BGO17 v Minister for Immigration
[2019] FCCA 947
•15 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGO17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 947 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (subclass 866) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth). Migration Regulations 1994 (Cth). |
| Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; 70 AAR 413; 253 FLR 496 Huynh & Ors v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] FCAFC 122; 152 FCR 576; 232 ALR 1 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; 136 ALD 547 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593; 75 ALR 630; 75 ALD 630 |
| Applicant: | BGO17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 595 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 White |
| Solicitors for the Applicant: | Lander & Rogers Lawyers |
| 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, amended on 9 August 2018 and further amended on 13 September 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 595 of 2017
| BGO17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed by the applicant on 24 March 2017, amended on 9 August 2018 and further amended on 13 September 2018, for judicial review of 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, the Department for Immigration and Border Protection (“the Minister”) made on 18 April 2016 refusing to grant the applicant a Protection (subclass 866) visa (“the visa”).
In the applicant’s amended application, the applicant raises six grounds of review. At the hearing however, counsel for the applicant indicated that the applicant was no longer pressing ground four and no submissions were made in respect of that ground.
It is not in dispute that at the time of the hearing before the tribunal on
2 March 2017, the applicant was over 18 years of age, his birth date being 28 January 1998.[1] The applicant arrived in Australia on a visitor visa on 8 December 2015[2]. The applicant’s parents had arrived in Australia prior to the applicant and had made a separate application for protection visas which had been refused by the delegate of the Minister.[3]
[1] Court book page 2.
[2] Court book page 1.
[3] Court book page 135 at paragraph [17].
By the time of the tribunal’s hearing of the applicant’s application for review, the tribunal, constituted by the same member had already conducted a hearing into the applicant’s parents’ application for a review of the delegate’s decision, although the tribunal had not yet determined that matter.[4]
[4] Affidavit of Edward Smith affirmed 13 September 2018 at exhibit ES-1, page 16 at line 273 of the transcript of the applicant’s interview.
By agreement of the parties, this application for judicial review was heard immediately after the application for judicial review in proceeding number MLG 594 of 2017 in BGN17 v Minister for Immigration and Border Protection and Anor [2019] FCCA 961.
Summary
For the reasons that follow, this application for judicial review fails.
I make the orders sought by the first respondent.
Background
The applicant was born in Klang in the Malaysian state of Selangor.
The applicant’s parents were born in Cambodia and subsequently became citizens of Malaysia.
At the hearing before me, counsel for the applicant submitted that the applicant’s only claim for protection was that he feared harm from loan sharks who sought to harm his father.[5]
[5] Applicant’s written outline of submissions filed 4 September 2018, page 3 at paragraph 3.
The delegate refused the applicant’s application for a protection visa on 18 April 2016 on the basis that the applicant could obtain effective protection from an authority in Malaysia.
The tribunal’s reasons
The applicant is critical of the tribunal’s decision and states that they are difficult to follow and in places unintelligible.[6]
[6] Applicant’s written outline of submissions filed 4 September 2018 at paragraph 12.
I do not agree with this submission. Whilst it is the case that there are clearly some typographical errors in the tribunal’s reasons, overall the reasoning relied upon is able to be followed.
It is well settled that in considering the tribunal’s reasons, this court ought not construe them, ‘minutely and finely with an eye keenly attuned to the perception of error’ in reference to the comments of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 (“Wu Shan Liang”).[7]
[7] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 at [272].
In Wu Shan Liang, the majority considered the role of a reviewing court in a judicial review application. In this context, the majority, in considering the reasoning of the court below, said:
…The Court continued: “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status, must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision (footnotes excluded).[8]
[8] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 at [272].
Also in Wu Shan Liang, the Honourable Justice Kirby helpfully set out a series of principles which should guide a judge conducting judicial review of an administrative decision maker’s reasons. In particular, he said:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.[9]
[9] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 at [291].
The tribunal notes in its reasons for decision that the applicant attended a scheduled meeting on 2 March 2017 in Melbourne and although he was not represented at that hearing, the applicant was assisted by an interpreter in the Bahasa Malaysia and English languages.
In the proceedings before this court, the applicant relies on evidence of the interview and after the conclusion of the hearing with the consent of the first respondent, produced a transcript of the proceeding before the tribunal member.[10]
[10] The affidavit of Edward Smith affirmed 13 September 2018, at exhibit ES-1.
Turning to the tribunal’s reasons for decision, the tribunal identified the criteria for a protection visa.[11]
[11] Court book page 134 at paragraphs [4] to [8].
The tribunal then went on to set out its consideration of the applicant’s claims and evidence at paragraphs 10 to 25 of its decision record. In particular, the tribunal recorded:
…the applicant departed Malaysia to join his parents in Australia and he left Malaysia because he does not want to return to his home country as his applicant’s parents applied for protection visas on
1 May 2015. The applicant claimed that he could not return to his country of nationality because there is a person seeking his father who may kidnap the applicant as a way ‘to get to his father’. The applicant has been staying with his aunt for the six years during his primary school study and his aunt’s neighbours told him that a suspicious looking person was looking for his father. The applicant claimed that he cannot rely on his aunt’s family for too long and burden them with the issue.[12][12] Court book page 135 at paragraph [17].
The tribunal further noted:
The applicant claimed that there was an incident almost ten years ago but he cannot remember it well. The applicant claims to have recalled that someone came to the home of the applicant’s family, called out is (sic) father’s name and scolded his father in a loud voice. Otherwise the applicant claimed that he was too young to seek help and was sent to live with is (sic) aunt. The applicant added in his written claims that his father had made a police report but nothing changed. He claimed he is likely to experience physical harm and verbal harm and possibly kidnapping and adds the relocation is not possible elsewhere in Malaysia because he does not have the courage, money or a plan to relocate.[13]
[13] Court book page 135 at paragraph [18].
The tribunal then made reference to country information relating to the Royal Malaysian Police relevant to the police’s response to claims about moneylenders at paragraphs 26 to 28.[14]
[14] Court book pages 136 to 137.
The tribunal discussed its findings both as to credibility and generally at paragraphs 31 to 56.[15] It then set out its cumulative findings at paragraphs 57 to 59.[16]
[15] Court book pages 137 to 141.
[16] Court book page 142.
The tribunal set out its consideration as to whether the applicant is a member of the same family unit at paragraphs 60 to 67[17] and its overall conclusions at paragraphs 68 to 71.[18] At paragraph 72, the tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.[19]
[17] Court book pages 142 to 143.
[18] Court book page 143.
[19] Court book page 143.
Ground one
The first ground of review in the applicant’s further amended application filed on 13 September 2018 is:
The Tribunal misconstrued and misapplied the legal test for whether the Applicant was a dependent child of his parents and/or a member of his parents’ family unit in a way that affected the exercise of its jurisdiction.
Particulars
A.The Tribunal applied the incorrect point in time version of the Migration Regulations 1994(Cth) (Regulations).
B.The Tribunal did not have regard to or apply the definition of “dependent child” in reg 1.03 of the Regulations.
C.The Tribunal erred by concluding that because the Applicant had turned 18 he could not be a “dependent child”: CB142-143 at [64].
D.The Tribunal erred and misdirected itself in its application of the test for dependence under the Regulations: CB143 at [65].[20]
[20] The applicant’s further amended application filed 13 September 2018 at page 5.
This ground relies in essence upon the argument that in finding that the applicant was not a dependent child of his parents, the tribunal failed to identify and apply the correct legal test.
It is conceded that the applicant applied the incorrect point in time version of regulation 1.12. The applicable version of regulation 1.12 relevantly provided:
1.12 Member of the family unit
(1) For the definition of member of the family unit in subsection 5(1) of the Act… a person is a member of the family unit of another person… if the person is:
(b) a dependent child of the family head or a spouse or de factor partner of the family head; or
(c) a relative of the family head or 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.
It is clear that in concluding that the applicant, being over the age of 18 at the time of the decision, was not a dependent child, the tribunal did not consider whether the applicant fell within the definition of a dependent child within paragraph (b) of that definition.
However, it is submitted for the Minister that there is, nonetheless, no material error by the tribunal.
This submission essentially relies upon the fact that neither regulation 1.03 nor regulation 1.05A changed.
As the applicant was over 18 at the time of the hearing, the tribunal was required to consider whether he was a ‘dependent child’ in the sense that although over the age of 18, he was nonetheless dependant on his parents. In determining the question of “dependence”, the tribunal was required to have regard to regulation 1.05A. For the purposes of an application for a protection visa, the tribunal was required to consider whether the applicant was “wholly or substantially reliant on the other person for financial, psychological or physical support”. It was submitted that the factual conclusions reached in relation to whether the applicant was dependent upon his parents would exclude any possibility of the applicant otherwise meeting the definition of “dependent child” in regulation 1.03(b).
There is some force to this submission.
In this case, the tribunal accepted that:
a)the applicant was a minor when he initially lodged his application for a protection visa but had since reached the age of majority and that the applicant currently lives with his parents since his arrival in Australia;[21]
b)whilst living in Malaysia, the applicant travelled to Thailand, Cambodia and Singapore at various times with his parents for short periods;[22]
c)although it accepted that he did irregularly visit his parents in the five years prior to their departure from Malaysia, the applicant’s “aunt living in Klang in the Malaysian state of Selangor had been the applicant’s primary carer and guardian”;[23] and
d)the applicant’s preference is to remain with his parents and that he would experience some emotional hardship if he did returned without his parents and that he was unsure if he could remain living with his aunt in Selangor.[24]
[21] Court book page 138 and at paragraph [35].
[22] Court book page 138 at paragraph [36].
[23] Court book page 138 at paragraph [37].
[24] Court book page 141 at paragraph [52].
In addition, at paragraph 62 the tribunal identified the correct factors that it had to consider in determining whether the applicant was dependent upon another person, irrespective of whether this dependence arose because the applicant was a dependent child or otherwise, namely whether he was “wholly or substantially reliant on the other person for financial, psychological or physical support.”[25]
[25] Court book page 142 at paragraph [62].
The tribunal went on to conclude however, that it did “not accept that the applicant is a dependent of the claimed family head.”[26] Relevantly the tribunal accepted:
…that the applicant currently materially relies on his parents who are working in Australia while their visas are being processed. However this material reliance is recent and not born out any physical, emotional or psychological impairment or incapacity (emphasis added).[27]
[26] Court book page 143 at paragraph [65].
[27] Court book page 143 at paragraph [65].
In coming to this view, the tribunal having regard to:
…all relevant factors, including the history of the applicant’s relationship with his parents, his residential history back in Malaysia, his age and his capacity to work, … the Tribunal finds that the applicant is not wholly or substantially emotionally, psychologically, financially or any in manner (sic) dependent on his biological mother and his biological father…[28]
[28] Court book page 143 at paragraph [65].
The High Court has recently considered the issue of what constitutes the necessary materiality to support a finding that an error made by an administrative tribunal is a jurisdictional error.[29] In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780; 359 ALR 1 (“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.[30]
[29]Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780; 359 ALR 1.
[30] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780; 359 ALR 1 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.[31]
[31] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780; 359 ALR 1 at [30]-[31].
In Hossain’s case, 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 also not met and this finding alone required the tribunal to affirm the delegate’s decision.[32]
[32] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780; 359 ALR 1 at [35]-[37].
Whilst it is clear that the tribunal did not apply the correct point in time version of regulation 1.12 and did not expressly have regard to the definition of dependent child in (b) of regulation 1.03, its factual conclusions set out above, which were reasonably open to it on the evidence before it, would have precluded any other conclusion had it applied these provisions. This is particularly so given the conclusion reached that the applicant’s aunt had been his primary carer and guardian for many years prior to his arrival in Australia.
Moreover, to the extent that the tribunal focussed on the concept of the applicant’s capacity to work as a factor in determining the issue of “dependence”, it was argued on behalf of the applicant that regulation 1.05A requires the tribunal to consider the applicant’s actual situation rather than any “need”: to rely upon his parents. It was said that in accepting that “the applicant is materially (reliant) on his parents who are working in Australia”[33], that should have been determinative of the issue.
[33] Court book page 143 at paragraph [65].
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; 152 FCR 576; 232 ALR 1 (“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’s case, 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’.[34]
[34] Huynh & Ors v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] FCAFC 122; 152 FCR 576; 232 ALR 1 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.[35]
[35] Huynh & Ors v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] FCAFC 122; 152 FCR 576; 232 ALR 1 at [52].
At the heart of this part of the applicant’s argument is that the tribunal made the same error as that made in Huynh’s case, 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 does not advance the argument which was rejected in Hyunh’s case, namely that the regulation imports a strict notion of necessity and that any need which arises from a choice made by the applicant does not fall within the regulation. Rather, the argument advanced in this case is slightly more nuanced. The Minister acknowledges 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”[36], however, it could not be said that one is reliant on another 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. I agree with this submission.
[36] Court book page 143 at paragraph [65].
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 and in particular the fact that he had lived with his aunt since he was five years of age, together with the fact that he was now an adult and had the capacity to find work to support himself.
For completeness, I do not accept that the finding by the tribunal 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 his parents in Malaysia since he was five years old, was a relevant, if not determinative, factor in considering whether he 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, as a matter of fact, wholly or substantially reliant upon her parents for financial, psychological or physical support was a factual finding which was open to it to make on the material before it.
For each of these reasons, ground one is not made out.
Ground two
The second ground of review in the applicant’s further amended application filed on 13 September 2018 is:
The Tribunal unreasonably exercised its discretion under s 424(1) and (2), or alternatively failed to make an obvious inquiry in a way that affected the exercise of its jurisdiction, by its failure to get and have regard to the information contained in the parents’ application and its failure to invite the applicant’s parents to give evidence.
Particulars
A.The Tribunal considered that the Applicant’s claims were substantially reliant on the Applicant’s parents’ claims: CB140-141 at [46], [47], [49] ad [50].
B.The Tribunal was aware:
(a)Of information before it in the parents’ application relevant to the Applicant’s application; and
(b)That the Applicant’s parents were outside the hearing room during the Applicant’s hearing.
C.The Tribunal:
(a)Considered information provided by the Applicant to be “very limited”: CB139 at [40];
(b)Made at least five separate findings adversely to the Applicant on the basis of the actions of his parents: CB139-141 at [42], [45], [48] and [51];
(c)Did not have in the Applicant’s application information which the Applicant’s parents were likely to have.
D.The Tribunal had a discretion under s 424(1) to get and have regard to any information it considered relevant and a discretion under s 424(2) to invite a person to give evidence during a hearing.
E.At the hearing the Tribunal determined that it would not exercise a discretion to get and have regard to information provided by the Applicant’s parents: Affidavit of Edward Smith dated 9 August 2018 at ES-3.
F.In the premises, the Tribunal’s exercise of discretion was legally unreasonable.
This ground relies upon the proposition that the tribunal did not have regard to information in the applicant’s parent’s application. It was further submitted on behalf of the applicant that in circumstances where the tribunal acknowledged that the applicant’s claims for protection were substantially reliant upon the applicant’s parents, and in circumstances where the tribunal drew a number of adverse inferences of the parent’s actions, its failure to seek information from the applicant’s parents was legally unreasonable.
The tribunal has the discretion under section 424 to get any information that it considers relevant. This discretion must be exercised reasonably.[37]
[37] CKA15 v Minister for Immigration and Border Protection [2017] FCA 1327 at [43] in which Flick J cited Minister for Immigration and Citizenship v Li (2013) 249 332 [23] – [24
The applicant then sought to rely upon the decision in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 in which the Immigration Assessment Authority was held to have acted unreasonably, in the legal sense, by failing to exercise its power to seek information from the applicant in circumstances where the Authority did not have information which the applicant was likely to have.
It was said in support of this ground that the tribunal acknowledged that the applicant’s claim for protection was derivative from his parent’s claim and in those circumstances, it was unreasonable not to seek information from the applicant’s parents. This was particularly the case as it was said on behalf of the applicant, where the only fear claimed by the applicant was from loan sharks to whom his father owed money and the added fact that at the time the loan was initially taken out by his father the applicant was only five years of age.
The Minister’s response to this was that, as a result of the fact in this case that the same tribunal member heard the applicant’s parents claim that day, he already had the parents’ information before him and did have regard to it.
Section 430 of the Act relevantly provides:
Where the Tribunal makes its decision on a review … the Tribunal must make a written statement that:
(a)Sets out the decision of the Tribunal on the review; and
(b)Sets out the reasons for the decision; and
(c)Sets out the findings on any material questions of fact; and
(d)Refers to the evidence or any other material on which the findings of fact were based; and
(e)…
(f)…
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593; 75 ALR 630; 75 ALD 630, the Full Court of the Federal Court noted:
[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made an applicant in its written submissions…there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that a tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point…[38]
[38] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593; 75 ALR 630; 75 ALD 630 at [46]-[47].
It is clear from the transcript of the hearing before the tribunal member on 2 March 2017 that the tribunal, as constituted for the purposes of the applicant’s application, had already heard, but not yet determined the applicant’s parents’ application.[39]
[39] Affidavit of Edward Smith affirmed 13 September 2018, exhibit ES-1 to at lines 259 to 273.
It is clear from these facts that the tribunal member was aware of the applicant’s parents’ evidence in relation to the crucial issues and had regard to their claims from the nature of the questions put to the applicant as evidenced for example, by the tribunal’s reasoning at paragraph 42 of its reasons.
This is not a case like CRY16 in which the tribunal’s failure to invite the applicant to comment on the possibility of relocation was found to amount to a jurisdictional error. In CRY16, the tribunal considered the possibility of relocation for the first time, it not having been considered by the delegate at first instance. Consequently, the applicant had not put before the delegate or the tribunal any evidence in relation to the possibility or practicability of relocation. In those circumstances, the failure by the tribunal to raise this with the applicant and seek his response was found to amount to an unreasonable exercise of the tribunal’s discretion.
No similar issue arises in this case. The applicant has not established that the tribunal unreasonably failed to exercise its discretion under section 424.
For each of these reasons ground two is not made out.
Ground two (a)
In the alternative to ground 2, the Tribunal failed to afford the Applicant procedural fairness in accordance with s 424 of the Act.
Particulars
A.To the extent that the Tribunal did get and have regard to information contained in the Applicant’s parents’ application (information), the Tribunal was obliged to:
a.Give the Applicant clear particulars of the information: s 424A(1)(a);
b.Ensure that the Applicant understood why the information was relevant to the decision under review or the consequences of it being relied on: s 424A(1)(b);
c.Invite the Applicant to comment or respond to the information: s 424A(1)(c).
B.To the extent that the Tribunal did get and have regard to the information, the Tribunal failed to discharge its obligations in particulars A(a)-(c) above.
C.None of the exceptions to the Tribunal’s obligation in ss 424A(2A) or 424A(3) applied.
It was argued in the alternative that if as claimed by the Minister, the tribunal did have regard to the information provided by the applicant’s parents in their separate application for review, then the tribunal failed to comply with its obligations to put this information to the applicant under section 424A(1) in writing for his comment.
Section 424A(1) of the Act relevantly requires the tribunal to give an applicant particulars of any information that the tribunal “considers would be the reason or part of the reason for affirming the decision that is under review”. Section 424(2) then goes on to say that other than where an applicant is in immigration detention, the information or invitation must be given in a manner specified in section 441A.
The applicant further submits that none of the exceptions to section 424(1) apply.
Section 424(2A) relevantly provides:
The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particular of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
Section 424AA relevantly provides:
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason, for affirming the decision that is under review; and
(b)If the Tribunal does so – the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
It is clear from the transcript of the hearing before the tribunal on
2 March 2017, that the tribunal advised the applicant at the commencement that there may be information which is adverse to the applicant’s case which the tribunal would need to put to him and that if appropriate, the applicant may ask for further time to consider his response.[40]
[40] Affidavit affirmed by Edward Smith on 13 September 2018 at Exhibit ES-1.
It is not clear from the applicant’s submissions exactly what information from the applicant’s parents’ claim ought to have been put to the applicant in this instance. As is evident from the terms of section 424A itself, it is only information which the tribunal considers would be adverse to the applicant’s claim that needs to be put to the applicant. Leaving aside therefore whether the tribunal complied with the requirements of section 424AA and therefore was not required to do anything further under section 424A, a fair reading of the tribunal’s reasons evidence the fact that the tribunal did put to the applicant those matters which it considered adverse to his claim.[41]
[41] Court book page 139 at paragraphs [42] and [43].
Moreover, as submitted by counsel for the Minister, a number of the matters which were of concern to the tribunal member and which were the subject of discussion in paragraph 42 were based on information provided to the tribunal by the applicant himself. As such, the tribunal had no obligation to put these matters to the applicant as a result of section 424A(3)(ba).[42]
[42] Transcript page 16 at line 35 to page 17 at line 10.
The applicant also pointed to the following exchange in the transcript where the tribunal member said:
Okay. Well I had considered about asking you adverse information that might be in your parent’s application, or what they told me … but I don’t think that’s necessary.
…
And I’ll … I’ll be making an assessment about your own testimony and your own circumstances.
This does not evidence a failure to comply with the requirements of section 424A. At best, it simply evidences that the tribunal member is not relying on any adverse information in the parent’s application, but rather simply relying upon the information provided by the applicant. This does not disclose any jurisdictional error.
For these reasons, ground 2A is not made out.
Ground three
The third ground of review is:
The Tribunal failed to consider a clearly articulated claim of the Applicant in a way that affected the exercise of its jurisdiction.
Particulars
A.The Applicant claimed that he was required to live with his aunt for fear of being kidnapped: CB138 at [37].
B.The Tribunal recorded the claim, but did not otherwise engage with or address the claim.
In essence, by this ground, the applicant alleges that his claim that he was required to live with his aunt for fear of being kidnapped was not considered by the tribunal.
There is no dispute that a failure by the tribunal to consider a clearly articulated claim by an applicant is a failure by the tribunal to have exercised its jurisdiction under section 414 to review the decision.[43]
[43] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27 at [55].
In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; 136 ALD 547 the Full Court relevantly stated:
Critically to the determination of the issues raised in this appeal … involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.[44]
[44] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; 136 ALD 547 at [34].
Counsel for the applicant pointed to the following exchange between the tribunal and the applicant at paragraph 37 of the tribunal’s reasons:
The Tribunal asked if that meant his usual residence was with his parents or his aunt: the applicant responded that he fell he was a dependent on his parents as he was required to live with his aunt for fear of being kidnapped and that felt that he still need to live with his parents.
Whilst the tribunal concluded that the applicant spent his formative years since he was six or seven living with his aunt, it did not, according to the applicant consider his claim that the reason why he was living with his aunt was because he had a fear of being kidnapped. This, it was submitted evidenced a failure by the Tribunal to deal with the applicant’s claim properly or at all and amounted to jurisdictional error.
In response, it was said that the applicant’s statement about having a fear of being kidnapped was in the context of the loan sharks to whom his father owed money taking action against the applicant to “get at his father”.
In that context, it was submitted on behalf of the Minister, that the finding that the applicant and his family were not at risk of harm from the loan sharks was at such a level of generality that it was not necessary for the tribunal to further specifically mention the applicant’s time with his aunt.
I agree with the Minister’s submissions. At paragraph 17 of its reasons, the tribunal noted that the applicant:
…claimed that he could not return to his country of nationality because there is a person seeking his father who may kidnap the applicant as a way ‘to get to his father’.
Further at paragraph 53, the tribunal noted:
‘the applicant did not claim that he or his other family members were targeted by a loan shark because their religion, their political opinion, their ethnicity or any other reason mentioned s.5J(1)(a) as the essential and significant reason for his parents being targeted but based on the applicant’s membership of a family with outstanding debts to an unlicensed money lender … (emphasis added)
Importantly the tribunal went on to say:
[54] The Tribunal accepts that the applicant’s claimed fears that he would be personally targeted if he returned or that that effective protection from persecution or significant were not available were relayed to him by his parents. This was acknowledged by the applicant several times during the scheduled hearing. In this regard, the Tribunal finds that the applicant had some genuine personally held fears that he will face persecution based upon a dimly remembers memory (sic) and his trust, misplaced or otherwise, in his parents. … the Tribunal does not accept there were any credible reasons for those claimed fears about his parent’s debts at the time of his departure from Malaysia, at the time of his application for a protection visa … now or into the reasonably foreseeable future.
[55] Accordingly, the Tribunal finds that those fears of persecution arising from the applicant’s claims about any of his family members owing recent or outstanding debts to any criminal organisation or unlicensed money lenders … are not well-founded, if the applicant were to return to his home of Selangor or anywhere within the Federation of Malaysia in the reasonably foreseeable future.
When read in its entirety, the tribunal’s reasons make clear that it did consider the applicant’s claims. As noted in WAEE:
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In this case, I am satisfied that the reference to the applicant’s ‘fear of persecution’ in paragraph 54 set out above, read fairly, includes consideration of his fear of kidnapping. There was no need for the Tribunal to expressly refer to that separately and its failure to do so does not disclose any error.
For these reasons, ground three is not made out.
Ground four
The fourth ground of review is:
The Tribunal constructively failed to exercise its jurisdiction under s 414 by its failure to make findings on material questions of fact, or alternatively failed to comply with the requirement in s 430 to give a statement of reasons that “sets out the findings on any material questions of fact”.
Particulars
A.The Tribunal recorded in its reasons that it “outlined some of its concerns about the applicant’s claims”: CB139 at [41]-[42].
B.The Tribunal did not otherwise make any findings of fact in relation to those concerns.
C.The Tribunal relied upon its “concerns” the subject of Particular A above at least six times to make findings adverse to the Applicant: CB139 at [45]; CB140, three times, at [49], CB141 at [50] and at [54].
D.The Tribunal’s failure to make findings on material questions of fact amounted to an abdication of its statutory task to conduct a review.
The applicant did not press ground four at the hearing.[45]
[45] Transcript page 12 at line 39.
Ground five
The fifth ground of review is:
The Tribunal constructively failed to exercise its jurisdiction, or alternatively reached a finding without any probative basis, in concluding that the Applicant was encouraged to mislead the Tribunal.
Particulars
A.The Tribunal found that the “applicant’s parents encouraged the applicant to unknowingly or unwittingly mislead the Tribunal”: CB141 at [51].
B.The Tribunal reached its finding without any probative basis.
C.The Tribunal’s erroneous finding identified at Particular A above was critical to the Tribunal’s credibility conclusion at [54].
It was submitted on behalf of the applicant that there was no evidentiary or probative basis upon which this finding could properly be made. The applicant relies upon the decision in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; 70 AAR 413; 253 FLR 496 (“CQG15”) for the proposition that an adverse credibility finding could be subject to challenge where that finding is made without any logical or probative basis.
The tribunal made the following statement:
The Tribunal makes a further finding that the applicant’s parents encouraged the applicant to unknowingly or unwittingly mislead the Tribunal as well as the Department for migration purposes and not because the applicant’s parents had any genuine or personally held fears of persecution if the applicant returned to his home state of Selangor or anywhere within Malaysia in the reasonably foreseeable future.[46]
[46] Court book page 141 at paragraph [51].
It was further submitted that the error in the tribunal making this finding in turn infected the ultimate credibility conclusions reached by the tribunal.[47] For reasons similar to those in CQG15, it was said that this erroneous credibility finding could not be isolated from the tribunal’s ultimate conclusions at paragraph 54. The tribunal’s error, it was said on behalf of the applicant was so significant to the rejection of the applicant’s claim that it amounted to jurisdictional error.
[47] ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109; 154 ALD 221.
This ground suffers from the following difficulties. First of all, a fair reading of the tribunal’s reasons do disclose a basis for this finding. Secondly, in any event, this is not a finding which was central to the conclusions reached about the applicant’s claims, but rather it flowed from those findings. To that extent CQG15 is distinguishable from the present proceedings on its facts.
As to the first of these matters:
a)The tribunal canvasses the applicant’s claims about having lived mainly with his maternal aunt since 2005.[48]
b)The tribunal notes that the applicant’s father borrowed some money from an unlicensed money in 2004 and there was a disturbance at their home with abuse directed at his father; as he was growing up, the applicant was told not to discuss his whereabouts with others; the applicant’s parents complained to the police and generated a police report but the police did not investigate and recommended the family leave Malaysia for their safety.[49]
c)The tribunal concluded that the family’s residential and travel history and the concerns it had about the applicant’s credibility it was not satisfied that any of the family members acted to avoid grave threats of harm arising from a loan shark as claimed.[50]
d)The tribunal considered the claim that the applicant’s parents had filed a complaint with the police but the police did not investigate and recommended that they leave the country for their safety. The tribunal concluded, having regard not only to the credibility concerns that it had but also to country information, that whilst satisfied that the applicant’s parents lodged a complaint, that this complaint was not lodged for legitimate reasons but rather for migration purposes. Moreover, the tribunal did not accept that the police advised the applicant or anyone else in his family to leave for their own safety. Indeed at paragraph 49, the tribunal did not accept that the triggering event for the applicant’s departure from Malaysia, or that of any other member of his family, “was related to any outstanding debts, historical or otherwise”.[51]
e)The tribunal found that the applicant’s parents and aunt had told the applicant and his siblings not to disclose the whereabouts of the applicant’s parents. The tribunal went on to say:
However, the Tribunal does not accept the claimed reasons which were derivative from the applicant’s parents for this discretion to be credible … [52]
[48] Court book page 138 at paragraph [37].
[49] Court book pages 138 to 139 at paragraph [38].
[50] Court book pages 139 to 140 at paragraph [45].
[51] Court book page 140 at paragraphs [46] to [49].
[52] Court book page 141 at paragraph [51].
Taken together, the tribunal was entitled to conclude that although the applicant had been an honest witness, to the extent that he gave evidence which was ultimately not accepted this was because he had been encouraged to mislead the tribunal.
Therefore, the tribunal’s findings at paragraph 51 do not disclose any jurisdictional error and ground five is not made out.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 15 April 2019
11
3