BHG16 v Minister for Immigration & Anor
[2017] FCCA 2745
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHG16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2745 |
| Catchwords: EVIDENCE – Whether court may reject an applicant’s unchallenged evidence – where the court would have to be satisfied that the evidence was inherently unbelievable – where applicant has provided no relevant evidence – opponent not required to cross-examine and is free to make submissions on issue whether adequate explanation for non-attendance has been given. |
| Legislation: Migration Act 1958 (Cth), ss.4, 5, 13, 14, 31, 35A, 36, 48A, 52, 54, 55, 56, 57, 58, 65, 424A, 474, 476, 496 |
| Cases cited: AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 SZWBK v Minister for Immigration and Border Protection (No 2)[2017] FCA 1130 Texts cited: JD Heydon, Cross on Evidence 10th Ed, (2015) |
| Applicant: | BHG16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1115 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 6 October 2017 |
| Date of Last Submission: | 6 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Stone |
| Solicitors for the First Respondent: | DLA Piper Australia |
The second respondent filed a submitting appearance.
ORDERS
The application in a case filed 22 August 2017 be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,206.
NOTATION: These orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1115 of 2016
| BHG16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
and
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 6 October 2017, I made orders dismissing an application in a case filed on 22 August 2017. By this application, the applicant sought, in effect, an order for the reinstatement of his application for judicial review. My reasons follow.
The applicant, a male citizen of India aged 33 years, first applied for a protection visa on 13 June 2006. He is a Sikh and is now married.
The first visa application was refused by a delegate of the first respondent (Minister) on 8 July 2006. The second visa application, which is the subject of the present proceeding for judicial review, was lodged on 7 November 2013. In the intervening period, the applicant has pursued his claim for a protection visa with vigour. I extract the following chronology from the materials before me:
4 August 2006
application to Refugee Review Tribunal
19 December 2006
Tribunal affirms delegate’s decision
11 January 2007
application to Federal Court
11 July 2007
application dismissed
31 July 2007
application to Full Federal Court
10 November 2008
application dismissed by Federal Court
28 November 2007
application dismissed by Full Federal Court
28 November 2007
application for special leave to appeal
20 December 2007
application dismissed
15 January 2008
application for review in High Court
16 July 2007
application dismissed
31 July 2008
application for review in Federal Court
28 November 2008
application to Full Federal Court
18 March 2009
application dismissed
9 April 2009
application for review in High Court
23 September 2009
application dismissed
21 October 2009
application for Ministerial Intervention
17 January 2010
application refused
27 January 2010
further Bridging visa
12 March 2010
further Bridging visa
see Decision Record of Delegate of the Minister dated 19 November 2014, Part A, Section 3 (History); Decision Record of Administrative Appeals Tribunal (Tribunal) dated 2 May 2016, (Reasons) at [21].
The applicant’s further bridging visa expired on 19 March 2010.
Although he was self-represented at the hearing before me, since at least November 2013, the applicant has had some assistance of lawyers. The materials before me do not enable an assessment to be made whether the applicant had the assistance of lawyers with respect to the proceedings set out above.
The current further application for a protection visa that was made on 7 November 2013 was made following the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ). The holding in SZGIZ was that s 48A of the Migration Act 1958 (Cth) (Act) did not prevent a further protection visa application being lodged where that further application was grounded on a criterion which had not formed the basis of a previous unsuccessful application: [32]-[33], [47] (Allsop CJ, Buchanan, and Griffiths JJ). The Full Court considered that its conclusion was supported by and consistent with Australia’s international non-refoulement obligations: [57], [59], [62]. Following the decision in SZGIZ, s 48A was amended in 2014 on three occasions.
On 19 November 2013, the Department of Immigration and Border Protection (Department) sent a letter to the applicant’s migration agent inviting the applicant to arrange an interview to discuss his claims. He did not take up that invitation in the ensuing twelve months.
When the current application for a protection visa was refused on 19 November 2014, the delegate found that country information did not support the applicant’s claims and that his written claims were both vague and lacking in detail. The delegate concluded that he was not prepared to accept the applicant’s claims as being genuine or credible. The delegate further found that there was no evidence the applicant had a right to enter and reside in a safe third country. Addressing s 36(3) of the (Act), the delegate concluded that the applicant did not have effective protection in a third country (see below). In addition, the delegate identified the basis on which the applicant made his claims for protection and how his migration agent had modified those claims. The delegate noted that the applicant had not arranged an interview with the Department.
On 11 December 2014, the applicant sought review of the delegate’s decision by the Refugee Review Tribunal. His lawyer filed detailed submissions in advance of the Tribunal hearing. The applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments in his case. An interpreter was arranged.
The applicant appeared before that Tribunal at a hearing held on 14 January 2016. In the course of that hearing, the applicant provided copies of death certificates of his father and uncle respectively. Following the hearing, the applicant provided the Tribunal with country information relating to the position of Sikhs in India. On 2 May 2016, the Tribunal provided its Reasons, affirming the decision of the delegate not to grant the visa application. It is convenient to examine the Reasons in the context of the proposed grounds of review.
Procedural history
On 27 May 2016, the applicant issued proceedings in this court seeking an order that the respondents show cause why a remedy should not be granted in exercise of the court’s jurisdiction under s 476 of the Act in respect of the Tribunal decision. The application was supported by an affidavit affirmed by the applicant on 27 May 2016. The affidavit exhibited a copy of the Reasons and stated that the applicant sought to supplement his application with further submissions and oral argument. The application contained three grounds of review each of which was amplified by detailed particulars.
By its response, the Minister opposed the relief claimed on the stated basis that no reasonably arguable case was disclosed by the application.
On 26 October 2016, orders were made regulating the preparation of the matter for that hearing. Pursuant to those orders, the applicant filed an amended application and an outline of submissions. The amended application contained four particularised grounds of review.
The application was listed for hearing on 2 August 2017. On the morning that the matter was listed, the applicant transmitted an email to the court to which was attached a brief letter and medical certificate. The applicant’s letter stated:
. . . my file number is MLG1115/2016. I have my show-cause hearing on 2 August 2017 at 11.30 am. I am not feeling well, so, I would not be able to attend it. I am providing my medical certificate. I am apologised for the inconvenience.
The attached medical certificate of Dr Akram Jabbar stated as follows:
THIS IS TO CERTIFY THAT
[BHG16]
IS RECEIVING MEDICAL TREATMENT FOR HER MEDICAL CONDITION.
SHE WILL BE UNFIT TO CONTINUE USUAL OCCUPATION.
From Tuesday, 1 August 2017, to Wednesday, 2 August 2017. INCLUSIVE.
This Certificate was completed on 1/08/2017.
It is not apparent why the medical certificate was not provided to the court on 1 August 2017 (the date that it was obtained by the applicant).
As the applicant’s email had not been copied to the respondent’s solicitor, the court forwarded that email together with the attached letter and medical certificate to the respondent’s solicitors and sought a response. The respondent opposed the applicant’s adjournment. The court then transmitted an email to the applicant, forwarding the respondent’s email which opposed the proposed adjournment.
Arrangements had been made for an interpreter to be present to assist the applicant in the course of the application. The interpreter did attend court at the appointed time.
Upon the case being called on for hearing, there was no appearance by or on behalf of the applicant. The Minister appeared by his solicitor. A Court Officer called the proceeding three times in the public area of the court. There was no appearance by or on behalf of the applicant. The applicant’s email above made plain that the applicant was aware that the proceeding was listed for hearing on 2 August 2017.
I approached the application on 2 August 2017 on the footing that the applicant, albeit absent, was seeking an adjournment.
In making submissions in opposition to the proposed adjournment, the Minister relied upon MZAKQ v Minister for Immigration and Border Protection [2016] FCR 1392, which identifies considerations relevant to an application for an adjournment that is made on medical grounds. Those principles were applied here in the manner described below
First, it must be accepted that applications for an adjournment are necessarily fact specific – there will be a wide array of circumstances in which a party seeks to adjourn a hearing. In this case, the adjournment was sought in circumstances where the applicant contended that he was feeling unwell. There was a paucity of detail concerning the Reasons for the applicant’s stated unwellness.
Secondly, inferentially, the applicant was sufficiently healthy on 1 August 2017, to be able to attend the medical practitioner from whom he had obtained the medical certificate that was relied upon.
Thirdly, the applicant’s particular medical condition is entirely unknown, the certificate being noteworthy for its generality. Again, whatever medical condition had been sustained by the applicant, it was of a transient nature. By the terms of the certificate the applicant’s unfitness to “continue her usual occupation” was limited to the period, Tuesday, 1 August 2017 to Wednesday, 2 August 2017.
Fourthly, nothing appeared as to the nature of the “medical condition” that was said to support the unfitness to continue his usual occupation. The certificate did not state that the applicant was unable to attend court (if only for the purpose of personally making submissions or giving evidence in support of the application for an adjournment).
Fifthly, there was no affidavit or other evidence that may have supported the conclusion the applicant was unable to attend the hearing. While there may be circumstances in which a party to a proceeding sustains, albeit temporarily, a medical condition of such significance as to render the person unable to attend court, including on short notice, that is not a matter about which the court should be asked to speculate: MAZKQ at [9].
I accepted the Minister’s submission that an application for an adjournment calls for the favourable exercise of a judicial discretion and that considerations beyond the applicant’s medical evidence are also relevant to the exercise of that discretion: see MZAKQ at [10]-[12] citing Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [49]; Sali v SPC Limited (1993) 116 ALR 625, 629 (Brennan, Deane and McHugh JJ); and relatedly see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
Beyond the general consideration of case management, more specific considerations which militated against the favourable exercise of a discretion to adjourn the hearing included the waste of public resources (including the wasted cost of arrangements made for an interpreter to attend court), the use and loss of court time to other litigants and that a costs order in favour of the respondent to the adjournment application is not necessarily palliative.
I was not satisfied that a sufficient foundation was made out such as to support a conclusion that an adjournment was warranted.
In all of those circumstances, there had been a want of prosecution in the application which entitled the Minister to apply for the dismissal of the proceeding: MZAKQ at [6] and [13] citing NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 (Lindgren). The circumstances of NAKX are analogous to the present. Lindgren J observed at [6] that the medical certificates produced on the eve of the hearing were quite unsatisfactory because they did not “address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing” stating:
I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.
If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.
His Honour also considered the pro forma structure and content of the certificates to be relevant: [7]-[9]. The reasoning in NAKX has been followed on frequent occasions: see, e.g., SZWBK v Minister for Immigration and Border Protection (No 2)[2017] FCA 1130 (Lee J).
Accordingly, on 2 August 2017, I dismissed the application pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Rules).
On 22 August 2017, the applicant filed an application in a case seeking, amongst other things, that
5. Application (MLG 1115/2016) Reopen
The preceding four paragraphs of the application reiterated the claims for prerogative relief that were set out in the application itself.
The application was supported by an affidavit made on 22 August 2017 which stated only the following:
That I need to reopen my file due to an order that the decision of the tribunal immigration assessment authority or minister be quashed.
The application in a case was returnable on 27 September 2017. An interpreter was booked for the assistance of the applicant. On that day the applicant appeared.
Without notice or leave, the applicant provided the court with an amended application which contained six proposed grounds of review, each of which was informed by more detailed particulars than those that had been filed pursuant to leave. In addition, the applicant handed the court a further outline of submissions. The hearing of the application for reinstatement was adjourned to 6 October 2017.
Again, an interpreter was booked for the assistance of the applicant who appeared on 6 October 2017. The hearing was further complicated by reason that an interpreter was only available by telephone. This complication required me to re-state to the interpreter much of that which was being said in court in order for the interpreter to be able to hear clearly what had been said.
In the course of that hearing the applicant sought to tender further documents, which tender I rejected. The documents provided country information that was sought to be relied upon at this hearing.
Consideration
Where an applicant does not appear at a hearing, the court may dismiss the application: r 13.03C(1)(c).
The court may set aside an order made in the absence of a party: r 16.05(2)(a). The applicable principles are well settled.
An application for reinstatement under rules of court is not automatic but calls for the exercise of discretion: cfGallo v Dawson (1990) 93 ALR 479, 480 (McHugh J). Indeed, inherent in the grant of a discretionary power is an assumption that applications will sometimes be refused: Jackamarra v Krakouer (1998) 195 CLR 516, 540 (Kirby J), see also at 519-521 (Brennan CJ and McHugh J).
The principles applicable to an application for reinstatement of a proceeding that has been dismissed for want of appearance at trial were considered in CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344. There, Mortimer J held at [4]:
. . . the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
see also BTR15 v Minister for Immigration and Citizenship[2010] FCA 530 at [7] (Edelman J); MZYEZ v Minister for Immigration and Citizenship[2010] FCA 530 at [7] (Ryan J) and MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs(2005) FCA 1066 at [18] (North J).
I apply these principles in the present application.
Adequacy of explanation
The applicant’s affidavit made on 22 August 2017 did not proffer any explanation for his non-attendance at the hearing on 2 August 2017.
As explained above, I refused an adjournment of the hearing on the ground that the medical certificate did not provide a sufficient basis for concluding that the applicant was prevented from attending court or that he could not participate effectively in a court hearing.
A question now arises in the context of the present application for reinstatement whether the applicant has provided an adequate explanation for his non-attendance. The distinction that may be drawn between the principles applied on an application for such an adjournment and an application for reinstatement is a fine one. In the former application, the court should be satisfied on the evidence that the applicant was prevented from travelling to court and participating effectively in a court hearing, while in the latter the applicant is required to adduce evidence which enables the court to conclude that an adequate explanation has been provided for such non-attendance.
The Minister was content for the applicant’s medical certificate to be assessed in the context of whether an adequate explanation had been provided. There was no request to cross-examine the applicant. This was unsurprising in circumstances where the affidavit said no more than that the applicant needed to re-open the file: see above at [32].
In an application of this kind, in order for the court to reject an applicant’s unchallenged evidence, the court would have to be satisfied that the evidence was inherently unbelievable: SZWBK, Lee J at [14] citing Precision Plastics Pty Ltd v Demir(1975) 132 CLR 362 at 371 per Gibbs J. Although that principle must be applied to evidence which is adduced by a party, in the present case there was little evidence. The applicant’s affidavit said nothing of relevance to the question whether he had, or had proffered, an adequate explanation for his non-attendance. The position does not then arise that Minister was precluded from making submissions on the adequacy of the explanation for the non-attendance at the hearing: JD Heydon, Cross on Evidence 10th Ed, (2015) at [17440], [17460].
The medical certificate at best proved that the applicant was unable to continue his usual occupation from 1 – 2 August 2017. It did not prove that the applicant was unable to travel to court and participate effectively in a court hearing on 2 August 2017.
Perhaps the most that could be said in the applicants favour is that he supplied the court with a copy of the medical certificate a day after it was obtained. In addition, the Minister relied upon two emails the first of which was sent to the applicant on 19 July 2017 informing him that if he did not attend the hearing, the Minister would apply for the proceeding to be dismissed with costs. The second email sent on 2 August 2017 told the applicant that the Minister would oppose any application for an adjournment. The applicant agreed that he had received each of those emails. He submitted that it was unreasonable for the court not to have told him that the adjournment had not been granted. The applicant had no basis on which to suppose that the proceeding would be adjourned because he was feeling unwell.
Although there was no obligation on the Minister to cross-examine the applicant on evidence that had not been given, I am conscious the applicant was not legally represented at the hearing. However, I also take in to account that the applicant has had access to lawyers since at least 2013 and do not ignore the scale of the litigation which the applicant has shown himself capable of initiating between 2007-2009.
The applicant’s explanation for his non-attendance from the hearing should be not accepted. It was quite inadequate.
Prejudice
The Minister did not submit that any prejudice might flow to the Minister from the reinstatement and for that reason I will assume in favour of the applicant that this factor is also made out.
I considered whether the circumstances of this case are such that questions of prejudice might be relevant. Prejudice might be shown, for example, where a party had repeatedly been ordered to pay, but had not paid, costs in related proceedings: SZWBK, [18] (Lee J).
I refer to the history of litigation in this matter at [3] above. By the date on which the High Court had dismissed the applicant’s claim for relief, the applicant had made no less than six applications in the Federal Magistrates Court, the Federal Court and the High Court, respectively: Reasons at [21].
As prejudice was not relied upon I do not consider it further.
Reasonably arguable prospect of success
In CAL15 at [5], Mortimer J considered that it was critical to the proper exercise of the discretion in an application for reinstatement that the court should not proceed as if the application was a final hearing of the judicial review proceeding. Her Honour reasoned that the court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application in order for the discretion to be exercised in favour of an order for reinstatement of the application, citing MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 at [62]. Mortimer J reasoned that, on a reinstatement application, the threshold for consideration of the merits of the application for judicial review was whether the grounds were arguable: [6]. The same threshold is prescribed in the rules of court on a show cause hearing: cf para 44.12(1)(a)-(b) of the Rules.
I respectfully agree in the reasoning in CAL15 that, because the threshold requirement is to demonstrate that the application for judicial review contains grounds which are arguable, it must be shown that the grounds disclose a “level of rationality and a basis in the material” which is sufficient for the court to be satisfied the application should proceed to a full hearing: [6]. Her Honour emphasised that:
. . . at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. [6], see also at [40].
As noted above, the applicant was self-represented at the hearing before me and filed detailed submissions. As the applicant has been engaged in applications of one form or another since lodging his original application in 2006, I am less prepared to accept that the applicant was unfamiliar with court processes. Indeed, it was apparent that the applicant had engaged lawyers in relation to his visa application since at least 2013. I have examined the Reasons on the footing that the applicant was a self-represented litigant.
Visa applications
The object of the Act as expressed in sub-s 4(1), is to regulate the coming into, and presence in, Australia of non-citizens (being those persons as defined by sub-s 5(1)). The Act is an exclusive source of the right of non-citizens to enter or remain in Australia: ss 4(2), 13-14.
Part 2 of the Act concerns the subjects, arrival, presence and departure of persons, and is arranged in 23 Divisions comprising ss 13 - 274.
Subject to the Act, the Minister may grant a non-citizen permission – to be known as a visa – to travel to, enter, and remain in Australia and to do so for a prescribed, specified or indefinite period: ss 29-30. There are to be prescribed classes of visa: sub-s 31(1). In addition, sub-s 31(2) provides that there are to be further classes of visa including a permanent protection visa and temporary protection visa: s 35A.
By s 65, the Minister is required (subject to exceptions that are not here relevant), to consider a valid protection visa application. Where a valid visa application has been made, the Minister is required to grant or refuse the visa application: paras 65(1)(a)-(b). The Minister may delegate the exercise of power conferred by s 65 to grant or refuse a visa application: s 496; cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 37-38 (Mason J, Gibbs CJ, Deane and Dawson JJ agreeing).
By paragraph 65(1)(b), the Minster is required to refuse to grant a visa application where the criteria for that visa are not satisfied.
One constraint imposed on the Minister in the consideration of a visa application is the requirement that the application may only be granted where the criteria for the particular visa applied for have been satisfied: ss 31(3), 65(1)(a)(ii).
Criteria for a protection visa are prescribed by s 36.
Tribunal decision
Contextually, the Tribunal noted that because the applicant’s claim had already been considered and rejected under para 36(2)(a) of the Act, it was not open to consider the current application on that basis since the applicant had not left Australia since the final determination of his original protection visa application. The Tribunal confined its review of the further protection application by reference to the remaining available criteria, vis para 36(2)(aa) and (c): Reasons [6], [73]-[75].
The Tribunal did not consider whether the applicant was a person in respect of whom Australia had protection obligations because the applicant was a refugee within the meaning of para 36(2)(a) of the Act. It did not do so because that question had been considered and decided in the original application: Reasons, [75], citing AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 (Markovic J). In AMA15, Markovic observed at [44], that where a person was entitled to lodge a second protection visa application based on the criterion as to whether complementary protection was required under s 36(2)(aa), then consideration of s 36(2)(a) had no part to play.
In Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127, the Full Court affirmed that a second visa protection application was valid only insofar as it sought to invoke criteria other than those which had been considered in the first application: at [108] (Mortimer J, Dowsett, Kenny, Siopsis and Besanko JJ agreeing). The Full Court further held that by operation of s 48A the Tribunal was obliged to consider the relevant statutory question being whether the applicant satisfied the criteria relevant to the ground upon which the second visa protection application was made: [39] (Kenny, Siopsis and Besanko JJ, Dowsett J agreeing); [110]-[112] (Mortimer J); see also SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90, [79], [96], [236].
The Tribunal did consider whether the applicant satisfied the criteria for complementary protection as prescribed by para 36(2)(aa).
Paragraph 36(2)(aa) of the Act provides the criterion for the grant of a protection visa on complementary grounds. The Minister is required to be satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. For the purposes of this criterion, significant harm has the meaning in s 36(2A): sub-s 5(1).
The Tribunal recognised these applicable principles, including the provisions which prescribed circumstances where an applicant was taken not to be at a real risk of suffering significant harm: Reasons, [8]-[14]. The Tribunal also recognised that it was obliged to take account of certain policy guidelines, identified the guidelines that were relevant to this application and considered them: Reasons, [15], [76].
The Tribunal provided a detailed description of the applicant’s claims and the submissions that had been filed by his migration agent.
Upon its review of the totality of the evidence and submissions made, the Tribunal concluded that the applicant was not a witness of truth and had provided no overall credible written or oral evidence or country information necessary to satisfy the criteria for his application: Reasons, [108]-[113]. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations: Reasons, [114].
The Minister submitted that the Tribunal decision is a privative clause decision by force of sub-s 474(2) and further, that save where a decision is vitiated by jurisdictional error, this court has no jurisdiction to review a Tribunal decision: sub-s 474(2); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Kirby and Hayne JJ). There the plurality explained that a decision vitiated by jurisdictional error was to be considered as no decision at all: citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, [51], [63], [152]. Plaintiff S157/2002 confirms that a decision vitiated by jurisdictional error is not a privative clause decision.
Where a decision is affected by jurisdictional error, sub-s 474(2) will not be engaged. The court will not be denied jurisdiction where jurisdictional error is demonstrated.
Grounds of review
As stated above, the proposed further amended application contained six grounds of review. I did not dwell on the question whether I should determine an application for leave to further amend the application. The applicant was asked and confirmed that he wished to rely on each of the grounds stated in that and each of his earlier documents. The grounds in this proposed application overlapped with, but expanded upon, grounds that were stated in earlier iterations of the application.
I agree in the Minister’s submissions that grounds 1-3 may be considered together.
Grounds 1-3 – a legally enforceable right to enter Nepal
Ground 1 reads: The [AAT] made jurisdictional error by failing to consider whether, under the law of Nepal, the Applicant has a legally enforceable right, or a privilege, or permission to enter and reside in Nepal.
Ground 2 reads: The [AAT] made jurisdictional error by applying the incorrect legal test to the question of whether or not the requirements of s36(3) of the [Act]applied to the Applicant.
Ground 3 reads: The [AAT] made jurisdictional error by misconstruing and failed to consider the real chance test pursuant to s36(2)(a) of the [Act] and furthermore making a finding that the Applicant had a right to enter Nepal in circumstances [w]here there was no evidence or other material to justify the finding.
In the course of the hearing, the Tribunal raised with the applicant that being an Indian citizen, he may have a right to enter and reside in Nepal by virtue of Articles 6-7 of the Treaty of Peace and Friendship made between India and Nepal in 1960: [70]. The Tribunal further raised with the applicant that by operation of sub-s 36(3) of the Act, it was open to conclude that the delegate was correct to refuse the visa protection application on the basis that Australia was taken not to owe protection obligations to the applicant: [71].
The Minister submitted, and I agree, that the Tribunal did not ground its decision to affirm the delegate’s decision on the basis that Australia was taken not to owe protection obligations to the applicant by operation of sub-s 36(3) of the Act. It did not do so.
To the contrary, the Tribunal expressly held at [72] that “Regardless of this claim, the Tribunal decided not to make a final determination on this matter since it finds, based in the context of the applicant’s overall lack of credibility in his general claims, the Tribunal is not satisfied, . . . , that the applicant does not face a real risk of significant harm if he returns to India.”
Grounds 1-3 raised no arguable ground for review.
Ground 4 – credibility findings
Ground 4 reads: The [AAT] made jurisdictional error by critical credibility finding without evidence.
The Tribunal examined credibility issues in some detail. In doing so, the Tribunal recognised the importance of adopting a reasonable approach to the question of credibility: Reasons, [77] citing Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wie Rong and Pam Run Juan (1996) 40 ALD 445. It accepted that if an applicant’s account appeared credible, the applicant should be given the benefit of the doubt. However, it was also recognised that this principle was qualified and fell to be applied by a Tribunal once all available information had been obtained and considered and the Tribunal had satisfied itself as to the applicants credibility: Reasons, [78]-[79], [81]. The principle did not apply to require acceptance of a claim that ran counter to generally known facts. The Tribunal noted that an overly nice approach to the standard of proof was inapt in the context of an administrative hearing (by a delegate or the Tribunal): Reasons, [80] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 293 (Kirby J).
The Tribunal recognised that cases in which an applicant’s claims would be supported by documentary proof were likely to be the exception rather than the rule and accepted that the benefit of the doubt should be given in favour of an applicant who was generally credible. It further accepted that where the Tribunal made an adverse credibility finding but did not do so with confidence, it was obliged to reassess that issue on the basis that it might possibly be true: Reasons [81]-[83] citing Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In addition, the Tribunal noted that it was not required to accept uncritically any or all of the allegations made by an application and was not required to have rebutting evidence before it in order to conclude that a particular factual assertion was not made out: Reasons [84] citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, 451 (Beaumont J); Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105 (Heerey J); Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (O’Connor, Branson and Marshall JJ); see also BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109, [56].
In its examination of the issues presented on review, the Tribunal:
(a)accepted that the applicant was credible on a limited number of issues: Reasons, [85];
(b)neither accepted that the applicant belonged to the SAD (Mann) Movement, an affiliate of that group, nor that he had fled the Punjab by reason of such affiliation: Reasons, [87]-[90];
(c)did not accept that the applicant’s father faced constant harassment or harm from authorities: Reasons, [91];
(d)did not find that in recent times there had been wide spread violence or killings of pro-Khanlistan Sikhs: Reasons, [92];
(e)did not consider that the applicant would face significant harm from authorities: Reasons, [92];
(f)did not consider that the applicant was adversely known to authorities: Reasons, [93];
(g)did not accept that the applicant had only become aware of significant family debts after he had lodged his application for Ministerial Intervention and found that the applicant had fabricated this claim and introduced it so as to bolster his protection visa application: Reasons, [99].
As I understood the applicant’s ground, he contended it was unreasonable for the Tribunal to have made these findings and to have affirmed the delegate’s decision on that basis. A decision may be affected by jurisdictional error if it is unreasonable in the requisite legal sense. A decision may be characterised as unreasonable if it “lacks an evident and intelligible justification” or if it reflects “a conclusion so unreasonable that no reasonable authority could ever have come to it” citing Minister for Immigration and Border Protection v Li (2013) 249 CLR 332, [78] (Hayne, Kiefel and Bell JJ), [28] (French CJ).
The test for unreasonableness is well established: Gupta & Ors v Minister for Immigration & Anor [2017] FCAFC 172, [36]-[37] (Gilmour and Mortimer JJ, Logan J agreeing). Unreasonableness in the relevant sense arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker: Li, at [30] (French CJ), [113] (Gageler J).
The authorities make clear that adverse credibility findings may be susceptible to judicial review for jurisdictional error: CQG15 v Minister for Immigration [2017] FCAFC 146, [37] (McKerracher, Roberts and Rangiah JJ). I consider that there was nothing illogical or irrational in the findings of the Tribunal on the issues addressed above. A conclusion to that effect is not open where reasonable minds might differ and a Tribunal has preferred one conclusion over another: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [130]-[131] (Crennan and Bell JJ); CQG15, [59].
The fourth ground seeks, impermissibly, a merits review by this court. In an application for judicial review of a Tribunal’s decision it is impermissible to seek that this court undertake review based upon grounds which press explicitly, or otherwise disguise, a claim for a merits review: Gupta v Minister for Immigration and Border Protection[2017] FCAFC 172, [62] (Gilmour and Mortimer JJ, Logan J agreeing) citing Minister for Immigration and Multicultural Affairs v Jia Legeng(2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J; Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority[2012] FCA 1205 at [124] (Kenny J).
The fourth ground of review might perhaps be understood as indicating a complaint that, before affirming the decision of the delegate, the Tribunal was obliged to forewarn the applicant that an adverse credibility finding was information that should have been provided if it was to form the reason or part of the reason for affirming the decision of the delegate to refuse a protection visa: s 424A. However, the Tribunal’s disbelief of the applicant’s evidence by reason of internal inconsistencies, should not be characterised as constituting information within the meaning of para 424(1)(a): SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, [18]; Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1, [413] (Kiefel J). A complaint of this kind does not afford the applicant a ground of review. I do not discern from the Tribunal’s Reasons in this case a basis upon which the applicant might otherwise have contended for jurisdictional error.
I reject this ground as not being arguable.
Ground 5 – irrelevant matters taken into account
Ground 5 reads: The [AAT] made jurisdictional error in that it took irrelevant matters into account when making the decision
In amplification of that ground, the proposed further amended application provided particulars by which the applicant stated that his lawyer had made written submissions including that he had not attended a departmental interview. The applicant said that he had been asked to “have biometrics done, but no departmental interview.” The applicant contended that the failure to invite him to an interview constituted an error, which should be rectified by reason of the adverse credibility findings that were made against him by the Tribunal.
This ground is without foundation. By letter dated 19 November 2013, the Department wrote to the applicant’s migration agent acknowledging lodgement of a valid application for a protection visa. The Department’s letter explicitly invited the applicant to arrange an interview: see at p.3 Invitation to interview. The delegate’s Decision Record stated that the applicant had been invited to arrange an appointment with the Department and that he had not done so. The Tribunal also noted this to be the case: Reasons, [34].
It was submitted by the applicant’s migration agent that a failure to invite the applicant to an interview constituted a procedural error: Reasons, [35]. Had this occurred, it did not entail jurisdictional error.
First, in the course of the hearing before me, the applicant emphasised that the adverse credibility findings should not have been made against him because he had not been invited to an interview. Whether or not that is so, the Tribunal did not draw an adverse inference against the applicant by reason that the applicant had not attended an interview. The Reasons record that the applicant had been invited to arrange an interview and also recorded the submission referred to above. There is no further reference to the issue in the body of the Tribunal’s Reasons. It is not open to infer that the Tribunal did draw an adverse inference against the applicant for having not arranged such an interview.
Secondly, the Minister was not obliged to conduct such interview. Part 2 of the Act, Sub-division AB of Division 3 comprises ss 51A-64 and concerns the subject Code for procedure for dealing fairly efficiently and quickly with visa applicant. It addresses matters including the manner of communication with the Minister in relation to a visa application (s 52), the Minister’s obligation to have regard to all of the information in an application (s 54), the opportunity which an applicant may take to provide further information to the Minster (s 55), the right of the Minister to seek further information (s 56) and that the Minister may invite an applicant to an interview and invite an applicant to comment on relevant information (ss 57-58).
As concerns an invitation to attend an interview, s 57 is not cast in mandatory terms. Rather it is expressed in permissive terms and provides that the Minister may invite an applicant to give additional information. Where such an interview is given, the applicant must make every reasonable effort to be available for, and attend, that interview: s 59. Whether or not the applicant had been invited to attend an interview, s 57 did not oblige the Minister to issue an invitation to the applicant that he should arrange an interview.
Thirdly, if there was a failure to invite the applicant to an interview, it was a failure of the Department. Absent jurisdictional error, the court is denied jurisdiction to review a decision of the Department (being a primary decision within the meaning of para 476(2)(a)).
Ground 6 – an essential integer of claim
Ground 6 reads: The [AAT] made jurisdictional error in that it failed to deal with an essential element or integer of my claims.
The applicant particularised this ground, stating that because he and his late father were “adversely known”, this was a factor that the Tribunal was obliged to – but did not – consider as being “a relevant complementary issue.”
Contrary to the applicant’s submission and proposed ground 6, the Tribunal did not fail to address this issue. The issued was considered by the Tribunal and was rejected by it: Reasons, [89], [91], [93].
Conclusion
I am not satisfied that the applicant has raised an arguable case for relief and I am not persuaded that there are discretionary considerations which militate in favour of a conclusion that the application for reinstatement should be granted under para 16.05(2)(a). For those reasons, the application should be dismissed.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 10 November 2017
CORRECTIONS:
Cover sheet and orders: Page 4, Representation for the Applicant delete “No appearance” and insert “In person”.
19
35
3