of the family members acted, either voluntarily or on the advice of an elder, to have commensurately avoided the grave threats of harm arising from a loan shark, as claimed, by either significantly and urgently relocating within Malaysia or departing Malaysia altogether at a point considerably earlier than 2015. Accordingly, the residential, travel and work histories of the applicant, the applicant’s parents and her siblings do not plausibly or credibly indicate to the Tribunal that they had an actual or well-founded fear of a loan shark at the time of departure for Australia… In this regard, the applicant has invited the Tribunal to consider other credibility concerns about her claims (emphasis in original).
(b)In reaching the underlined conclusion, the Tribunal is attempting to reason that:
(i)Based on its ‘credibility concerns’ over the period 2004 to 2014, the Applicant and her family did not act ‘commensurately’ with the way people might reasonably be expected to act, if faced with grave threats;
(ii)Therefore, it was not plausible or credible that the Applicant and her family faced grave threats when they fled to Australia in 2015.
(c)The Applicant did not make her claim on the basis that she had a well-founded fear of persecution at all times between 2004 and 2015 – she made her claim on the basis that the situation was worse in 2015 than earlier – and that her well-founded fear manifested in 2015.
(d)The Tribunal did not address the Applicant’s claim that the situation was worse in 2015 than it had been earlier, instead addressing a claim that was not made – that the Applicant had a well-founded fear of persecution at all times between 2004 and 2015.
(e)In any event, the fact that the Applicant did not act ‘to have commensurately avoided the grave threats of harm’ between 2004 and 2014 cannot as a matter of logic be the basis of an inference that she did not have a well-founded fear of persecution in 2015.
In essence, it was submitted that the tribunal either misconceived the applicant’s claims or made a finding which was illogical or irrational.[57]
[57] Paragraph 56 of the applicant’s written submissions filed 10 August 2018.
It was not disputed that if it is shown that the tribunal failed to consider or properly deal with an argument or an integer of an applicant’s claim, this constitutes a failure by the tribunal to exercise its jurisdiction and this failure amounts to a jurisdictional error.[58]
[58] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] and [95].
In order to properly exercise its jurisdiction, the tribunal must properly understand the claims made by the applicant.[59]
[59] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [34].
It was said on behalf of the applicant that there had been an amelioration of the situation arising from her father incurring a debt to some money lenders in 2004.[60] It was only in 2015 that the situation worsened when the money lenders managed to locate the applicant’s parents once again.
[60] Paragraph 52 of the applicant’s written submissions filed 10 August 2018.
It was submitted on behalf of the applicant that on a fair reading of the tribunal’s reasons, it was apparent that the tribunal did not consider that claim but rather concluded that the fact that the applicant’s parents residential, work and travel history between 2004 and 2005 did not support a finding that the applicant or her parents held a fear for the reasons claimed.[61]
[61] Paragraph 53 of the applicant’s written submissions filed 10 August 2018.
It was also submitted that although the tribunal noted that the applicant referred to the situation worsening in 2015 when the money lenders located her parents, it failed to make any findings of fact as to whether it was satisfied that this occurred.[62] It was further argued that the absence of any such analysis in the tribunal’s reasons evidences a failure on the part of the tribunal to consider that claim, or part of a claim.
[62] Paragraph 54 of the applicant’s written submissions filed 10 August 2018.
In response, it was said that this aspect of the applicant’s case was not put before the tribunal. Had it been put, it was properly conceded that “this would have been ‘a submission of substance’ that may have required specific attention by the Tribunal and some attention in the statement of reasons.”[63] However, it was submitted on behalf of the Minister that no such argument was raised by the applicant, nor did the applicant’s submissions refer to where such a claim was made.
[63] Paragraph 25 of the Minister’s written submissions filed 27 August 2018; SZSSC v Minister for Immigration (2014) 317 ALR 365 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [59]–[63].
In her application for a protection visa, the applicant relevantly stated:
-I am seeking protection in Australia so that I do not have to return to Malaysia.
-I left Malaysia to join my parents whom applied for the protection visa granted with bridging visa which had been lodged on 1st May 2015.
-If I return to my country, I will be separated from my parents again for the unsure period of time, being seek by the loansharking person who always want to harm my family and I since years ago and even brought harm to my aunt’s family whom my siblings stay with as well as me, for all those past years.[64]
[64] Court book page 31.
The applicant also referred to the incident which occurred in 2004 in the following terms:
-One night, (maybe 2004) an unsured number of people came to my family house at… Selangor, gave threaten to my father, made loud noise, stomped the gate and some intimidation that I can’t understand that time. Later I knew that they were the Ah Long team who manage the loansharking business.[65]
[65] Court book page 32.
She then discussed moving to her aunt’s house shortly after this incident and living in a hostel for five years before studying her diploma for a further three years. She then returned to her aunt’s house.[66]
[66] Court book page 32.
The only reference in her application to the incidents in 2015 are in response to question 93 where she said, “my parents have to move out from their last house in Malaysia… after the most current attack from them.”[67] She then went on to say:
However, that time my parents had left Malaysia and we do not meet each other anymore since I was in university. Besides, I can’t manage to move to other place due to some restrictions. First, I was in the beginning of my career as a physiotherapist. I tried to get experience as an independent freelance therapist while working at university of Malaya as a research assistant. Unfortunately, on June 2015 … my eldest brother was alleged an accident …which had caused a bad injury. He undergo the splenectomy operation and don’t go to work for a period of time, meanwhile, we still have to be careful of the ah Long Attack. Next I can’t move anywhere I want because I have to look for my younger brother sometimes and any wrong steps will bring inconvenience to my education issue because I was still registered as diploma student before accept the graduation scroll on October.[68]
[67] Court book page 32.
[68] Court book page 33.
The applicant further stated:
As I had moved around my country for these previous years, I think I cannot do it anymore because this I the time where I should stay at a single place with my family to focus on my career which is just started and planning to upgrade my qualifications. The past days, it was so hard, being separated from my parents and siblings, make me realise that the family bonding is the best thing ever because they are who I am.[69]
[69] Court book page 35.
Moreover, in correspondence from the applicant in support of her appeal from the delegate’s decision, the applicant stated:
…I am really giving all my hope that this appeal will be accepted so that I can be allowed to continue my study and career clearly here.
Otherwise, I am very sure that I will be facing harmful situation for going back to my country. The reason for me to be here, for running from the loansharking person is not a current problem. My family and I have hold it for years. But still, our life still be in danger, anywhere we relocate in Malaysia.
Nowadays, my parents are getting older, also with my younger brother living together, I really hope that I can do something good to provide them a peaceful lifetime even not in my own country… I cannot rely on Malaysian authorities anymore. This is because there, the person who trying to harm us is unstoppable (emphasis added).[70]
[70] Court book pages 69 and 70.
Nowhere in this or any other material submitted by or on the applicant’s behalf does she make a claim in the terms now articulated.
It is not in dispute that the tribunal, as constituted in this matter, also had before it the applicant’s parents’ claim. A copy of the tribunal’s decision in the applicant’s parents’ claim is set out in the affidavit of Edward Smith affirmed 10 August 2018. Whilst it is apparent from the tribunal’s decision in the parents’ claim that reference was made reference to the Ah Long money lenders shortly prior to their departure from Malaysia and a complaint to the police was made, it does not evidence any claim now made by the applicant.
Moreover, it is evident from a fair reading of the tribunal’s decision in the applicant’s case that the tribunal was not satisfied that the claim of a recent revival of the money lenders’ interest in her parents was credible. So much is clear from the tribunal’s findings summarised below:
a)the police report, which it accepted was made in 2015, “was done so for migration purposes and not because they had a long standing fear of an ah long since around 2004”;[71]
b)the applicant’s parents “were advised to depart Malaysia for their safety and the safety of their children … and it does not accept that the actual triggering event of the applicant or any of her family members departure for Australia was related to any outstanding debts”;[72] and
c)the applicant’s parents did not have “any genuine or personally held fears of persecution if the applicant returned to Malaysia in the reasonably foreseeable future”.[73]
[71] Court book page 115 at paragraph [48].
[72] Court book page 115 at paragraph [49].
[73] Court book page 115 at paragraph [51].
For each of these reasons, I find that the claim now advanced by the applicant does not arise from her material in the sense contemplated in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1.
As noted by the High Court in DWN027 v The Republic of Nauru [2018] HCA 20:
Although an administrative tribunal’s process is to some extent inquisitorial and, depending on the nature and circumstances of a given application, a tribunal may be obligated to go beyond the case articulated by the applicant, the obligation to do so is confined to unarticulated claims which are apparent on the face of the material before the tribunal (emphasis added).[74]
[74] DWN027 v The Republic of Nauru [2018] HCA 20 at [17].
In addition, the plurality relevantly stated:
…it is important to bear in mind Gleeson CJ’s admonishment in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs that the system of judicial review of administrative action which operates in matters of this kind means that by the time a case reaches this Court it may be at the fifth level of decision making… after the appellant has failed at each level below. That being so, there is a real danger of an appellant seeking to put his or her case before this Court in a way that it was not put below and of the appellant criticising the reasoning of the decision maker in a manner that overlooks the forensic context in which the reasoning was expressed. For that reason, as Gleeson CJ emphasised, the position which this Court has taken, and to which it adheres, is that, upon judicial review, the decision of the decision maker must be considered in light of the basis on which the applicant was put before the decision maker and not upon some entirely different basis that may only occur to the appellant’s lawyers at this later stage of the process (emphasis added).[75]
[75] DWN027 v The Republic of Nauru [2018] HCA 20 at [21], with references omitted.
These comments are applicable here. The argument that is now sought to be advanced as the basis for a submission that the tribunal erred by not considering it, was not advanced in the first instance. To the extent that the applicant “elaborated” the situation to be much worse since the loan sharks had found her parents living in Selangor, this does not amount to the applicant having made a claim that it was an incident in 2015 which was the basis of her claimed fear. Indeed such an assertion is not consistent with the bulk of the material contained in the applicant’s application and set out above.
The tribunal addressed these claims made by the applicant as follows:
a)the tribunal noted that the applicant claimed her parents had made a police complaint “but they did not do anything and advised her family to leave Malaysia”[76];
b)the tribunal noted that the applicant’s fears of claimed persecution were based on the following three claimed reasons:
i)the incident with the loan sharks in 2004;
ii)the applicant’s relocation shortly after that incident to live with her aunt; and
iii)the applicant’s awareness of her father’s difficulties with the ah longs loan sharks as a result of what her parents had told her:
the applicant… was aware that the ah long was of Chinese ethnicity, that a police record just prior to her parents’ departure to Australia had been lodged and that her parents had informed the applicant that the police told her parents to leave Malaysia because of the danger they were in.[77]
[76] Court book page 109 at paragraph [17].
[77] Court book page 112 at paragraphs [36] and [37].
The tribunal’s reasons fairly read reveal a detailed consideration of these matters by the tribunal. The tribunal also considered recent events relied upon by the applicant as the catalyst for the applicant and her family to seek refuge in Australia. In particular, the tribunal stated that it:
…accepts that a police report was submitted to the Tribunal outlining her parent’s complaint and it was this encounter with the police which was the triggering impetus for their departure.[78]
[78] Court book pages 114 and 115 at paragraph [47].
In addition to considering the credibility concerns identified at paragraphs 42 to 44 of its reasons, the tribunal also considered the fact that notwithstanding the applicant’s stated claims regarding the loan sharks’ activity in 2015, the applicant did not independently file a complaint with the police about any concerns she might have had.[79]
[79] Court book pages 114 and 115 at paragraph [47].
The tribunal also considered country information which suggested that it was highly unlikely that the police would not investigate such claims if made by the applicant and her family.[80] On the basis of all of these factors, the tribunal concluded that the police report submitted by the applicant’s parents was “not genuinely lodged with the Malaysian police based on any actual fear of a criminal organisation of any kind but for migration purposes.”[81]
[80] Court book page 115 at paragraph [48].
[81] Court book page 115 at paragraph [49].
For each of these reasons, I find that the tribunal did not fail to consider a claim made by the applicant.
I also find that the findings made by the tribunal were reasonably open to it on the basis of the material before it and were therefore not illogical or irrational.
The test for illogicality or irrationality was set out in Minister for Immigration and Citizenship v SZMDS (240) CLR 611:
…‘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 or 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.[82]
[82] Minister for Immigration and Citizenship v SZMDS (240) CLR 611 at [130] per Crennan and Bell JJ.
It was submitted on behalf of the applicant that the conclusion reached by the tribunal that it was not plausible or credible that the applicant had an actual or well-founded fear of a loan shark at the time of her departure for Australia or at the time of her application for a protection visa was illogical.
For the reasons set out above, this submission must fail. It was open to the tribunal to reach this conclusion having regard to each of the matters set out in the credibility concerns raised. In particular, it is noted that the tribunal accepted the applicant to be a witness of truth, but was acknowledged that much of her evidence was of limited value as it was second hand.[83]
[83] Court book page 113 at paragraph [38].
For each of these reasons, ground four is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application should be dismissed with costs.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 15 April 2019
16
3