BPD16 v Minister for Immigration
[2018] FCCA 3293
•20 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPD16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3293 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – decision of delegate refusing Protection (Class XA) visas affirmed – whether bias – whether denial of procedural fairness when husband and wife joint applicants separated at hearing and each asked questions about the other – whether wrong question or issue raised and addressed – whether error in invitation to Tribunal hearing where invitation sent to one applicant’s email account only – whether jurisdictional error. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.32 Migration Regulations 1994 (Cth) |
| Cases cited: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 |
| First Applicant: | BPD16 |
| Second Applicant: | BPE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 279 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 21 November 2017 |
| Date of Last Submission: | 21 November 2017 |
| Delivered at: | Perth |
| Delivered on: | 20 November 2018 |
REPRESENTATION
| For the First Applicant: | In person with the assistance of an interpreter |
| For the Second Applicant | In person with the assistance of an interpreter |
| Counsel for the First Respondent: | Ms M Jackson |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 279 of 2016
| BPD16 |
First Applicant
| BPE16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The husband and wife applicants in these proceedings seek judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 3 June 2016. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) affirming the Delegate’s Decision to not grant the applicants Protection (Class XA) visas (“Protection Visas”).
The Tribunal Decision appears at Court Book (“CB”) 123-134.
Factual and procedural background
The factual and procedural background to the Judicial Review Application is as follows:
a)the applicants are both citizens of Malaysia, and the second applicant is the wife of the first applicant: CB 2, 14, 29, 35 and 36;
b)the applicants arrived in Australia on 24 May 2013 as holders of Electronic Travel Authorities (Class UD, Subclass 601): CB 71;
c)the applicants remained in Australia unlawfully from 24 August 2013 until they made an application for Protection Visas on 12 November 2014: CB 71;
d)the first applicant made his own claims for protection and the second applicant was included in the application as a member of the same family unit: CB 1-34 and 59;
e)on 10 February 2015 the Delegate refused to grant the applicants Protection Visas: CB 61-77;
f)on 2 March 2015 the applicants lodged an application for review by the Tribunal: CB 78-79;
g)on 30 May 2016 the applicants attended a hearing before the Tribunal (“Tribunal Hearing”): CB 114-115;
h)on 3 June 2016 the Tribunal Decision was to affirm the Delegate’s Decision not to grant the applicants Protection Visas: CB 123-134; and
i)on 27 June 2016 the applicants lodged the Judicial Review Application in this Court.
Further factual and procedural background – the Tribunal Hearing
For reasons which will become apparent in relation to Grounds 2 and 3 and the oral submissions made at hearing by the applicants, it is necessary to set out further detail of the factual and procedural background in relation to the Tribunal Hearing and the processes leading to the Tribunal Hearing.
On 2 March 2015 the application for review was lodged with the then Refugee Review Tribunal (which subsequently became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2): CB 78-80 (“Tribunal Review Application Form”). The Tribunal Review Application Form required the setting out of the details of the person or persons applying for review by the Tribunal, and in this case gave the details of two people, being the applicants: CB 78-79.
The Tribunal Review Application Form also seeks:
a)details of an applicant’s “Capacity to apply for Review”, and in this case the answer to that was “Visa applicant(s)”: CB 79; and
b)the “Correspondence details” of an applicant. In that regard, the Tribunal Review Application Form was completed as follows:
i)as to “Correspondence type” it was indicated that it was “To the review applicant”: CB 79;
ii)the name and address provided for the “Correspondence details” were the name of the first applicant and an address in a town in south-eastern regional Victoria: CB 79; and
iii)an email address was provided for correspondence to be sent to: CB 79 (“Applicants’ Email Address”).
On 4 March 2015 the Tribunal sent an email (“4 March 2015 Email”) to the Applicants’ Email Address, but referring only to the first applicant in the subject line, and addressed only to the first applicant. The 4 March 2015 Email indicated that the Tribunal was writing in relation to the application for review by the Tribunal, and exhorted the first applicant to “read the attached correspondence carefully, noting that the tribunal may require a response from you before a certain date”: CB 87.
The letter attached to the 4 March 2015 Email, also dated 4 March 2015 (“4 March 2015 Letter”), was addressed only to the first applicant, but at the Applicants’ Email Address, but:
i)in the salutation line was addressed to both the first and second applicants;
ii)in the bolded subject line which commenced “ACKNOWLEDGEMENT OF APPLICATIONS” went on to refer to both applicants setting out their full names; and
iii)in the first paragraph referred to the fact that the Tribunal had “received your applications for review, in relation to decisions to refuse to grant Protection (Class XA) visas, on 2 March 2015”: CB 88.
On 2 February 2016 the Tribunal sent an email (“2 February 2016 Email”) to the first applicant at the Applicants’ Email Address, and addressed only to the first applicant, in relation to the provision of an interpreter, requesting that the Tribunal be supplied with the required language and dialect of the interpreter as soon as was practicable: CB 95.
On 23 March 2016 the Tribunal again sent an email (“23 March 2016 Email”) to the Applicants’ Email Address, again referring only to the first applicant, and addressed to the first applicant, and which exhorted the first applicant to “read the attached correspondence carefully, noting that we may require a response from you before a certain date”: CB 96.
The correspondence attached to the 23 March 2016 Email is an invitation to attend a hearing before the Tribunal (“First Tribunal Hearing Invitation”). The First Tribunal Hearing Invitation is also dated 23 March 2016, addressed only to the first applicant, at the Applicants’ Email Address, but as with the 4 March 2015 Letter it then goes on to refer to both of the applicants in:
a)the salutation; and
b)the subject line which begins “INVITATION TO ATTEND A HEARING”, wherein the full names of both applicants are included: CB 97.
The First Tribunal Hearing Invitation then goes on to refer to “your application for review”, and that “You are invited to appear before the … Tribunal … to give evidence and present arguments relating to the issues in your case”: CB 97, and then sets out a date and time in Melbourne for that hearing.
The First Tribunal Hearing Invitation goes on to request that the person or persons to whom it was sent “… read, complete and return the enclosed ‘Response to hearing invitation – MR Division’ form to confirm your attendance at the hearing”: CB 97 (“First Response to Hearing Invitation Form”). The First Response to Hearing Invitation Form attached to the 23 March 2016 Letter asked whether each of the applicants would take part in the hearing then scheduled for 2 May 2016. The response form asked the person completing it to:
(Please indicate ‘Yes’ or “No’ for each review applicant.)
and then provides appropriate yes and no boxes to be ticked as required for each of the applicants, who are individually and fully named: CB 103.
On 4 April 2016 an email was sent to the Tribunal by a person with the same surname as the first and second applicants, but with a seemingly different forename: CB 106 (“4 April 2016 Email”). The 4 April 2016 Email was however sent from the Applicants’ Email Address: see a further copy of that email at CB 107-108. The 4 April 2016 Email was written in the first person, and refers to the “interview arranged for 2 May 2016”, and seeks that the place of the interview be changed to Perth (rather than Melbourne) because the “writer” of the 4 April 2016 Email had moved to Perth.
A “Refugee Hearing Record” in relation to “a hearing of an application by … [first applicant named], … [second applicant named], … , held on 2 May 2016” is overwritten with the words “No show”: CB 109.
On 5 May 2016 the Tribunal sent to the Applicants’ Email Address a further email (“5 May 2016 Email”): CB 110. The 5 May 2016 Email named only the first applicant in its subject line, was addressed to the first applicant only, and its text was in the same terms as the 23 March 2016 Email.
The correspondence attached to the 5 May 2016 Email is a further Tribunal Hearing invitation (“Second Tribunal Hearing Invitation”): CB 111-112, and is in the same terms as the First Tribunal Hearing Invitation save that it provides for a new hearing date and time of 11.30am on 30 May 2016 before the Tribunal in Perth, with the member and an interpreter in Melbourne. The Second Tribunal Hearing Invitation also acknowledges the request for postponement contained in the 4 April 2016 Email. The Second Tribunal Hearing Invitation also contained a specific note at CB 112 indicating that:
Applicants should bring their passport(s) (if available) to the hearing.
The Second Tribunal Hearing Invitation also indicated that there was “a new ‘Response to hearing invitation – MR Division’ form” (“Second Response to Hearing Invitation Form”) enclosed with the Second Tribunal Hearing Invitation, and requesting that that form be read and completed “to confirm your attendance at the hearing”: CB 112. No copy of the Second Response to Hearing Invitation Form appears in the CB as an attachment to the Second Tribunal Hearing Invitation, or at all. If the applicants were sent the Second Response to Hearing Invitation Form then it does not appear that the Second Response to Hearing Invitation Form was ever completed or returned to the Tribunal by the applicants.
The “MRD Hearing Record” for the Tribunal Hearing indicates that:
a)it is “a hearing of an application by … [first applicant named], … [second applicant named], … held on 30 May 2016”: CB 114;
b)indicates that the first applicant in his role as “Primary review applicant” was present and took an affirmation in relation to his evidence, and that the second applicant in her role as a “Visa applicant” was present and also took an affirmation in relation to her evidence: CB 114; and
c)the hearing opened at 1.42pm, was adjourned at 3.17pm, resumed at 3.44pm and closed at 4.15pm: CB 115 and 116.
It does not appear from the MRD Hearing Record that the applicants were represented at the Tribunal Hearing.
Tribunal Decision
The Tribunal observed that the protection claims were made by the first applicant, and that the second applicant made no claims on her own in relation to protection: CB 124 at [5], and went on to set out the first applicant’s written reasons for claiming protection as contained in the Protection Visas application form as follows:
a)he left Malaysia because he had been blackmailed by mafia gangsters and had received threats;
b)the mafia gangsters threatened him and used a knife and hurt him;
c)he fears returning to Malaysia and says that the mafia gangsters say that if they see the first applicant again they will “cut him into pieces”;
d)the first applicant thinks the mafia gangsters may harm or mistreat him if he goes back to Malaysia, and he thinks this because his sister told him the mafia gangsters go every day to her house looking for him, and have told his sister that if he does not pay the protection money he owes they will not stop looking for him; and
e)the authorities in Malaysia cannot and will not protect him if he returns, and the police do not do anything to protect him and his family because the mafia gangsters keep on coming to harm him: CB 124 at [6].
In relation to the conduct of the Tribunal Hearing and the claims made during the Tribunal Hearing, the Tribunal observed as follows in the Tribunal Decision at CB 125 at [10]-[11]:
10. The applicants appeared before the Tribunal on 30 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
11. During the hearing the first named applicant provided a copy of a photograph of his fruit and vegetable stall in Malaysia. He told the Tribunal he feared returning to Malaysia because when he ran his own hawker stall selling fruit and vegetables he had a problem with the local mafia who demanded money from him, and when he was unable to pay they beat him. The applicant told the Tribunal he feared returning to Malaysia because he had disobeyed the local mafia and did not pay them and fought with them and they have threatened that if he returns they will hurt him in a very bad way. He told the Tribunal if he returns to Malaysia his family will try to protect him and they may be harmed and he would be unable to run his business. The second named applicant told the Tribunal if they return to Malaysia she is concerned for her husband, the first named applicant, and they will be unable to run their business and will have no protection because they are of Chinese ethnicity.
The Tribunal set out in conventional terms the relevant law in relation to the refugee criterion, complementary protection criterion, and noted a Ministerial Direction made under s.499 of the Migration Act, and those provisions of the Migration Act dealing with members of the same family unit as a non-citizen holding a Protection Visa: CB 125-127 at [12]-[27].
The Tribunal found that the applicants were, as they claimed, citizens of Malaysia, and did so on the basis of copies of Malaysian passports previously provided to the Department of Immigration & Border Protection (“Department”): CB 127 at [28].
The Tribunal dealt extensively with the issue of the credibility of the applicants: CB 127-132 at [29]-[50].
The Tribunal observed that it discussed with the applicants “their background in Malaysia, family composition, employment and travel history” and that it questioned each applicant in detail “about the incidents with the local mafia and why they decided to close their business and leave Malaysia and what has happened since that time”: CB 127-128 at [29].
The Tribunal set out its questioning of both the first and second applicants in relation to the incidents in relation to the local mafia and their decision to close their business which were the subject of the first applicant’s protection claims: CB 128-129 at [31]-[33].
As a consequence of the evidence given by the first and second applicants the Tribunal then raised concerns about the differences between the applicants’ oral evidence to the Tribunal: CB 129 at [34].
The Tribunal raised with the first applicant the differences between his evidence and that of the second applicant in relation to:
a)the number of times the first applicant was assaulted;
b)the injuries sustained by the first applicant;
c)the year and month the assaults on the first applicant occurred;
d)when the applicants’ business was closed; and
e)the second applicant’s oral evidence which did not mention people coming to the applicants’ home after the business was closed looking for the first applicant and threatening him: CB 129 at [35] and [37].
The Tribunal notes that the first applicant’s response was to say that “he can’t remember everything in detail” and that he had a “problem with his short term memory”, in relation to which he had not seen a doctor and was not taking any medication: CB 129 at [36]. The Tribunal observed that the first applicant was able to confirm the dates he left Malaysia, when he arrived in Australia, when he made the Protection Visas application, and that he gave detailed evidence as to family composition, where his family members lived, his education and work history (which included years and dates he spent working in different positions): CB 129 at [36]. Having regard to that evidence, the Tribunal did not accept that the first applicant had a problem with his memory: CB 129 at [36].
The Tribunal raised the same concerns with the second applicant as to the difference between her evidence and that of the first applicant, which the second applicant endeavoured to explain by saying that she was not working, and stayed home most of the time, did not go outside, and that her husband handled everything: CB 130 at [39], and that she was unable to remember exact dates of incidents, and that she only worked at the fruit and vegetable store when it was really busy: CB 130 at [39]-[40].
The Tribunal considered that the differences between the first and second applicant’s oral evidence concerning the above matters reflected poorly on their credibility and the reliability of their evidence: CB 129 at [37] and 130 at [41].
The Tribunal also raised concerns about differences between the first applicant’s oral evidence and the Protection Visas application form concerning mafia gangsters visits, which the first applicant told the Tribunal were continuing at his sister’s home, but not anywhere else, whereas in the Protection Visas application form the first applicant had indicated that his sister had told him that the mafia gangsters visited the first applicant’s house every day looking for him: CB 130 at [42]. Again, the first applicant endeavoured to deal with this by way of claims concerning his memory, which the Tribunal did not accept, and the Tribunal indicated that the differences between the oral evidence and the written information reflected poorly on the first applicant’s credibility and the reliability of his evidence: CB 130 at [43].
The Tribunal also raised its concerns with the first applicant and the second applicant concerning the delay in making the Protection Visas application, noting that they arrived in Australia on 24 May 2013 and did not make the Protection Visas application until 12 November 2014, a delay which the applicants put down to a lack of knowledge concerning the ability to apply for a Protection Visa until the first applicant saw a news report about a Malaysian person who had applied for protection, and about which he told the second applicant, who then browsed the Department’s website, following which they decided to make the Protection Visas application: CB 130-131 at [44]-[46].
The Tribunal indicated that it was not persuaded by the applicants’ response in relation to their delay in making a Protection Visas application, and that it would have expected, given the nature of their claimed situation in relation to fear of harm in Malaysia, that they would have sourced information about protection in Australia with less delay, and that the failure to do so reflected on their credibility and the reliability of their evidence to fear returning to Malaysia: CB 131 at [47].
The Tribunal also made lengthy observations concerning the Department of Foreign Affairs & Trade (“DFAT”) country report on Malaysia published in 2014 (“2014 DFAT Report”), and observed that it did not support the applicants’ claims with respect to:
a)the conduct of the police in Malaysia, which is described in the 2014 DFAT Report as “a professional and effective police force”: CB 131 at [48]; and
b)that there are not laws or constitutional provisions directly discriminating against ethnic Chinese in Malaysia and that generally they do not experience discrimination or violence on a day-to-day basis: CB 131 at [48], and put those observations to the first applicant and the second applicant: CB 131 at [49],
before going on to observe that the sources relied upon for the 2014 DFAT Report were authoritative, and that the applicants’ claims concerning the police and discrimination reflected poorly on their credibility and the reliability of their evidence: CB 131-132 at [50].
In the Tribunal Decision the Tribunal, in relation to the refugee criterion:
a)accepted that the applicants may have run a small business selling fruit and vegetables, but did not accept that the first applicant was required to pay protection money to the local mafia, or that he was assaulted or beaten when he refused to pay an increased amount of protection money: CB 132 at [53];
b)did not accept that the applicants reported the incident to the police or that the police refused to deal with the matter because the applicants were of Chinese ethnicity: CB 132 at [53];
c)did not accept that people came looking for the first applicant at his home after he closed his business or that the applicants were hiding and living in fear of harm in Malaysia: CB 132 at [53];
d)did not accept that people visited the first applicant’s sister’s home looking for the first applicant, and did not accept that the applicants experienced discrimination in Malaysia: CB 132 at [53];
e)did not accept that there is a real chance that the applicants would be approached, harassed, threatened or harmed by local mafia or Muslims in the reasonably foreseeable future if they returned to Malaysia: CB 132 at [54];
f)considered that if the applicants returned to Malaysia the chance of the applicants facing serious harm due to their Chinese ethnicity is remote: CB 133 at [55];
g)did not accept that there is a real chance that the applicants would be unable to run a business if they returned to Malaysia: CB 133 at [56];
h)was not satisfied that there was a real chance that the applicants would be discriminated against, or would be unable to access the services and protection of the police in Malaysia if required: CB 133 at [57];
i)was not satisfied that there is a real chance that the applicants would suffer serious harm, or any harm, for any of the reasons they have claimed, or for other reasons if they returned to Malaysia in the foreseeable future: CB 133 at [58]; and
j)found that the applicants did not have a well-founded fear of persecution: CB 133 at [60], and was not satisfied that Australia had protection obligations under s.36(2)(a) of the Migration Act in respect of the applicants: CB 133 at [61].
In the Tribunal Decision the Tribunal, in relation to the complementary protection criteria:
a)had regard to the same evidence that was considered in relation to the refugee protection criteria, and made the same observations as to the applicants’ credibility and the reliability of their evidence: CB 133-134 at [63]-[65];
b)on the basis of the evidence before it was not satisfied that the first applicant or the second applicant would suffer significant harm, or harm of any kind, if returned to Malaysia, or that they would be arbitrarily deprived of their life, be the subject of the death penalty, or that they would be subject to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, if returned to Malaysia: CB 134 at [66]-[67]; and
c)was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that either of the applicants will suffer significant harm, and was not satisfied that Australia had protection obligations under s.36(2)(aa) of the Migration Act in respect of the applicants: CB 134 at [68].
The Tribunal affirmed the Delegate’s Decision not to grant the applicants Protection Visas: CB 134 at [71].
Judicial Review Application
The four grounds (Grounds 1, 2, 3 and 4 respectively) of the Judicial Review Application as filed are as follows:
1.AAT has bias against me and my partner.
2.AAT was not fair by separating me and my partner in the hearing.
3.AAT asked my partner about my claims which is not fair and can’t use this to discredit me.
4.AAT said the persecution implies an element of motivation which is not right on the law as the racial attack doesn’t require motivation.
Pursuant to orders made by a Registrar of this Court on 20 July 2016 (“Registrar’s Orders”) the applicants were permitted to file and serve an amended Judicial Review Application providing particulars of the grounds or review, and any further affidavits, by 28 September 2016. The applicants were also required to file written submissions 42 days before the hearing date. The applicants have not filed any amended Judicial Review Application, further affidavits or submissions in accordance with the Registrar’s Orders. In accordance with the Registrar’s Orders the Minister filed written submissions not less than 21 days before hearing.
Applicants’ submissions
The following oral submissions were made by the applicants:
a)the refusal was unfair;
b)when interviewed the applicants were not in the room together so that the Tribunal could compare what they each said, and then the Tribunal later said that what the first applicant described was different to what the second applicant had described;
c)the applicants did not think that the delay of 12 months to apply for the Protection Visas was a delay;
d)the Tribunal Hearing Invitation (the applicants did not distinguish between the First or Second Tribunal Hearing Invitations, but for these purposes it is immaterial as the relevant terms of the Invitations were the same) was addressed only to the first applicant, and the second applicant only came as a support person who was not required to attend and was not prepared, did not know what was going on, and was not required to show her passport at the Tribunal Hearing, but when she arrived for the Tribunal Hearing the Tribunal told her to sign the arrival paper; and
e)the inconsistencies were because the first applicant would prefer to remember the happier things and forget the other things: if the first applicant were asked to repeat his claims ten times he may provide ten different versions.
Minister’s submissions
The Minister filed written submissions in accordance with the Registrar’s Orders, but also made oral submissions, and those written and oral submissions were as follows:
a)the applicants’ Protection Visa application was a joint application for protection where the first applicant raised his own claims for protection, and the second applicant did not raise her own claims, however, at the Tribunal Hearing both applicants gave evidence and effectively raised claims;
b)at the core of the Tribunal Decision were credibility findings, and that these were findings of fact by the Tribunal which were clearly logical and probative and open on the evidence, and to challenge these findings of fact in this Court is to seek impermissible merits review;
c)essentially, the Tribunal made adverse credibility findings in relation to the applicants. The adverse credibility findings were based on inconsistencies in the oral evidence of the first and second applicants, inconsistencies between the first applicant’s written claims and oral evidence, and the 17 month gap between the applicants’ arrival in Australia and their lodging of the Protection Visa application: CB 129-131 at [34]-[47];
d)the Tribunal placed weight on the delay in applying for Protection Visas, which in this case was over one year, and Selvadurai v Minister for Immigration & Multicultural Affairs (1994) 34 ALD 347 at 348 per Heerey J, and other case law, confirms that delay is a legitimate factor for the Tribunal to take into account;
e)failure to particularise grounds is of itself sufficient to warrant dismissal of an application for judicial review: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J ;
f)the applicants have not provided any particulars or evidence to prove an allegation of actual or apprehended bias;
g)there is nothing in Pt.7 Div.4 of the Migration Act, or the “code of procedure” under s.424A of the Migration Act which requires two applicants who have both applied for a Protection Visa and who are both to give evidence, to both be present throughout the entire Tribunal Hearing, and there is no reason why the separation of the applicants would amount to a denial of procedural fairness;
h)it is common practice by courts and tribunals to exclude from a hearing room a person who will, but has not yet, given evidence in a matter while another witness is giving evidence in the same matter. This enables the court or tribunal to better assess the evidence given, as it limits the opportunity for a subsequent witness to take into account the evidence given by a previous witness and tailor their own evidence accordingly. There is no reason advanced by the applicants or evident in the material before the Court to suggest that the Tribunal’s adoption of this process in the Tribunal Hearing has resulted in any practical unfairness to the applicants;
i)referred to SAAP v Minister for Immigration and Multicultural Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009; (2005) 215 ALR 162 (“SAAP-High Court”) and submitted that the High Court was considering whether a mother and daughter were required to give notice of information obtained from the other, and dealt with the question of whether or not evidence by another claimant or witness in a case in the absence of another claimant or witness was adverse information which was required to be put to the other applicant;
j)referred to DZAAD v Minister for Immigration & Citizenship [2012] FMCA 1017 (“DZAAD-FMC”), and observed that in that case common law procedural fairness was relevant because it was an independent merits review matter, but having referred to relevant cases, the then Federal Magistrates Court assessed whether the independent merits reviewer had sufficiently put the applicant on notice of the substance or gist of information and invited a comment or response: DZAAD-FMC at [42]-[60] per Lucev FM being referred to;
k)the Tribunal informed the applicants of the inconsistencies in their evidence and invited them to comment: CB 129-130 at [34]-[40];
l)although there is no transcript of the Tribunal Hearing before the Court the Tribunal Decision indicates that the Tribunal was cognisant of its obligations to put information to each of the applicants, and it is evident that the Tribunal spent significant time explaining the evidence and the inconsistencies in that evidence once both applicants were back in the Tribunal Hearing room;
m)that inconsistencies, doubts and the Tribunal’s credibility concerns generally do not enliven procedural fairness obligations under s.424A of the Migration Act because those inconsistencies, doubts and credibility concerns are not information for the purposes of that provision, but even if they were, the Tribunal did put those matters to the applicants as is evident from the face of the Tribunal Decision;
n)procedural fairness was afforded for the purposes of s.425 of the Migration Act by the procedure adopted by the Tribunal;
o)in circumstances where the second applicant gave evidence, the Tribunal was then required to take that evidence into account where relevant to the claims, but the weight to be given to the second applicant’s evidence was a matter for the Tribunal; and
p)to the extent that the applicants may be complaining about the Tribunal’s comment at CB 126 at [18] that persecution implies an element of motivation on the part of those who persecute for the infliction of harm, this is clearly correct and does not amount to jurisdictional error: Migration Act, ss.5H, 5J; Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565; (1995) 130 ALR 314 at 568 per Burchett J (“Ram”).
Consideration
Jurisdictional error required
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”). In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”), as may unreasonableness which affects a Tribunal Decision: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50, and see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
The grounds of the Judicial Review Application lack particulars. It is now well accepted by both this Court and the Federal Court that a failure to particularise grounds of review in an application for judicial review can result in the dismissal of a ground or grounds, and if the want of particularisation affects all grounds, the application for judicial review may fail completely: WZAVW at [35] per Gilmour J; AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 at [20] per Judge Lucev (affirmed in AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J).
Given the applicants are litigants in person, and recognising its duty to strike a “balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties”: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 at [39] per Flick, Griffiths and Perry JJ; MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J, the Court must remain astute to any possible jurisdictional error in the Tribunal Decision, or which might be raised by the applicants’ oral submissions, and in this case it is, therefore, necessary to consider each of the applicants’ Grounds of review and not merely dismiss those Grounds for want of particularisation.
Ground 1
Ground 1 alleges that the Tribunal was biased. An allegation of bias must be distinctly made and clearly proved: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 (“Jia Legeng”) at [69] per Gleeson CJ and Gummow J (and see also at [127] per Kirby J). In this case, where:
a)the applicants have not provided any particulars or affidavit evidence addressing the claim of bias;
b)no actual or apprehended bias is evident in the Tribunal Decision;
c)the oral submissions did not address the issue of bias; and
d)there is no evidence that:
i)the Tribunal had a pre-existing state of mind disabling it from undertaking, or rendering it unwilling to undertake, any proper assessment of relevant issues: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
ii)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the assessment of relevant issues: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ,
the applicants have not therefore distinctly or clearly proven that the Tribunal was either consciously or unconsciously biased.
It follows from the above that no jurisdictional error is established by Ground 1.
Grounds 2 and 3
Grounds 2 and 3 appear to assert that it was a jurisdictional error for the Tribunal to separate the first and second applicants, and to hear their evidence separately, and to then use that evidence to make adverse credibility findings. Although Ground 3, by use of the words “discredit me”, appears, in context, to raise a ground only in relation to the first applicant, the Court has considered Grounds 2 and 3 as they relate to both the first applicant and second applicant. The Court notes that it appears to be accepted by the Minister that the first applicant and second applicant were separated and their evidence, at least initially, was taken separately: Transcript, page 6, lines 32-35. There is, however, no evidence before the Court as to what actually occurred before the Tribunal, the applicants having filed no affidavits in accordance with the Registrar’s Orders, nor any transcript of the Tribunal Hearing, as might have been put before the Court by the applicants pursuant to the Registrar’s Orders.
The Court accepts it is common practice by courts and tribunals to exclude from a hearing room a person who will, but has not yet, given evidence in a matter while another witness is giving evidence in the same matter. This is not, however, a matter where one or the other is solely a witness, rather this is a matter where both are applicants in the same proceeding. The Court notes that were the applicants represented by a migration agent or a lawyer, their representative (or representatives if separately represented) would have been entitled to have been present throughout the Tribunal Hearing.
The Migration Act and Migration Regulations 1994 (Cth) are silent on the procedure the Tribunal is to follow in taking evidence from joint applicants, and the Court was not referred to (and there was no evidence of) any relevant rule, procedural direction or practice applicable to the Tribunal Hearing in that regard.
Under s.425(1) of the Migration Act the Tribunal had a statutory obligation to:
a)issue an invitation to the applicants to attend the Tribunal Hearing (subject to s.425(2) of the Migration Act, which does not apply here): Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553; (2003) 198 ALR 293; (2003) 75 ALD 151 at [33] per Gray, Cooper and Selway JJ; and
b)provide the applicants with an opportunity to give evidence and present arguments in relation to the issues in their application to the Tribunal for review: SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
In the SAAP litigation the appellant was a follower of the Sabian-Mandean religion, who asserted a well-founded fear of persecution if returned to Iran, on the basis of her religion. At the hearing before the Refugee Review Tribunal (“RRT”) the RRT member advised at the outset that the appellant would be informed of any information considered to be adverse to her claim and given an opportunity to comment on that information. Evidence was taken from two witnesses, and the RRT then took evidence from the applicant’s eldest daughter, in the absence of the applicant. At that point in time, the applicant had not herself given evidence. The applicant’s migration adviser had remained in the hearing room whilst the applicant’s daughter gave evidence.
In SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 577 (“SAAP-Federal Court”) the Federal Court observed that through the migration agent, who remained in the hearing room during the applicant’s daughter’s evidence, the applicant had the opportunity of knowing what the daughter had said, including whether any of her evidence was different from that of the applicant. Further, the RRT specifically drew to the applicant’s attention for comment those elements of the daughter’s evidence which it considered to be adverse to the applicant: SAAP-Federal Court at [40] per Mansfield J; SAAP of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 411 (“SAAP-Full Federal Court”) at [5] per Heerey, Moore and Kiefel JJ.
In SAAP-Federal Court it was concluded at [43] per Mansfield J that:
… assuming the rules of procedural fairness at common law apply to the decision making processes of the [Refugee Review] Tribunal … I do not consider that those common law rules were breached by the Tribunal in this instance. The applicant had an opportunity to put her case, and was aware of the matters which were of significance to her case which emerged from the evidence of her elder daughter. She also had an opportunity of responding to those matters, partly by what was put to her during the hearing and partly by being able to make submissions about those matters following the hearing: …
In SAAP-Federal Court no further written submissions were made on behalf of the applicant following the RRT hearing: SAAP-Federal Court at [43] per Mansfield J. In SAAP-Full Federal Court before the Full Court of the Federal Court the issue of common law procedural fairness was not the subject of any specific findings, the Full Court of the Federal Court merely observing and seemingly accepting what had been determined by the Federal Court at first instance: SAAP-Full Federal Court at [12]-[13] per Heerey, Moore and Kiefel JJ.
In SAAP-High Court it was unnecessary for the majority Justices to deal with the matter of common law procedural fairness, and the matter was only dealt with, to any significant degree, by the minority Justices. In that regard, it was observed at [14] per Gleeson CJ and [140] per Gummow J that:
14. The reasons given by Mansfield J for concluding that there was no want of procedural fairness are compelling. No successful challenge has been made to that aspect of His Honour’s decision, which was accepted by the Full Court.
140. In short, the requirement that the first appellant withdraw from the hearing room during the questioning of her elder daughter did not, as it transpired, deprive her of the opportunity to learn of material adverse to her claim or to comment upon it.
Another Justice in SAAP-High Court dealt with the procedural fairness issue, but found a breach of procedural fairness on a different basis, namely, that it was open to imply that there had been a promise to provide communication of a kind that the obligation attaching to s.424A of the Migration Act envisages would have been forthcoming from the RRT: SAAP-High Court at [172] per Kirby J.
In Naisauvou v Minister for Immigration & Multicultural Affairs [1999] FCA 86; (1999) 89 FCR 435 (“Naisauvou”) the Federal Court dealt with a case where the applicant had been appearing, assisted by a lay representative, before the Tribunal in relation to a decision to deport him from Australia after his conviction on various drug and assault charges. While the applicant was giving evidence the police arrived with a warrant for his arrest for breaching his parole. The Tribunal permitted the applicant to be arrested, and taken away, after he had given his evidence, but before other witnesses in his case had been called. No witnesses were called for the respondent Minister. The issue arose as to whether the fact of the applicant’s removal prior to the completion of the evidence on his case constituted a denial of procedural fairness: Naisauvou at [16] per Moore J. The Federal Court referred to s.32 of the Administrative Appeals Tribunal Act 1975 (Cth) as providing that a party may conduct the case themselves or have another conduct it on their behalf, but as saying nothing as to whether a represented party was entitled to attend or remain at a hearing of the Tribunal even if represented: Naisauvou at [20] per Moore J. The Federal Court went on in Naisauvou to cite Pochi v Minister for Immigration & Ethnic Affairs (1979) 36 FLR 482 (“Pochi”) where the Tribunal observed at 508 per Brennan J that:
… the exclusion of a party from a hearing which affects his interests is a much greater step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him – a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal.
In Naisauvou the Federal Court observed that the question was “whether the applicant was, in the result, denied a reasonable opportunity to present his case” and that consideration of that question involved “a consideration of the point at which the proceedings had reached when, by the course proposed by the Tribunal, the applicant was arrested and detained”: Naisauvou at [22] per Moore J. In Naisauvou at [27] per Moore J the Federal Court said that:
… the applicant was not present when witnesses called on his behalf were cross-examined and when the opportunity arose for their re-examination. Nor was he present when his unqualified representative was confronted with strongly expressed views of the Tribunal concerning the prospect of the applicant re-offending about which the representative of the Minister then made submissions. It is possible that the applicant would have done either very little or nothing by way of instructing … [his representative] in the further conduct of his case had he remained. However the fact that the best opportunity might not have been taken advantage of does not conclude the inquiry.
Citing observations made by the High Court in Kioa v West (1985) 159 CLR 550 at 632 per Deane J, the Federal Court concluded that the applicant had been denied the opportunity of raising for consideration matters which might not already have been obvious, and that that denial constituted a denial of procedural fairness: Naisauvou at [27]-[28] per Moore J. On the basis of that finding the Federal Court concluded that the Tribunal decision should be set aside, and the matter remitted to the Tribunal for re-consideration: Naisauvou at [42] per Moore J.
For reasons similar to those in Naisauvou at [27]-[28] per Moore J and Pochi at 508 per Brennan J the Federal Magistrates Court in DZAAA & Ors v Minister for Immigration & Anor [2011] FMCA 434; (2011) 250 FLR 423 (“DZAAA”) held that absent some exceptional factors (such as an applicant with a propensity for violence or other behaviour likely to be obstructive to the proper administration of justice) it was difficult to conceive of circumstances requiring that an applicant be prevented from attending a final hearing which concerns them, even if the applicant was represented by a lawyer, as the applicants there were: DZAAA at [17], and see also at [18]-[20], per Lucev FM.
In DZAAD v Minister for Immigration & Citizenship [2012] FMCA 1017 (“DZAAD-FMC”) at [43]-[59] per Judge Lucev, the Federal Magistrates Court dealt with a case in which a husband and wife were required to leave the room while the other was giving their evidence.
The Federal Magistrates Court found that procedural fairness was not denied as an independent merits reviewer (“IMR”), the administrative decision-maker in that case, had put to the husband and wife the inconsistencies in their claims for comment, both during the interview with the IMR, and by way of a subsequent invitation to respond to a letter from the IMR: DZAAD-FMC at [55] per Lucev FM. In DZAAD-FMC at [54] per Lucev FM the Federal Magistrates Court observed that:
Having regard to Naisauvou and DZAAA the applicant was initially denied procedural fairness by the IMR by not being allowed to be present during the Wife’s IMR Interview. These were, however, administrative proceedings, and the IMR took steps, which negated any denial of procedural fairness arising from the failure to allow the applicant to be present during the Wife’s IMR Interview.
There was an application to the Federal Court for an extension of time within which to appeal from DZAAD-FMC, which application was dismissed: DZAAD v Department of Immigration & Citizenship [2013] FCA 204 (“DZAAD-Federal Court”) at [51] per Foster J. In relation to DZAAD-FMC there was a draft notice of appeal in DZAAD-Federal Court alleging jurisdictional error in DZAAD-FMC: DZAAD-Federal Court at [22] per Foster J, which was dismissed because it lacked particularisation, did not raise any point of substance and had no prospect of succeeding, in addition to being described as “almost certainly misconceived”: DZAAD-Federal Court at [32] per Foster J. DZAAD-Federal Court would appear to confirm that the basis on which DZAAD-FMC was decided was correct.
SAAP-Federal Court and DZAAD-FMC are distinguishable from cases such as Naisauvou and Pochi, the latter cases involving the complete removal of parties from a hearing, whereas in the former, parties were only temporarily excluded, and then invited back in for the purposes of the administrative decision-maker putting to them, and allowing them to respond, to evidence and matters of concern to the administrative decision-maker.
In this case:
a)on the material before the Court, primarily the Tribunal Decision, it appears the Tribunal spent significant time specifically explaining the inconsistencies in the evidence to the applicants and inviting them to comment upon it. In doing so the Tribunal discharged its obligations under s.424AA of the Migration Act in giving information to the applicants orally at the Tribunal Hearing about the inconsistencies in the respective joint applicants’ oral evidence, raising issues as to the credibility of their claims and which could be the reason for affirming the Delegate’s Decision: CB 127-130 at [29]-[41]; and
b)there was no material advanced by the applicants such as a transcript, or anything arising in the material before the Court, to suggest that the Tribunal’s adoption of a procedure whereby one joint applicant was excluded from the Tribunal Hearing room whilst the other joint applicant gave evidence resulted in any practical unfairness to the applicants.
Having discharged the obligations under s.424AA of the Migration Act, there was no requirement for the Tribunal to satisfy the written requirements of s.424A of the Migration Act: SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [74]-[75] and [83]-[91] per Tracey and Foster JJ. Inconsistencies, doubts and credibility concerns raised in the course of a proceeding do not necessarily enliven the procedural fairness obligations under s.424A of the Migration Act as it is not information for the purposes of that provision: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, but even if the Court considered these inconsistencies as “information” which was required to be put to the applicants, on the material before the Court it appears to have done so with “clear particulars” and “sufficient specificity”: MZXKH v Minister for Immigration & Citizenship [2007] FCA 663 at [20] and [27] per Tracey J.
In the present case, the Court notes that after hearing their evidence separately, the Tribunal informed the applicants of the inconsistencies in their evidence and invited them to comment: CB 129-130 at [34]-[40]. The detail put to the applicants in relation to the inconsistencies cured any procedural unfairness which may have arisen, or, put differently, meant that there was no practical unfairness to the first applicant or the second applicant in the manner and conduct of the Tribunal Hearing: SAAP-High Court at [14] per Gleeson CJ and [140] per Gummow J; SAAP-Federal Court at [40] and [43] per Mansfield J; DZAAD-FMC at [54] per Lucev FM.
In the above circumstances, no jurisdictional error has been established or identified by Grounds 2 and 3.
Ground 4
In relation to ground 4, it is unclear what assertion the applicants are trying to make in suggesting the Tribunal has misapplied the law. At CB 126 at [18] the Tribunal stated:
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
The Tribunal found that the assaults claimed by the applicants did not in fact take place: CB 132 at [53], so the issue seemingly arising from ground 4 does not arise. In any event, to the extent that the applicants assert that the Tribunal’s comment at CB 126 at [18] that persecution has an implied element of motivation on the part of those who persecute for the infliction of harm, that is a correct statement of law and does not amount to jurisdictional error: Migration Act ss.5H and 5J; Ram at 568 per Burchett J; Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225; (1997) 71 ALJR 381; (1997) 142 ALR 331; (1998) INLR 1; (1997) 2 BHRC 143, CLR at 242 per Dawson J (citing Ram at 568 per Burchett J), at 263-264 per McHugh J, and 284 per Gummow J (expressly agreeing with Ram at 568 per Burchett J).
It follows that no jurisdictional error is established by Ground 4.
Additional ground concerning Tribunal Hearing Invitation
At hearing the first applicant raised a claim that the Tribunal Hearing Invitation was only addressed to the first applicant. For present purposes it is unnecessary to distinguish between the First and Second Tribunal Hearing Invitations because, as noted at [17] above, they are both relevantly in the same terms.
The Tribunal Hearing Invitation was addressed to the first applicant at the Applicants’ Email Address: CB 97. The Tribunal was required under s.425A of the Migration Act to give to the applicants a Notice of Invitation to appear at the Tribunal Hearing, and that requirement was met in this case. While the first applicant is correct to suggest the Tribunal Hearing Invitation is addressed only to his email account (being the Applicants’ Email Address) the Court notes the following:
a)the salutation in the Tribunal Hearing Invitation was directed to both applicants, as was the subject line of the Tribunal Hearing Invitation in bolded print immediately below stating the full name of both applicants: CB 97;
b)the first applicant was listed as applicant number 1 on the Protection Visas application form expressly stating “Applicant 1 should be the person you want the department to contact about this application”: CB 2;
c)the Protection Visas application form completed by the first applicant requested that all written communications about the Protection Visas application should be sent to “Myself”, which in the context of the first applicant being listed as Applicant No 1, meant that the first applicant was the person to whom written communications were to be sent by the Tribunal (and the Department): CB 9; and
d)the email address provided for correspondence in the applicants’ joint application to the Tribunal for review was the Applicants’ Email Address: CB 79, and it was to the Applicants’ Email Address that the Tribunal Hearing Invitation was sent.
Nothing turns on this issue in any event: both the first applicant and the second applicant attended the Tribunal Hearing, and both gave evidence and had the opportunity to put argument to the Tribunal. In those circumstances, even if the Tribunal Hearing Invitation was only formally addressed to the first applicant, any error in that regard is cured by the fact that both the first applicant and the second applicant attended the Tribunal Hearing in person, gave evidence and had the opportunity to put argument. It follows that there was no practical unfairness arising, even if there was an error, which in the Court’s view there was not because the Tribunal Hearing Invitation was sent to the person nominated to receive correspondence in the application for review made to the Tribunal by the first applicant and the second applicant: CB 79.
No jurisdictional error is established by the additional ground concerning the Tribunal Hearing Invitation.
Other matters
Two other matters require mention.
Firstly, the applicants’ submissions refer to the fact that the second applicant was not required to show her passport at the Tribunal Hearing. That is immaterial, for as is noted at [24] above, the Tribunal found that the applicants were citizens of Malaysia based on copies of Malaysian passports previously provided to the Department. In any event, the failure to require the second applicant to produce her passport at the Tribunal Hearing is simply not a jurisdictional error in the circumstances of this case.
Secondly, nothing turns upon the submission that if the first applicant were asked to repeat his claims ten times he might provide ten different versions of those claims. Setting aside its self-serving nature, the submission invites the Court to speculate about the nature of the evidence given by the first applicant, and to do so would be to impermissibly undertake merits review on the basis of a mere assertion. It follows that no jurisdictional error arises in this regard.
Conclusion and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 20 November 2018
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