BNR17 v Minister for Immigration and Anor
[2018] FCCA 3974
•25 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNR17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3974 |
| Catchwords: MIGRATION – Protection (Class XA (Subclass 866)) Visa Application – review of a decision of the Administrative Appeals Tribunal – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 425 Migration Regulations 1994 (Cth), Sch.2 |
| Cases cited: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 Craig v State of South Australia (1995) 39 ALD 193 Minister for Immigration and Citizenship v Li [2013] HCA 18 |
| Applicant: | BNR17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1077 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 22 June 2018 |
| Date of Last Submission: | 22 June 2018 |
| Delivered at: | Perth |
| Delivered on: | 25 June 2018 |
REPRESENTATION
| The Applicant: | Appearing via telephone link |
| Counsel for the First Respondent: | Mr J. Ferguson |
| Solicitor for the First Respondent: | MinterEllison |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The applicant’s originating application filed 10 April 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
SYG 1077 of 2017
| BNR17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
Introduction
By application filed in this Court on 10 April 2017, the applicant seeks the issue of constitutional writs in relation to a decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 15 March 2017.
The applicant is a citizen of Malaysia. She applied for a Protection (Class XA (Subclass 866)) visa (“Protection Visa”) on 31 March 2016: Court Book (“CB”) 1-38.
In her application for a Protection Visa, the applicant claimed to fear harm in Malaysia because of incidents that she said occurred prior to her arriving in Australia. She claimed money lenders had assaulted her in public and, although she tried to report them to the police, they would not take action: CB 98 at [16].
The Tribunal affirmed a decision made by a ministerial delegate not to grant the applicant a Protection Visa.
The applicant seeks judicial review in this Court. She relies on three grounds of review.
1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her returns to Malaysia
2. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
3. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
In addition to her application for judicial review, the applicant swore an affidavit dated 9 April 2017 which reads as follows:
1. I am a Malaysian citizen arrived in Australia and applied for protection visa under the Refugee Convention.
2. I left the country fear of persecution. My ex-husband borrowed money from loan shark and disappeared. I was the guarantor and I was beaten by them in the morning near my house and humiliated (sic) me in front of the public. I reported the matter to MCA association and asked protection from police but they could not guarantee me from further attack.
3. The Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and the consequences of the claim. Herewith I attached AAT decision.
The question for this Court is whether the Tribunal fell into jurisdictional error in the manner alleged by the applicant.
The Court had before it a Court Book numbering 102 pages. The Court also had written submissions from the Minister dated 25 May 2018.
The applicant did not provide any written submissions or additional evidence or further particulars in relation to her grounds of review, despite having been given an opportunity to do so by a Registrar of this Court on 28 July 2017.
The applicant was not legally represented in this Court. She appeared with the assistance of an interpreter. The Court thanks the interpreter for her assistance.
Synopsis
For the reasons set out below, the Court finds that the Tribunal did not fall into jurisdictional error. Consequently, the application for judicial review is dismissed.
The Tribunal’s Decision
The applicant was formally invited to, and did attend, a hearing before the Tribunal on 14 March 2017 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. Regrettably, it does not appear that the applicant had any legal assistance of any sort at the hearing.
In its decision, the Tribunal outlined the initial claims for protection made by the applicant in her visa application and the issues relevant to the Tribunal’s review of the delegate’s decision (CB 97) as follows:
11.The applicant presented her initial claims for protection in her visa application on 31 March 2016 as follows,
Why did you leave that country?
Because my ex husband loan a lot of money from loan shark. He disappear and I am the guarantor so the loan shark force me to pay or they will hurt me again.
What do you think will happen to you if you return to that country?
The loan shark will beat me and force do illegal things.
Did you experience harm in that country?
Yes. The loan shark beat me in morning market near my house and humiliate me in public.
Did you seek help within the country after the harm?
Yes. I go to MCA Association seek for help they bring me to police station to make report but they could not protect me any further form the loan shark.
Did you move, or try to move to another part of the country?
No. I have nobody except my sister but I do not want her to involve.
Do you think you will be harmed or mistreated if you return to your country?
Yes. The loan shark will hurt me unless I pay them or help them to do illegal thing.
Do you think the authorities of that country can and will protect you if you go back?
No. I have go to report police but no further action bus taken from the force to protect me. Maybe they want extra money.
Do you think you would be able to relocate within the country?
Yes. As far like Australia, I think the police and government service is much better than mine. And I will feel very safe here.
[errors in original]
12.The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Malaysia, there is a real risk that she will suffer significant harm.
The Court notes that this summary corresponds to the information in the applicant’s Protection Visa application (CB 32-34) and the delegate’s summary of the applicant’s protection claims (CB 44).
Under the heading ‘Criteria for a Protection Visa’, the Tribunal outlined the criteria for the visa as set out in s.36 of the Migration Act 1958 (Cth) (the “Act”) and Schedule 2 to the Migration Regulations 1994 (Cth). This analysis appears in the Tribunal’s decision at CB 96 at [4]-[8]. Relevantly, the Tribunal noted the provisions as they appear in ss.36, 5H and 5J of the Act. The Tribunal also outlined the mandatory considerations to be analysed by it and, in particular, the scope of Ministerial Direction No. 56: CB 97 at [9].
The Tribunal made numerous adverse credibility findings in relation to the applicant (CB 98-99) as follows:
15.At the Tribunal hearing the applicant said she left Malaysia in December 2015 because her ex-husband could not fulfil his family responsibilities financially and he had assaulted her in the past, since not long after their marriage in 2008. She said he was with the underworld, and had gambling and drinking problems, both before and after their divorce in 2013. He also had a bad temper. The applicant made no mention of her husband being violent towards her in the past and fearing him on return in her protection visa application. She said at hearing this was because her English was not that good. However this does not explain why her written claims to the Department are fundamentally different to what she told the Tribunal at hearing. Further, the applicant’s oral evidence about the problems she allegedly experienced in her marriage (and after), including being assaulted was vague and lacking in detail. For example she said her ex-husband assaulted her but did not provide any further details such as when this occurred, whether it took place more than once, or indicate the context, despite being asked numerous times. Her oral evidence was also internally contradictory at times. For instance she initially told the Tribunal that she lost contact with her ex-husband after they divorced in 2013 and her daughter has no contact with him however later in the hearing she said that her ex-husband continued to cause her problems after her divorce (she did not specify the nature of the problems). For these reasons the Tribunal does not accept the applicant’s claim that her ex-husband caused problems for her in the past, including being violent toward her, and finds she does not face a real chance of serious harm from her ex-husband on return to Malaysia.
16.At hearing the applicant said she is also afraid of loan sharks whom her ex-husband owes money to. They wanted her to repay his debt but she was not in a position to do so. The applicant said the loan sharks threatened to take away her daughter and force her into prostitution. She was assaulted by three to five loan sharks. They also threatened her with death over the telephone. She tried reporting the loan sharks to the police but they would not take any action.
17.For the reasons that follow the Tribunal has a number of concerns with the applicant’s claims to have an outstanding debt with loan sharks whom her ex-husband borrowed money from and to have been threatened and harmed by them in the past in Malaysia.
18.First, there are inconsistencies between the applicant’s written claims to the Department and oral evidence to the Tribunal in some respects. For example in the visa application the applicant stated that her husband disappeared however at hearing she did not indicate that he had disappeared.
19.Second, the applicant failed to mention that her claims with respect to the money lenders at all initially at the Tribunal hearing, instead focusing on problems she allegedly had with her ex-husband being violent toward her and financially irresponsible. It was only when the Tribunal asked about her written claims in the visa application that she said she had these fears.
20.Third, the applicant’s oral evidence about the circumstances of the loan, the terms of the loan, and the alleged threats and assaults she received from loan sharks was very vague and at times evasive. For instance, she did not know how much money in total her husband borrowed, apart from stating she thought it was more than “1 million”, nor the terms of the loan such as when it had to be repaid, or the interest amount, or the outstanding debt. She said there were more than one loan sharks but did not know how many or provide any other details. She said she does not know the details because her husband took out the loans. Even if the Tribunal accepts her explanation in this regard, it notes that her oral evidence about being assaulted (when three months pregnant) and threatened by the loan sharks was also very vague. For instance she said she was assaulted by three to five loan sharks but was unable to state where this occurred, if she was injured or if there was any follow up. Further, she stated that the loan sharks threatened her with death over the phone but was unable to state when this began, over what period, the nature of the threats or provide any further details or context.
The Tribunal indicated that, as a result of the concerns outlined above, it did not find the applicant to be a credible witness (CB 99):
21.Given these concerns, and as discussed at hearing, the Tribunal does not accept the applicant is a credible witness. For the reasons set out above, the Tribunal does not accept the applicant’s claims that her ex-husband borrowed money from illegal money lenders in the past in Malaysia or that she has any outstanding debts to money lenders. It follows that the Tribunal does not accept that the applicant was assaulted by money lenders when pregnant or at any time, threatened by money lenders, or that they tried to force her into prostitution or take her daughter as claimed.
For the reasons outlined above, the Tribunal rejected the applicant’s protection claims and found that she would not face a real chance of persecution from money lenders (or anyone associated with them) or from her ex-husband. Consequently, the Tribunal found the applicant did not have a well-founded fear of persecution and, therefore, she did not meet the definition of a refugee in the Act (CB 99).
For the same reasons as those outlined above, the Tribunal found that the applicant also did not satisfy the complementary protection criteria in s.36(2)(aa) of the Act (CB 99).
The Tribunal, accordingly, affirmed the decision of the ministerial delegate not to grant the applicant the Protection Visa she was seeking.
What Constitutes Jurisdictional Error?
The relief claimed by the applicant in relation to this matter can only be granted if the Tribunal’s decision is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 2011 CLR 476 at 506.
The onus is on an applicant to establish jurisdictional error.
The Court noted that the applicant was not legally represented and did not have a clear appreciation of what it was this Court could and could not do. It was also apparent that she had not completed, or fully articulated, the grounds of review in her application for judicial review.
The Court explained to the applicant what it means when it refers to “jurisdictional error”, and took the applicant through the categories of jurisdictional error. The Court explained that these are not exhaustive, sometimes overlap and, for migration decisions, most commonly include the following categories:
a)Where the decision maker identifies the wrong issue or asks the wrong question (see Craig v State of South Australia (1995) 39 ALD 193 (“Craig”) at 198).
b)Where the decision maker ignores relevant material (see Craig at 198).
c)Where the decision maker relies on irrelevant material (see Craig at 198).
d)Where the decision maker fails to follow mandatory procedures (see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208]).
e)Where the decision maker fails to consider the entirety of an applicant’s claims (or “integers” of the claims) as made (see Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22]).
f)Where the decision maker shows actual or apprehended bias (see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17]).
g)Where the decision is illogical, irrational or unreasonable (see Minister for Immigration v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”) at [26]-[28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44]).
Unrepresented applicants with a poor grasp of the English language rarely understand language of the sort used above. The applicant was, accordingly, asked to explain what, in her opinion, she felt the Tribunal “did wrong”. In this context, the Court explained that the Court could not undertake “merits review” – meaning that the Court cannot simply look at the evidence before the Tribunal, come to a different conclusion and give the applicant the visa she seeks: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Did The Tribunal Fall Into Jurisdictional Error?
As explained above, in her application for review, the applicant advances three grounds of judicial review. These are assessed below.
Ground 1
The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her returns to Malaysia
Section 36(2A) of the Act reads:
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non-citizen will be subjected to degrading treatment or punishment.
In relation to ground 1, the Minister contended as follows in written submissions dated 15 June 2018:
12.Ground one does not identify how the Tribunal is alleged to have misconstrued subsection 36(2A) of the Act. In substance, it appears to be nothing more than an expression of the applicant’s disagreement with the Tribunal’s conclusion that the applicant did not face a real risk of significant harm, as defined in subsection 36(2A). The Minister submits that, having reached the factual findings that it did about the applicant’s protection claims, the Tribunal did not misconstrue the risk and fear of significant harm to the applicant in circumstances where the Tribunal rejected the applicant’s material claims and considered that there was no credible evidence before it to suggest that the applicant feared significant or serious harm upon her return to Malaysia.
The applicant was asked to explain what she meant in relation to ground 1. Unfortunately, she was unable to provide clarification or any further assistance.
The Court agrees with the Minister’s submission as above.
The Court notes the applicant’s statement in her affidavit that “[t]he Tribunal decision was unjust and made without taking into account the full gravity of my circumstances and the consequences of the claim”.
On one level, it is arguable that what the applicant seeks here is for the Court to engage in merits review – something which, as explained to the applicant, this Court cannot do.
It is also arguable that what the applicant is saying is that the Tribunal failed to take into account relevant evidence about the harm she would face, or that the Tribunal relied on irrelevant evidence.
That contention is not supported. There is nothing before this Court that suggests that the Tribunal made any error in this regard.
At its core, the Tribunal made the decision it made because it found the applicant to lack credibility. The Court notes that the Tribunal did discuss its concerns with the applicant’s evidence with her at the Tribunal hearing: CB 99 at [21]. Ultimately, the Tribunal determined that the evidence that it had before it did not support the applicant’s protection claims – all of which were carefully considered by the Tribunal. The Tribunal discussed its concerns and, ultimately, determined that the evidence did not support the applicant’s protection claims. That finding was open on the evidence before the Tribunal.
Ground 1, accordingly, fails.
Ground 2
The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
In relation to Ground 2, the Minister contended as follows in his written submissions:
13.The Tribunal’s obligation under section 424A of the Act is only engaged where the Tribunal has before it ‘information’ it considers ‘would be the reason, or a part of the reason, for affirming the decision that is under review’. To constitute ‘information’ for the purposes of subsection 424A(1), the material must contain in its terms a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (SZBYR) at [17]). Information is also ‘related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence’ (SZBYR at [18]).
14.The applicant has not identified what material before the Tribunal constituted ‘information’ such that its obligation in section 424A was engaged and the Minister submits that there was no such ‘information’. The only material relied on by the Tribunal was the applicant’s claims and evidence, and certain sources of country information. Neither category of material engages the obligation in subsection 424A(1) (see subsection 424A(3)). The Tribunal’s ‘subjective appraisals, thought processes or determinations’ or the deficiencies it identifies in an applicant’s evidence, does not constitute ‘information’ (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 at [24] per Finn and Stone JJ; SZBYR at [18]). Section 424AA does not impose a separate obligation to that imposed by section 424A, but is instead an alternative method by which the Tribunal can discharge that obligation. Accordingly, the Minister submits that the Tribunal did not fail to comply with its statutory procedural fairness obligations.
The applicant was asked to comment. She said she may have expressed ground 2 incorrectly, but was unable to clarify what she meant. Nor was she able to explain what, in her opinion, the Tribunal did wrong procedurally.
In accordance with s.425 of the Act, the applicant was invited to, and did attend, a hearing before the Tribunal. She was assisted by an interpreter. The applicant was advised by the Tribunal that it had received her application: CB 61-67, 70-78 and 84-85. These letters make it clear that the applicant could present written arguments and evidence. It is evident that all legislatively mandated procedures were followed by the Tribunal.
The Court also notes, relevantly, the provisions in s.424A of the Act, and agrees with the Minister that there was no adverse information that was required to be given to the applicant under s.424A.
The applicant did not, and was not able to, indicate what information she had been denied access to or what information should have been put to her.
There is, in the circumstances, no evidence before the Court to indicate that the Tribunal did not adhere to any of the procedural requirements that govern it.
Accordingly, ground 2, like ground 1 above, fails.
Ground 3
The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
In relation to ground 3, the Court notes the Minister’s written submissions as follows:
15.The Minister submits that the complaint in ground three is without substance and sufficient particularity and does not raise an arguable jurisdictional error. The Tribunal was required to refuse to grant the applicant’s protection visa application because it was not satisfied that the applicant met the prescribed criteria for the grant of the visa (subsection 65(1) of the Act). The Minister submits that the Tribunal’s conclusions that the prescribed criteria—paragraphs 36(2)(a) and (aa)—were not met were reasonably open to it on the material before it and for the reasons it gave. The Tribunal plainly had jurisdiction to review the delegate’s decision and, in the Minister’s submission, reached a decision that was open to it in law. In substance, this ground is nothing more than an expression of the applicant’s disagreement with that decision and is therefore an invitation for the Court to engage in impermissible merits review.
In relation to ground 3, the applicant simply stated in Court that she was unsure about what she meant. Regrettably, she was unable to provide any clarification or further information that might assist the Court in understanding her concerns.
The Court agrees with the Minister that the applicant seems here to simply disagree with the Tribunal’s decision. She would, it seems, like this Court to engage in a review of the merits of the Tribunal’s decision. As explained above, this Court cannot do that.
It is also arguable that what the applicant is saying is that the Tribunal’s decision is illogical or irrational or unreasonable. In effect, she believes the Tribunal’s decision is irrational because the evidence before the Tribunal does not support the Tribunal’s ultimate conclusion.
In this regard, the Court is guided by the decisions in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58, Li and SZMDS.
In SZMDS, Crennan and Bell JJ (at [131]) set out the test for irrationality or illogicality, as follows:
[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Further, in SZMDS, Crennan and Bell JJ (at [135]) added that:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
Li and SZMDS set a very high threshold for findings of unreasonableness, irrationality or illogicality. Here, it cannot be said that only one conclusion was open to the Tribunal, namely to accept the applicant’s claims. Nor can it be said that the impugned finding was not open to the Tribunal. The Tribunal correctly identified the applicant’s claims. It was guided by the law relevant to determinations of this sort and addressed all of the evidence before it. The Tribunal asked questions of the applicant in relation to her evidence, put its concerns to her, and found her to lack credibility. Without evidence to support her protections claims, her case had no substance. In the circumstances, the Tribunal’s ultimate finding was open to it on the evidence before it.
Conclusion
For the reasons outlined above, the Court finds that the Tribunal did not commit jurisdictional error of the sort outlined by the applicant.
Accordingly, the applicant’s application for judicial review dated 10 April 2017 is dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 March 2019
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