BRJ15 v Minister for Immigration

[2016] FCCA 3274

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRJ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3274

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – whether the Tribunal acted unreasonably – whether the Tribunal should have awaited the translation – refusal to further adjourn proceedings cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48B, 476.

Cases Cited:
SZGIZ v Minister for Immigration and Citizenship [2013] 212 FCR 235

Applicant: BRJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2282 of 2015

Judgment of: Judge Street

Hearing date: 15 December 2016

Date of Last Submission: 15 December 2016

Delivered at: Sydney

Delivered on: 15 December 2016

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones

Parish Patience Immigration Lawyers

Solicitors for the Respondents:

Mr A Markus

Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2282 of 2015

BRJ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 July 2015 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a national of Malaysia and arrived in Australia on 8 April 2010, and the applicant applied for protection on 6 July 2010 which was refused on 7 October 2010. The applicant sought review of that decision on 5 November 2010 and upon review a differently constituted Tribunal affirmed the decision of the delegate on 22 December 2010. The applicant sought judicial review on 19 January 2011 which was unsuccessful on 21 April 2011. The applicant then sought ministerial intervention and on 1 June 2011, the applicant was notified that the ministerial intervention outcome was inappropriate to consider. The applicant made a further request under s.48B of the Act which was withdrawn on 28 June 2011. The applicant then sought ministerial intervention again which was not considered on 12 September 2011. The applicant sought to take proceedings to the High Court of Australia on 11 October 2011 which was unsuccessful and dismissed on 2 October 2012. The applicant lodged a partner visa application on 26 October 2012, which was withdrawn on 28 January 2014.

Application for Protection (Class XA) visa – 13 January 2014

1. On 13 January 2014, the applicant lodged a further application for protection in accordance with the principles under SZGIZ v Minister for Immigration and Citizenship [2013] 212 FCR 235 on the grounds of complementary protection. The applicant claimed to have been in a relationship with a man, who unknown to her was a well-known criminal. The applicant claimed that when he was arrested he blamed the applicant and sent his associates to harm her.

2. The applicant claimed that one of the applicant’s partner’s former friends came to the hospital where she was working as a nurse. The applicant claimed she gave him an injection and that the man later became unwell and blamed the applicant for his illness and wanted to harm her. The applicant also claimed that she is indebted to moneylenders who are now after her.  The applicant also claimed that her mother had disappeared and that she believes that either her former partner’s friends or the moneylenders are responsible for her mother’s disappearance. The applicant also relied upon her Malaysian-Indian race and Tamil ethnicity and Hindu religion, as well as being a female. 

Before the Delegate

1. On 22 July 2014, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country there is a real risk the applicant would be subject to significant harm. The delegate was not satisfied that Australia had protection obligations to the applicant and found that the applicant did not meet the criteria under s.36(2)(aa) of the Act.

Before the Tribunal

1. On 14 August 2014, the applicant filed an application for review. By letter dated 20 April 2015, the applicant was invited to attend a hearing on 29 May 2015. That letter conveyed to the applicant that the Tribunal had considered the material before it and it was unable to make a favourable decision on that information alone. The applicant attended on the hearing date to give evidence and present arguments and was also assisted by her migration representative. On the same day as the hearing, submissions were also provided to the Tribunal. 

Invitation to comment on or respond to information – 4 June 2015

1. Following the hearing, on 4 June 2015, the Tribunal wrote to the applicant through the applicant’s representative providing further information on which the applicant was invited to comment in relation to the debt owed to moneylenders, the applicant’s mother’s disappearance and relevantly, that at the time the applicant lodged the application for protection in January 2014, no claim was made that the applicant’s mother had disappeared or was feared kidnapped. The applicant was also invited to comment in relation to the applicant’s former partner and his alleged criminal connections and the applicant’s immigration history. The letter dated 4 June 2015 invited the applicant to respond to the invitation as soon as possible.

Request for extension of time to provide comments or response – 17 June 2015

1. On 17 June 2015, a response to the letter was sent providing certain information, which included an instruction to request the Tribunal to grant an extension of time to provide a psychologist’s report to confirm that the applicant continues to suffer significant mental health issues.  The letter dated 17 June 2015 sought an extension of time until 1 July 2015 to provide the report. The letter dated 17 June 2015 sought to explain why the request for additional time in that regard was reasonable. 

2. On 18 June, the Tribunal sent the applicant a further letter in response to the request for an extension of time received on 17 June 2015. The Tribunal recorded that it had considered the request carefully and that the Tribunal had agreed to grant an extension of time. The Tribunal identified that the comments or response must be received by 2 July 2015. The Tribunal foreshadowed that if a response was not received by that date, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

3. On 2 July 2015, a letter was submitted to the Tribunal providing a translation of a police report. The police report related to an incident alleged to have occurred on 1 August 2008. At 4.02 pm on 2 July, a further email was sent on behalf of the applicant to the Tribunal enclosing a statutory declaration with attachments. The statutory declaration was made by the applicant reporting to identify the applicant’s psychological condition and problems with her memory.  Amongst the attachments provided were a psychologist’s report dated 30 June 2015. 

4. On the material before the Court, no further extension had been requested for time to put on material until 15 July 2015, when the Tribunal received an email at 9.07 am in which a request was made to provide until 20 July to provide a report on the status of the police report. The email referred to the Tribunal requesting the applicant to provide a status report for the police report, and referred to having managed to contact an advocate in Malaysia. The email asserted that the particular report was relevant to the case and that the lawyer had indicated he needed some time to prepare a report, enclosing an email from the lawyer. 

5. That email from the lawyer dated 14 July 2015 identified that the Malaysian lawyer had been informed by the relevant police officer from the Central Police of Malaysia that they should be able to provide a detailed status report concerning the applicant’s mother who went missing in 2010 at the latest by 16 July 2015. On 16 July 2015, the applicant’s migration representative provided the report that was referred to in the letter dated 15 July 2015 in respect of which the extension of time up until 20 July 2015 had been sought.  The email of 16 July 2015 attached a letter from the Malaysian lawyer which relevantly referred to having been instructed to provide a status report for the above missing person. The missing person identified was the applicant’s mother. 

6. The report referred to a police report lodged on 15 December 2010, a copy of which was before the Tribunal. The report by the Malaysian lawyer referred to an Investigation Paper having been subsequently opened on 15 December 2010. That reflects the record that was already before the Tribunal. The report noted that from the online police authorities system, the Malaysian lawyer sighted that the police are still investigating the case and that, to date, no arrests have been made. 

7. The report noted the investigation paper remains active until and unless the missing person is found or any other fresh evidence is found pertaining to the missing person. The letter dated 15 July 2015 referred to the enclosure of a snapshot obtained from the authorities in the Malay language for reference. The report by the Malaysian lawyer continued that the lawyer had seen the said information above and that the lawyer was satisfied that in cases of missing persons, the police can only act further if there is fresh evidence to show or locate the whereabouts of the person, or if there is any evidence of criminality against the missing person. The letter then certifies the experience of the Malaysian advocate. 

8. Following receipt of the email of 16 July 2015 with the report and the attachment, the Tribunal emailed the applicant’s representatives on 17 July 2015 and noted that the two pages enclosed with the lawyer’s report were not legible, that they were too dark and requested that a better copy be provided immediately. In the circumstances of the earlier extension of time by the Tribunal, the request for immediate response was for the purpose of making a decision in relation to the review. A response was not provided immediately. However, on 20 July at 4.36 pm, a more legible copy of the screenshot attached to the report of the Malaysian lawyer was provided, the letter noted that the report was in the Malay language, as had been identified in the Malaysian lawyer’s report and noted that the migration representative had asked a translator to translate the document in English. Materially, the email continued and relevantly said:-

   However, we note that the Malaysian advocate in his report confirms that he has sighted from the online police authorities system that the police are still investigating the case. He further confirms that the investigation paper remains active. He also confirms that he has seen the document and confirms the authenticity of the document and the contents of the screenshot showing the current status of the report.

   The email then concluded:-

   We further note that the translators have advised that they would translate the document and would send to us on or before 27 July 2015.  As soon as we receive the document from the translator, we will forward to the Tribunal.

9. The Tribunal proceeded to determine the matter on 22 July 2015. The Tribunal identified the nature of the review in relation to the complementary protection claimed by the applicant and set out the relevant law. The Tribunal identified the applicant’s claims and evidence. The Tribunal made reference to the Tribunal accepting the documentation provided relating to the applicant’s mother’s disappearance and the document annexed to the Malaysian advocate’s report was part of that documentation. The Tribunal proceeded and found that it accepted that there is an ongoing investigation into the applicant’s mother’s disappearance, but that the cause of the disappearance has not been determined. 

10. The Tribunal found that part of the applicant’s evidence was not credible and that the applicant had fabricated certain claims. The Tribunal found that it was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that the applicant will suffer significant harm, such that she will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will subject to torture or that she will be subject to cruel and inhumane treatment or punishment, or to degrading treatment or punishment.

11. The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations and that the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Before this Court

1. The solicitor for the applicant, Mr Jones, confirmed that only Ground 2 of the application was pressed and that Ground 1 was abandoned. Ground 2 is as follows:-

   2. The Tribunal acted unreasonably by failing to defer its decision until the applicant had provided a relevant document as requested by the Tribunal.

   Particulars

   On 17 July 2015 via email, the Tribunal requested a clear copy of the status of the Police report which is in Malay language. The Tribunal's email indicates that it would consider the report. The Applicant's representative in an email dated 20 July 2015 requested further time to provide a translated copy of the Police report because that particular report is in Malay. The Tribunal failed to wait till 27 July 2015 to assess the translated copy of the document and decided to affirm the decision of the delegate on 23 July 2015.

Consideration

1. Mr Jones submitted that it was unreasonable for the Tribunal not to await the translation of the two-page screenshot attached to the Malaysian lawyer’s report. Mr Jones submitted that the report was relevant in relation to the mother’s disappearance and that in the circumstances of the communications between the applicant’s representatives and the Tribunal, it was unreasonable for the Tribunal to proceed to determine the matter on 22 July 2015 given the request that had been made on 20 July 2015. 

2. Mr Jones made reference to the request for a clearer copy of the report in Malay that was made by the Tribunal and submitted that in those circumstances it was unreasonable for the Tribunal not to await the translated copy that was foreshadowed to be provided on or before 27 July 2015. The untranslated copy of the Malay document was squarely identified by the Malayan lawyer as identifying the fact that there was an ongoing investigation in respect of the applicant’s mother who is deemed to be missing. That was a fact that the Tribunal accepted.  There was no requirement in the circumstances in the present case for the Tribunal to await a translation in respect of the document, the contents of which had been substantially identified in the covering report by the Malay lawyer, and in respect of which the Tribunal accepted that there was an ongoing investigation.

3. The refusal of the Tribunal to further adjourn the proceedings cannot be said to lack an evident and intelligible justification. It was not unreasonable for the Tribunal in the circumstances of the present case to proceed to determine the application for review without awaiting the translation of the two-page document, the substance of which had already been disclosed to the Tribunal and the content of which in relation to the applicant’s missing mother had been accepted by the Tribunal.  Ground 2 fails to make out any jurisdictional error.

4. Further, this is a case in which even if there had been made out unreasonableness constituting a jurisdictional error by reason of failing to await the translation of the two-page document, the substance of the document had been identified, and this is a case where no practical injustice whatsoever flowed from the Tribunal’s decision. The grant of constitutional relief is discretionary, albeit that the discretionary relief must be exercised judicially. Had any jurisdictional error been made out, this is a case where because there is no possible practical injustice, relief would in any event be refused.

5. The application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 January 2017