BKY19 v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] FedCFamC2G 724

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BKY19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 724

File number(s):

SYG 856 of 2019

Judgment of:

JUDGE MCCABE

Date of judgment:

22 May 2025

Catchwords:

MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – exercise of the discretion to proceed pursuant to s 426A(1A)(a) of the Migration Act 1958 – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 36, 425, 426A

Cases cited:

ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34

DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

Division:

Division 2 General Federal Law

Number of paragraphs:

32

Date of last submissions:

29 April 2025

Date of hearing:

28 October 2024, 19 March 2025

Place:

Sydney

Counsel for the Applicant:

Mr J P Redmond (Pro Bono)

Solicitor for the First Respondent:

Mr T Hillyard, Sparke Helmore Lawyers

Second Respondent:

Submitting appearance save as to costs

ORDERS

SYG 856 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BKY19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MCCABE
DATE OF ORDER:	22 MAY 2025

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE MCCABE:

1. This case has been in the Court’s list since the application for judicial review of a decision of the Administrative Appeals Tribunal was filed in 2019. That stately progress was disrupted by an outbreak of candour at the outset of the hearing before me. Mr BKY19 announced from the bar table that his former representative had fabricated the factual claims made in Mr BKY19’s application for a protection visa. Mr BKY19 said he had only recently become aware of what his erstwhile representative said in the application. Mr BKY19 told me he just wanted a visa that would allow him to live and work in Australia. He said he hoped saying as much at this juncture might allow a conversation about that possibility.

2. As it happens, Mr BKY19 has only one potentially viable ground of appeal. That ground arises out of the fact the Tribunal elected to make a decision on the review without further reference to Mr BKY19 after he failed to appear at the hearing. (Mr BKY19 says he was unaware the matter had been listed, presumably because his erstwhile representative had not kept him informed.) The Tribunal found – correctly, it now turns out – the applicant’s claim was fabricated in important respects. But a question still arises in these proceedings over whether it was legally reasonable for the Tribunal to proceed as it did. The admissions made by the applicant before me do not tell me anything about whether the Tribunal’s decision is affected by material jurisdictional error. Of course, those admissions are potentially relevant to the question of whether relief should be granted in the event a jurisdictional error is identified.

3. I am not satisfied the Tribunal’s decision to proceed as it did was legally unreasonable, and its decision is not otherwise affected by material jurisdictional error. But even if I were to conclude the decision to proceed was affected by jurisdictional error, I would not grant relief in the circumstances. It follows the application for judicial review must be dismissed. I explain my reasons below.

   BACKGROUND

4. Mr BKY19 is a citizen of Malaysia. He last entered Australia on an Electronic Travel Authority visa on 23 May 2017. He thereafter consulted a migration agent who prepared an application for a Protection (Class XA) (subclass 866) visa that was lodged on 27 July 2017. Mr BKY19’s application form described his fear of violence at the hands of moneylenders in Malaysia to recover a debt owed by a relative. The application form said Mr BKY19 had guaranteed the loan. He said providing the guarantee made him fair game for the ruthless and violent individuals seeking recovery of the debt. He claimed he had been attacked before he left Malaysia and that debt-collectors demanded he sell his assets to pay his relative’s debt. He said the Malaysian authorities will not protect him if he returns, so he wants to stay in Australia.

5. Mr BKY19 provided little in the way of supporting material to substantiate the claims he made in his visa application. After reviewing the material, the delegate concluded the applicant did not satisfy the requirements in s 36(2) of the Migration Act 1958 (Cth) that apply to refugees and those seeking complementary protection. The delegate refused the application on that basis. Mr BKY19 sought review of that decision in the Tribunal.

   THE TRIBUNAL’S REVIEW

6. The Tribunal wrote to the applicant on 12 December 2018 to advise the Tribunal was unable to decide the application in his favour based on the material in the Tribunal’s file. The Tribunal invited the applicant to attend a hearing on 14 March 2019 for the purpose of giving evidence and presenting arguments. (Letters of this kind are routinely sent to applicants pursuant to s 425 of the Act.) The hearing invitation is reproduced in the court book at pp 61ff. The invitation also asked the applicant to provide any additional relevant documents in a timely way. The invitation expressly states the applicant could apply for an adjournment of the hearing but warned the hearing would go ahead unless an adjournment was granted. The letter continued:

   If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. …

7. Mr BKY19 did not appear at the hearing when it was convened despite reminder messages from the Tribunal. He had not sought an adjournment, so the Tribunal had to decide what to do. The Tribunal elected to proceed with the hearing in the applicant’s absence.

8. After summarising the hearing invitation and the fact of non-appearance at [8] of its reasons for decision, the Tribunal said (at [9]):

   The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that service was good and that the applicant was properly notified by the invitation to the hearing in accordance with the invitation sent by email: s.441A(5). In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

9. The Tribunal set out the tests it needed to apply to resolve the substantive question – namely, whether the applicant was owed protection obligations. The Tribunal correctly identified the question was answered with reference to the criteria in sub-ss 36(2)(a) and (aa) of the Act. The first of these subsections deals with persons who qualify as refugees. The test refers to the existence of a ‘well-founded fear of persecution’ which is a defined term. The second subsection deals with complementary protection where the applicant faces a real risk of significant harm if they returned. Once again, this is a term of art. The Tribunal’s exposition of the tests to be applied does not disclose any error.

10. The Tribunal then proceeded to consider the material provided in support of the application, which was principally comprised of a series of factual assertions in the visa application. The Tribunal lamented the lack of supporting documentary evidence that might establish or corroborate aspects of the claim. It explained (at [13]):

    The Tribunal has only had access to the departmental and Tribunal files as at the date of the hearing. Apart from the applicant’s claims made in the application itself there is nothing on either file to support the applicant’s claims. There is no information, evidence or documents to demonstrate that the applicant has suffered any type of adverse event in his home country of Malaysia for any reason at all or, indeed, any reason which would attract the protection obligations of Australia. There is no other independent, supporting documentary evidence to indicate that the applicant ever sought protection in his home country or made any type of complaint to any government authority, police or otherwise at any time.

11. The Tribunal repeated its concerns about the absence of objective evidence (at [16]). It also noted the applicant’s lack of engagement, saying (at [15]):

    The Tribunal has not had the opportunity of asking the applicant about any aspect of his protection claim. Indeed, the Tribunal has not had the opportunity of asking the applicant how he regarded the Tribunal’s request and notification in the hearing invitation [requesting that the applicant produce “any information/submissions/documents” so the Tribunal could make a decision, including (potentially) an oral decision at the end of the hearing.]

12. The Tribunal’s central finding was recorded at [17] as follows:

    The Tribunal finds, that based on the non-existence of any objective, independent or corroborative information or government documents or otherwise, that the assertions made in the claim for protection are not genuine and are a complete fabrication. [Emphasis added]

13. The Tribunal went on to formally conclude the delegate’s decision should be affirmed because the applicant was unable to satisfy the criteria in s 36(2). A fair reading of the Tribunal’s reasons for decision (in particular at [20] and [21]) makes clear that conclusion was premised on the absence of sufficient evidence – particularly objective evidence that corroborated the otherwise unsupported assertions in the application. That conclusion was clearly open to the Tribunal without more. But the bolded language in [17] also contains what amounts to an adverse credit finding against the applicant. That credit finding was gratuitous in the sense the Tribunal was able to reach the conclusion it reached without making that finding. By taking that unnecessary further step, the Tribunal risked getting itself into trouble, for reasons I will explore below.

    THE GROUNDS OF REVIEW

14. The applicant’s grounds of review were drafted by yet another agent. Mr BKY19 had nothing to say about them at the hearing because, while he had now read the grounds as drafted, he did not really understand them. I will nonetheless deal with the grounds as they were articulated in the application for review.

15. The first ground baldly asserts the “Tribunal made jurisdictional error” without providing any particulars. The second ground said the “Tribunal ignored the fact of the serious harm I would suffer after I return to Malaysia”. The third ground, apparently to similar effect as the second, says “the Tribunal ignored the material documents about the harm what I had suffer in Malaysia” [sic].

16. The second and third grounds of review can be dealt with briefly. The Tribunal did refer to the applicant’s claim in the application document that he had been assaulted by the moneylenders in the past. The Tribunal also noted the applicant’s claim he would likely be assaulted again if he returned: at [11]. The Tribunal went on to point out there was an absence of other information that would particularise or substantiate that claim. While the Tribunal said it would have asked the applicant about those matters at the hearing if he turned up, he did not appear: at [15]. The Tribunal did not “ignore the fact of…serious harm”; it noted the claim but found it was not satisfied the applicant had substantiated what was otherwise a mere assertion. The second ground of review is not made out.

17. The reference to “material documents” in ground three is mystifying. The Tribunal only had the application form and the contents of the departmental file (including the delegate’s decision) before it, along with the relevant Country Information Report. The problem was the applicant’s failure to provide any other material documentation. It is not clear what the Tribunal missed, but there is no evidence it missed anything the applicant had provided. This ground of review must also fail.

18. That brings me back to ground one: the unparticularised assertion of jurisdictional error. The minister’s representative, Mr Hillyard, argued the decision under review was free of identifiable error. I have already pointed out I am satisfied it was open to the Tribunal to conclude it was not satisfied the applicant had supported his claims with sufficient evidence. But Mr Hillyard properly drew my attention to the issue which might arise out of the Tribunal’s election to determine the matter without further reference to the applicant pursuant to s 426A(1A)(a) of the Act rather than simply dismissing the matter for want of attendance (pursuant to s 426A(1A)(b)) or even adjourning and re-listing the matter (a possibility recognised in s 426A(2)). Mr Hillyard referred me to the decision of the Federal Court in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 in this connection.

19. DNK17 acknowledged the exercise of the discretion to proceed under s 426A(1A)(a) may have important consequences for an applicant who fails to appear. The consequences for the applicant if the Tribunal elects to hear and determine the matter are likely to be more profound, or at least more immediate. Given the Tribunal only invites the applicant to a hearing in circumstances where the Tribunal is not satisfied it has sufficient material before it to make a favourable decision, the applicant’s absence from the hearing means the Tribunal’s concerns are unlikely to be assuaged. A negative outcome will almost always result where the Tribunal elects to proceed with the hearing in the absence of the applicant pursuant to s 426A(1A)(a). The applicant’s only redress after the resulting decision has been made is to appeal on the grounds of jurisdictional error.

20. Where a matter is dismissed for non-appearance pursuant to s 426A(1A)(b), the applicant has the option to seek reinstatement within 14 days: s 426A(1B). An application for reinstatement will need to satisfy the Tribunal it is appropriate to do so in all the circumstances. The Tribunal will typically consider the merits of the applicant’s case when making its decision on reinstatement. As a practical matter, that means the Tribunal will look to whether the applicant can provide material or arguments that would address the concerns which prompted the Tribunal to convene the hearing in the first place.

21. Horan J explored the legislative history of the various options available under s 426A in DNK17 and discussed the constraints on the exercise of the discretion. His Honour said (at [99]) the exercise of the discretionary power to proceed or dismiss (or adjourn, for that matter):

    … must be within the bounds of legal reasonableness, and must have an evident and intelligible justification.

22. Where the Tribunal articulates its reasons for exercising the discretion, those reasons will provide a focus for the required analysis: DNK17 at [86]. But Horan J pointed out “[t]here is no statutory obligation on the Tribunal to provide reasons for a procedural decision not to dismiss an application under s 426A(1A)(b)”: DNK17 at [102]. Where it does not expressly articulate its reasoning on the question of discretion, one must look to “the ‘decision-making pathways’ that were reasonably open to the Tribunal”: DNK17 at [94], citing ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [21] per Kiefel CJ, Bell, Gageler and Keane JJ.

23. Sometimes an “evident and intelligible justification” will be evident or may be readily inferred from a fair reading of the reasons for decision as a whole. To put it differently, if the Tribunal’s reasons for electing to proceed are obvious enough and can be readily inferred, they will be evaluated accordingly. Provided there are rational reasons, that will be enough to sustain the decision even if a different decision-maker might have reached a different conclusion.

24. In this case, the Tribunal’s reasons for not simply adjourning and relisting the matter are not expressly articulated, but I am satisfied they can be readily inferred from the Tribunal’s recitation of the procedural history. The Tribunal had obviously reached the point where it decided it was appropriate to bring the proceedings to finality. The Tribunal had a discretionary choice to make in doing so. Should it dismiss or proceed to make a decision?

25. I have already explained the Tribunal’s ultimate conclusion was premised on its finding the applicant had failed to adequately substantiate his claims. Viewed in that light, the Tribunal’s decision to proceed when the applicant failed to appear at the hearing has an evident and intelligible justification. The applicant had failed to engage with the review by providing any evidence beyond that which was included with the application for a visa. Given that lack of engagement, one can readily infer the Tribunal was conscious it could conveniently dispose of the matter by making a decision on the material before it. I acknowledge a differently constituted Tribunal might have preferred to deal with that lacuna in the material by adopting the simpler, less consequential course of dismissing the proceedings. However, I cannot say the Tribunal’s election to proceed as it did was unreasonable.

26. The Tribunal’s adverse credit finding muddies the waters somewhat. If that adverse credit finding was essential to the outcome of the case, the Tribunal’s justification for making a decision in the absence of an opportunity to test the evidence would have been irrational, and therefore unreasonable. The Tribunal expressly acknowledged it was unfortunate it did not have the opportunity to question the applicant. As well it might: such a damning finding may be regarded as unreasonable in the absence of proper evidence which justifies such an inference: see, generally, Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 per Logan J at [11], [16]; per Flick and Perry JJ at [111], [120]. A hearing was probably necessary before the Tribunal could reasonably decide the applicant had fabricated his claim.

27. The Tribunal did not have an adequate factual basis for making what amounted to an adverse credit finding was, but that finding was in any event gratuitous because it was not essential to the Tribunal’s decision. The election to proceed was logical when the Tribunal’s ultimate conclusion – which did not depend on a finding of fabrication – was understood. To use the language of DNK17, there is a rational decision-making pathway between the election to proceed without further reference to the applicant and the Tribunal’s conclusion that the evidence was insufficient to satisfy the criteria in s 36(2) of the Act.

28. The Tribunal’s error in finding without a proper foundation that the applicant fabricated evidence is not a material jurisdictional error in the circumstances of this case. The election to proceed is intelligible and reasonable in the legal sense. This ground of appeal must fail.

    EXERCISE OF THE DISCRETION

1. While I have concluded the Tribunal’s decision is not affected by material jurisdiction error, I will deal with the question of whether it would be appropriate to provide relief if I had reached a different conclusion.

2. After the applicant unburdened himself at the commencement of the hearing, I discussed with the parties how I should proceed. The minister’s representative argued against relying on the applicant’s remarks given they were made from the bar table without the benefit of advice. Mr Hillyard said the minister would prefer that the applicant gave evidence of his new position on oath. That seemed reasonable, although I was concerned the applicant should be cautioned before proceeding to answer any questions. I decided to adjourn the matter so representation could be arranged for the applicant. In due course, Mr Redmond was briefed to appear for the applicant on a pro bono basis. I am grateful to him for appearing and providing submissions.

3. When the hearing was resumed, Mr BKY19 entered the box to be questioned by Mr Hillyard. As it turned out, Mr BKY19 essentially confirmed the statements he made from the bar table on the first day. He acknowledged the claims he made in the protection visa application were, in fact, fabricated by someone else (albeit without his knowledge). He made clear he did not have any factual basis for seeking a protection visa. As he explained on the first day of the hearing, his objective was to get a different type of visa that would permit him to stay and work in Australia.

4. It seems to me there would be no utility in remitting the matter to the Tribunal for reconsideration in those circumstances. The applicant has acknowledged there is no basis for claiming protection; whether he could possibly succeed in an application for a different kind of visa will depend on the outcome of a different process. In any event, the application for judicial review must be dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

Associate:

Dated:       22 May 2025