C7A/2017 v Minister for Immigration
[2019] FCCA 1440
•31 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| C7A/2017 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1440 |
| Catchwords: MIGRATION – central issues concern the Tribunal’s strongly adverse findings regarding the Applicant Mother’s credibility – these included her claim for refugee status on the basis of being a Rohingya – the Applicant said that she lived with her Rohingyan Uncle since she was 6 years old but she did not speak Rohingyan at all – claims of unreasonableness not made out – that the Tribunal did not relevantly consider all relevant integers of the claim – Application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), s.424AA. |
| Cases cited: ARG15 v Minister for Immigration and Border Protection (2017) 250 FCR 109 BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109 CQG v Minister for Immigration and Border Protection (2016) 253 FCR 496 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 |
| First Applicant: | C7A/2017 |
| Second Applicant: | C7B/2017 |
| Third Applicant: | C7C/2017 |
| First Respondent: | Minister FOR Immigration & Border Protection |
| Second Respondent: | Administrative Appeals Tribunal |
| File Number: | CAG 77 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 12 June 2018 |
| Date of Last Submission: | 12 June 2018 |
| Delivered at: | Canberra |
| Delivered on: | 31 May 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr Lawrence |
| Solicitors for the Applicants: | Hearn Legal |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
(1) The Applicant’s Application filed on 18th May 2017 be dismissed.
(2) The Applicant pay the Respondent’s costs in the sum of $7,467 as per Schedule 1 of the Federal Circuit Court Rules 2001.
| (1) FEDERAL CIRCUIT COURT OF AUSTRALIA AT Canberra |
CAG 77 of 2017
| C7A/2017 |
First Applicant
| C7b/2017 |
Second Applicant
| C7c/2017 |
Third Applicant
And
| Minister FOR Immigration & Border Protection |
First Respondent
| Administrative Appeals Tribunal |
Second Respondent
REASONS FOR JUDGMENT
Introduction
1. This matter concerns a challenge by a Mother and her two sons (all of whom claimed to be Rohingyan) to a decision by the Delegate (made on 8th June 2015) to deny her a Protection Visa, which decision was affirmed by the Refugee Review Tribunal (“the Tribunal”) on 13th April 2017.
2. For the reasons that follow, I do not find that there was any relevant error by the Tribunal in its decision. Accordingly, the Amended Application to Review, filed 30th May 2018, must be dismissed with costs payable in the amount as prescribed in this Court’s Rules.
The Tribunal’s Decision
3. The Delegate of the First Respondent Minister determined not to grant the Applicants a Temporary Protection (Class XD) visa. On 13th April 2017, the Administrative Appeals Tribunal (“the Tribunal”) affirmed the Delegate’s decision for the following reasons.
4. Paragraphs 6 – 8 set out the Applicant’s claims that she was born in Malaysia (and was stateless) to a Burmese Father who was also stateless, and who passed away while her Mother was pregnant with her. The Applicant claimed that she was denied Burmese citizenship and could not return to Burma. The Applicant’s Husband was a stateless Rohingya who had suffered harm in Malaysia before seeking asylum in Australia in 2009.
5. At pars.9–28 the Tribunal summarised, in some detail, the oral evidence presented at the hearing before it on 15th March 2017.
6. At the outset of the hearing, the Applicant Mother was asked if her children had separate claims or whether they came solely under her claims. The Applicant Mother confirmed (at par.9) that the children’s claims relied upon “her claims alone.”
7. The Applicant said that she would be put in gaol if she was returned to Malaysia because she had no relevant documentation. She could not say why she had no documentation. She said that she had no nationality.
8. The Applicant said that her Father was Rohingyan and her Mother was Indonesian. The Applicant was asked why her Father’s name on her marriage contract was a Javanese name, and not a [Burmese/Myanmaran] Rohingyan name; she said that she did not know why this was. The Applicant said that she had been born in Malaysia.
9. The Applicant believed that her biological Father’s name was [name omitted] and that he had died before she was born. The Applicant said that her Mother had left Malaysia for Indonesia when the Applicant was six and had never returned. The Applicant said that she did not know any contact details for, or information about, any relatives she may have in Indonesia.
10. The Applicant met her Husband in Malysia; they married in 1999. He is Rohingyan and was registered with the UN. The Applicant said that when her Husband and children had gone to Kuala Lumpur to register with the UN, she had been sick so she had not gone with them. She said she had tried to register with the UN in Kuala Lumpur three or four times but that security would not let her in.
11. On multiple occasions, and in varying ways, the Applicant was asked by the Tribunal why she had not obtained identification or other documentation from the UN, especially since her status as a Rohingyan person would be precisely the reason why she would have no documentation, and why she would need to obtain it. To such questions, the Applicant said either that she did not know, or simply repeated her earlier comments about not being able to accompany her Husband because she was sick at the time, and similar answers.
12. Further, when asked about her Father’s Javanese/Indonesian name, she said that she did not know and that perhaps someone had simply mis-spelt it. The Applicant did not deny that her Mother was Indonesian.
13. The Applicant’s Husband was then brought into the Tribunal hearing. He advised that he was previously married and has three children from that relationship. Somewhat curiously, he said that his [new] Wife, the Applicant, only learnt of his previous marriage when she was told of it by the Father’s son who now resides in Australia. He said that he did not tell his Wife of his earlier relationship and his children from it because he feared she would leave him.
14. At par.21 of its Reasons, the Tribunal noted that the Applicant (given the context, presumably the Tribunal was intending to refer to the Applicant’s Husband) arrived in Malaysia in 1992, and registered with the UN in 2002. In the same year, he said that he also registered a son he had with the Applicant. He said that his Wife (the Applicant) did not go on this occasion because she was sick.
15. The Applicant’s Husband was asked repeatedly whether he took the Applicant to the UN to register, both in 2002 and in the following year. To these questions, the Applicant’s Husband repeated, somewhat obliquely, that “it was difficult to get in.” When asked about whether he had advised the UN of his Wife’s name, he said he said that he did not know how to write it and that he had been arrested eight times already. He said further that he had only provided his name and that of the child, and that the relevant form had been filled in by an “agent” at the gate of the UN. He gave only his son’s name to the UN; he confirmed that he understood Bahasa Malay.
16. He confirmed that he gave the UN his son’s Mother’s name but that he used a photocopy, presumably of a passport, from another person who had the name [name 1], an Indonesian name, to identify the children’s Mother. He claimed (at par.24) that he was illiterate and paid someone else to fill out the form and that it was just coincidence that the Mother’s Father’s name was “[name 2]”, an Indonesian/Javanese name. The Applicant’s Husband said that on this occasion, the Applicant had been sick and did not attend the UN centre to register with him.
17. The Applicant’s Husband confirmed (at par.25) that the Applicant did not speak Rohingyan, even though she had said that she had been raised by her Rohingyan Uncle since she was six years old.
18. At par.26, the Tribunal then advised the Applicant, pursuant to s.424AA of the Act, that (a) her Father had identifiably Indonesian name ([name 2]), which the Mother confirmed, (b) in the UNHCR in Malaysia, the Mother was identified with an Indonesian name ([name 1]), and (c) maternity tests showed that the child registered with the UN was the Applicant’s and her Husband’s son. In these circumstances the Tribunal put to the Applicant that it had concerns that the Applicant was in fact an Indonesian national with the name [name 1], and that she may have a family network in Indonesia rather than having been abandoned when she was six years old as she alleged.
19. It was further put to the Applicant that her Husband said that she did not speak Rohingyan in circumstances where she had said that her Uncle had told her that she could not register with the UN unless she had a Rohingyan identity. But, on the Applicant’s evidence, her Uncle did not teach her Rohingyan which led the Tribunal to doubt that she was Rohingyan at all and certainly that she had no Rohingyan relations. The Applicant had said that her uncle had told her that she could not register with the UN unless she had a Rohinygan identity (par.27).
20. In its consideration of the Applicant’s claims and evidence (pars.29 – 54), the Tribunal noted that the Applicant and her Father both appeared to have Indonesian names, which raised questions regarding her alleged nationality. Indeed, in the light of the evidence already outlined, the Tribunal did not accept that the Applicant was stateless as claimed, but rather said that it would treat the Applicant as an Indonesian national, and would use Indonesia as the country of reference.
21. Accepting certain levels of confusion and omission in the evidence, to which the Tribunal paid little attention, the Tribunal found that the Applicant’s evidence lacked credibility. Indeed, it went further, saying that, in the light of the Applicant’s claims and evidence, the Tribunal found that the Applicant was not a “reliable, credible and truthful” witness (par.32). The Tribunal found that the Applicant had fabricated her claim in order to be granted a protection visa.
22. At pars.33 – 51 the Tribunal outlined its findings in relation to the Applicant’s identity.
23. The Tribunal did not accept that (a) the Applicant’s name was [name omitted], (b) she was born to a Rohingya Father and an Indonesian Mother, or (c) she was stateless in Malaysia. Rather, the Tribunal was satisfied that both the Applicant’s parents were Indonesian and that, in consequence, she has, or is able to obtain, Indonesian citizenship.
24. The Tribunal relied on DNA and UNCHCR information, as well as Javanese naming conventions, to support the finding that the Applicant was an Indonesian national named [name 1]. The Applicant’s marriage certificate showed her to be the daughter of [name 2]. The Applicant also provided DNA evidence that showed her to be the biological mother of the second- and third-named Applicants.
25. The Tribunal did not accept the Applicant’s Husband’s post-hearing submission that provided an explanation for how the name [name 1] came to be associated with the Applicant. The Tribunal characterised the Applicant Husband’s evidence as “vague and contradictory”. At par. 37 the Tribunal noted that the Applicant’s Husband had filled out a statutory declaration without mentioning that he had registered the child using a false Indonesian name. Citing this action, the Tribunal was satisfied that this indicated that Applicant’s Husband had tried to conceal these facts.
26. The Tribunal placed little weight on the marriage certificate that states the Applicant’s name is [name omitted]. This was because it was difficult to establish the veracity of the certificate (par.38).
27. It was of some significance (pars.39 – 40) that the Applicant did not know the Rohingyan language despite, on her evidence, having lived with her Rohingyan Uncle since she was six years old.
28. The Tribunal also afforded little weight to the legal advice provided by an Indonesian law firm (par.43) because the advice (given in good faith) was nonetheless based on claims which the Tribunal had found to be fabricated.
29. The Tribunal was satisfied (par.44) that under Article 4 of the Indonesian Citizenship Statute No. 12, 2006, the Applicants would have a right to Indonesian citizenship by virtue of the fact that they had Indonesian parents or an Indonesian mother.
30. Because the Tribunal found that the Applicant Mother was not stateless and was in fact an Indonesian national (par.45 - 46), the Tribunal also found that the second and third-named Applicants were also not stateless and have a right to Indonesian citizenship themselves.
31. The Tribunal found, at pars.47 - 48, that the Convention on the Rights of the Child was of no assistance because of the earlier finding that the Mother is an Indonesian national, which led to the conclusion that her children are entitled to Indonesian citizenship.
32. The Tribunal noted that the Applicant had not provided evidence that she had sought to gain Indonesian citizenship. The Tribunal inferred from this that the Applicant already had the required documentation and was unwilling to admit it, or alternatively that the Applicant had not yet taken all steps to avail herself of the right to enter and reside in Indonesia, which is a pre-condition for Australia to exercise its protection obligations under s.36(3) of the Migration Act 1958 (Cth) (“the Act”).
33. Relying on these reasons, the Tribunal was also satisfied that the Applicants were not persons in respect of whom Australia has protection obligations, and that they do not satisfy the criteria set out in s.26(2)(a) or (aa) of the Act for a protection visa.
Grounds of Review
34. The Applicants’ Application is based on the following grounds, as outlined in their Amended Application, filed on 30th May 2018:
1. Ground 1: Failure to Hear, Consider and Determine on Review Claims Arising
2. The Tribunal failed, giving rise to jurisdictional error, to hear, consider and determine on review the claims advanced by the Second and Third Applicants, which were related, but separate, from those advanced by the First Applicant.
3. Ground 2: Failure to Consider an Integer of the Claim
4. The Tribunal failed, giving rise to jurisdictional error, to consider and determine an integer of the claims, that squarely arose, being what would occur if the First, Second and Third Applicants were unable to gain access to residence in Indonesia after departure from Australia
5. Ground 3: Failure to Apply the Proper Test
6. The Tribunal failed, giving rise to jurisdictional error, to consider what would occur if the Tribunal was wrong in its findings as to the identity of the First Applicant.
7. Ground 4: Failure to Consider Evidence Required to be Considered
8. The Tribunal failed, giving rise to jurisdictional error, to consider material obtained from the United Nations High Commission for Refugees (UNHCR) in Malaysia indicating that the First Applicant was born in Malaysia to a Rohingya father and an Indonesian mother, in circumstances where the Tribunal made a positive finding as to the reliability of other material obtained from the same source and used it adversely to the Applicants.
9. Ground 5: Unreasonableness
10. The Tribunal erred and acted outside jurisdiction by making unreasonable material findings of fact in respect of the name of the First Applicant's father and the citizenship status of the Applicants.
The Applicants’ Submissions
35. The following submissions were filed on behalf of the Applicants on 30th May 2018:
1. 1) This is a review of a decision of the Administrative Appeals Tribunal (“AAT”) declining an application for a protection visa by three persons.
2. Background
3. 2) The First Applicant is the Mother of the Second and Third Applicants, who are male sons of the First Applicant and a Rohingya man (name omitted) who has already been recognized as a refugee in Australia.
3) The three Applicants arrived in Australia in February 2013.
4) [name omitted] had arrived in Australia 9 December 2009 and was recognized as a refugee on 21 December 2009.
1. 5) The First Applicant applied for protection using a ‘Form C’ (CB17). She completed a ‘statement of claims’ (CB3-5), in which she claimed to have been born in Malaysia to an Indonesian mother and Rohingya father. She claimed to have been a stateless person who had been arrested many times by the Malaysian police and did not have a right of residency in that country. She further claimed that as a Rohingyan person she would be persecuted in Burma/Myanmar. The First Applicant claimed that her father had died when her mother was pregnant with her and that her mother had abandoned her and returned to Indonesia when she was six years old. The Second and Third Applicants applied for protection using a ‘Form D’ (CB 32 onwards).
2. 6) The First Applicant did not submit any identity documents in support of their [sic] claim, but did submit a marriage certificate (relating to the marriage between the First Applicant and [name omitted) (CB86) and a UNHCR identity card for [name omitted] and the older of the two children (CB99). The marriage certificate recorded the First Applicant to be from ‘Myanmar’ and stated that her father’s name was ‘[name 2]. This was not consistent to what the First Applicant had stated on the forms lodged with her protection visa application, where her father was named as, ‘[name omitted]’ (CB64).
3. 7) With the consent of the First Applicant (CB95), the Department of Immigration made inquiries into the identity of the First Applicant and received information from the UNHCR in Malaysia (CB112-113). The information was in an email and included the following:“the applicant is not the biological mother of [Second Applicant], his mother is stated to be an Indonesian national named [name 1]” and “information available on file indicates that the applicant was born in Malaysia to a Rohingya father and an Indonesian mother; she married her husband in 1999”.
4. 8) On 8 June 2015 the application for protection was refused by a delegate (CB138). The delegate was not satisfied that the First Applicant was the mother of the Second and Third Applicants and not satisfied the First Applicant was Rohingya or that she faced serious harm or deportation from Malaysia (CB159). The delegate further found that she had not attempted to obtain Indonesian citizenship and had therefore not exhausted her options for having a right to reside in a third country (CB161). No separate or additional consideration was given to the claim of the Second and Third Applicants (CB166).
5. 9) The Applicants sought review within the Refugee Review Tribunal (RRT) on 15 June 2015 (CB167). The hearing proceeded on 15 March 2017 and a decision was handed down on 13 April 2017.
6. Ground 1: Failure to Hear, Consider and Determine on Review Claims Arising
7. The Tribunal failed, giving rise to jurisdictional error, to hear, consider and determine on review the claims advanced by the Second and Third Applicants, which were related, but separate, from those advanced by the First Applicant.
8. 10) As particularized in detail in the amended application this ground contends that there was a failure to hear, consider and determine on review separate and distinct claims made by the Second and Third Applicants.
•• The Second and Third Applicants originally applied for protection using a ‘Form D’ application form, (CB 32)
1. 11) In SZQAS & Anor v Minister for Immigration & Anor [2011] FMCA 555 (31 August 2011) Judge Driver considered a case where an issue arose as to whether a person who had completed a form D was to be considered an applicant whose claim had to be considered. Judge Driver stated at [25]:
1. "It is apparent that those written claims asserted a fear of harm by both applicants although the claims were made by the first applicant alone. There is a question whether the second applicant should be taken to have made claims after having completed the form 886D, [51] intended for members of a primary applicant’s family unit who are included in the visa application but do not have their own claims to be a refugee (as opposed to form 866C, intended for family members making their own claims to be a refugee). In my view, as a general principle, whether a claim is made by an applicant is a question of fact to determine from what is said and written, rather than from what form is used”.
2. 12) The application by SZQAS was dismissed by Judge Driver and was the subject of an appeal. The appeal was dismissed in SZQAS v Minister for Immigration and Citizenship [2011] FCA 1398 (8 December 2011) by Perram J and the reasoning of Judge Driver not disapproved.
3. 13) It is submitted by the Second and Third Applicants that a) they clearly had separate claims and b) were in all respects applicants of substance whose claim had to be considered and determined according to law and c) those claims were not considered in a procedurally fair way and d) those claims were not ultimately considered and disposed of at all.
4. 14) Prior to the Tribunal hearing the Second and Third Applicants were identified as separate applicants in their own right (CB245) and clearly articulated separated claims on their own behalf through their agent (CB256 at 6).
5. 15) The Second and Third Applicants were born 21.11.2000 and 8.05.2009 respectively (CB168) and were 17 years and 8 years at the time of the Tribunal hearing.
6. 16) Unlike the First Applicant, they were indisputably of Rohingya ethnicity (their father having been accepted as such)
7. 17) The Tribunal was advised in advance of the hearing that they would be attending and participating in the hearing (CB213)
8. 18) The Applicant’s tribunal representative was unable to attend personally, after a flight was cancelled and a request to delay the start of the matter until 230pm was refused (CB267), but ‘appeared’ via telephone (CB268)
9. 19) The Second and Third Applicants attended the Tribunal hearing but the reasons indicate were asked to wait outside (CB335) and not heard from.
10. 20) This seems to have occurred after, “the applicant was asked if her children had separate claims or whether they came solely under the applicant’s claims, she stated that they relied on her claims alone”. (CB 335 at paragraph 9).
11. 21) At no point according to the reasons did the Tribunal hear from the Second or Third Applicants personally or invite them to give evidence.
12. 22) In a post Tribunal hearing submission it was restated that the Second and Third Applicants “raise their own claims for protection, both Applicant’s Two and Three claim that they have experienced persecution in the receiving country on the basis of their ethnicity as Rohingya asylum seekers”. (CB315 at 3).
13. 23) The reasons reveal the claims of the Second and Third applicants were not considered and determined solely on the basis of the identity of the First Applicant.
14. 24) Ultimately, the question of the content of the obligation to accord procedural fairness is one of practical justice. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Gleeson CJ at [37] stated: "Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice".
15. 25) The Second and Third Applicants were not treated in a manner consistent with the obligations of procedural fairness imposed by the Act. This had the effect that their claims were not reviewed.
16. 26) In SZTQD v Minister for Immigration and Border Protection [2016] FCA 339 (10 February 2016) Rares J was concerned with a similar situation where a husband and wife both sought to review a refusal in circumstances where the wife in the hearing had told the Tribunal that, “she depends solely on her husband’s claims to protection” when in fact the material demonstrated her claims were separate and independent. Rares J stated at [46] to [48]:
17. “In my opinion, the Tribunal had before it a substantial, clearly articulated argument relying upon established facts that appeared pellucidly in the wife’s separate application for a protection visa: Dranichnikov 197 ALR at 394 [24]-[26], 408 [95]; NABE 144 FCR at 17-18 [55]. She had applied to the Tribunal to review that claim. Her claim had not been considered by the delegate, indeed it had been mischaracterised by the delegate in her decision as being one dependent upon the husband’s claims alone. The wife’s claim was made as a separate claim in both the Form 866C and in the application to the Tribunal for review of the delegate’s decision. It was not merely a claim solely dependent on the husband’s claims. Moreover, during the course of the hearing the wife, as the Tribunal recorded at [60] of its reasons, she told it that “there is no safety for her and [her] husband in Sri Lanka”.
18. The Tribunal’s characterisation that the wife had not made any protection claims on her own behalf amounted to a failure by it to perform its function of review of the delegate’s decision under s 425. That function required that the wife appear before the Tribunal, give evidence and present arguments relating to the issues arising in relation to the decision of the delegate under review. The decision of the delegate under review had ignored the wife’s independent claim for a protection visa, as did the Tribunal”.
19. 27) It is relevant in this respect to consider the special position that children have in international law. The Convention on the Rights of the Child which in Article 3 states:
20. 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
21. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
22. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
23. 28) The Convention recognises that proper consideration of the interests of a child can be contingent on the child being given an opportunity to be heard and mandates that the following occur:
24. Article 12
25. 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
26. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
27. 29) At the time the Tribunal purported to exercise its jurisdiction in respect of the applicant guidelines existed which had been promulgated by the tribunal to guide the exercise of its jurisdiction in respect of vulnerable persons.
28. 30) The guidance was created:
29. “to address the needs of those individuals who face particular difficulties in the review process. These difficulties may be because their ability to understand and effectively present their case or fully participate in the proceedings is impaired due to their age or physical, mental, psychological or intellectual condition, disability or frailty”
30. 31) The objectives of the guidance were stated to be:
•• to ensure that vulnerable persons are supported during the review process
•• to ensure that the inherent dignity of vulnerable persons is recognized and respected
•• to heighten awareness of members and staff of the need to consider implementation of procedures for dealing with vulnerable persons
1. 32) The guidance document states that, “staff and members dealing with vulnerable persons should consider this guidance” in conjunction with various other documents.
2. 33) A vulnerable person is defined in the guidance as:
3. “A vulnerable person is a person whose ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed”
4. 34) The guidance then enumerates several factors which “can affect a person’s ability to participate in the review process” and lists, among others:
5. “Age: children and young people may not be able to fully comprehend the context of the review and may not have developed the capacity or the knowledge to understand the wider implications for them of the review”.
6. 35) The guidance then:
7. “Sets out a number of procedural approaches that may be adopted by the tribunals in relation to vulnerable persons. The approaches are designed to ensure that proper account is taken of the needs of vulnerable persons, be they parties or witnesses, and to ensure no applicant is disadvantaged when the tribunals conduct a review”.
8. 36) These approaches include:
9. Early identification of vulnerable persons, it being, “preferable that vulnerable persons are identified as early as possible and that appropriate accommodations are made as soon as practicable, including ensuring a flexible approach to the processing of cases involving them”.
10. Priority attention to cases involving vulnerable persons, “although cases involving child applicants will generally only be prioritized for constitution where the child is the primary applicant”.
11. Such priority attention including:
•• “To ensure a fair and just review it may sometimes be necessary to delay the processing of a case, because of issues causing the person to be identified as vulnerable. Any consideration of a delay in the processing of a case involving a vulnerable person should take into account the obligation on the tribunals to complete reviews without undue delay”.
•• “When a case involving a vulnerable person is allocated to a member, the tribunals will assign an experienced case officer to assist. The case officer should maintain responsibility for case management issues in the application”
•• “The case officer should provide the vulnerable person, his or her representative, friend, or relative, with information about the tribunals’ processes and procedures and should remain the primary contact throughout the review process”
•• “Members should consider whether particular procedural arrangements or additional representation or support are desirable in an individual case. Members should ensure that any arrangements made are consistent with the tribunals’ statutory obligations under the procedural code set out in the Migration Act 1958 (Cth) (the Migration Act). Members may seek advice on this issue from the tribunals’ Legal Services section”.
•• “The case officer may discuss the needs of the vulnerable person with the person and his or her representative or support person”.
1. Representatives – “The tribunals’ procedures are designed to provide a review process which is fair and just, and to ensure that applicants can fully put their case to the tribunals without the assistance of a legal practitioner or migration agent if they so choose. A representative can assist a vulnerable person with his or her case in a number of ways”.
2. “With limited exceptions, a representative must be a registered migration agent. A number of community and government organisations provide advice and assistance in migration matters. Children may be represented in the review process by a parent or guardian”.
3. “A vulnerable person who is an applicant may choose not to nominate a representative. The tribunals have no power under the Migration Act to appoint a person to act on behalf of an applicant, although the tribunals can encourage a vulnerable person to find representation”.
4. Conducting the Review – “Vulnerable persons may find it difficult to participate in the review process. Depending upon the vulnerable person’s age and/or the nature or severity of the person’s condition, impairment or illness, he or she may find it difficult to compile and present documentary evidence relevant to the claims. A vulnerable person may also find it difficult to give evidence or present arguments at a tribunal hearing or to follow the process of the review” Some of the options available for assisting vulnerable persons to participate effectively at a tribunal hearing are set out in paragraph 44
5. Notification of Tribunal Decisions – “If a member is concerned that a vulnerable person may find it difficult to understand the decision or may be distressed by the outcome of the review, the member should endeavour to ensure that the person receives appropriate support at the time they receive the decision”.
6. Options for Assisting Vulnerable Persons – these include,
•• “Allowing any other procedural accommodation that may be reasonable in the circumstances”.
•• “If the vulnerable person has difficulty providing oral evidence in person, or would find it difficult or stressful to attend the hearing in person because of physical, medical or psychological issues, allowing the vulnerable person to provide evidence via videoconference or other means”
1. Types of vulnerability and strategies to assist – “Vulnerable persons may exhibit one or more constraints in their ability to participate in the review process. Many of the strategies to assist, presented below, are similar”
2. “Impact of age
3. When considering the type of procedural adjustments, representation or support needed by a child applicant, or an elderly applicant, tribunal members and staff should take the child’s or elderly person’s wishes and best interests into consideration.
4. Children
5. Children process information differently from adults and may not be able to be as precise as an adult would be in giving evidence. Young children may not be able to put events into a wider context or put together events in a sequence. Children may attribute different importance to events and reactions. Children, depending on age, will pay more attention to some details rather than others. Feelings and reactions to events may also be different compared to adults who experienced similar events.
6. Some strategies for assisting children include:
•• Create an informal setting for the hearing.
1. • Recording equipment should be placed so that the child does not have to raise hi s or her voice to be recorded.
2. • It will usually be appropriate for an adult person who is trusted to be present whe n the child is providing evidence. This person may or may not be the child’s guardian or representative.
3. • When taking evidence from a child inform him or her that if they do not know an answer to a question, they should simply say so.
4. • Reassure the child that he or she is not expected to answer one way or another and that he or she should just answer what they can.
5. • If the child becomes distressed or uncomfortable during the hearing, ask if he or she would like a break or to talk to someone privately.
6. • Reassure the child that he or she is not expected to answer one way or another and that he or she should just answer what they can”
1. Ground 2: Failure to Consider and Determine Integer of Claims
2. The Tribunal failed, giving rise to jurisdictional error, to consider and determine an integer of the claims that squarely arose, being what would occur if the First, Second and Third Applicants were unable to gain access to residence in Indonesia after departure from Australia
3. 37) The obligation on the Tribunal was to deal with the claims advanced, or that squarely arose, to the extent they were supported by probative material.
4. 38) In WZAUA v Minister for Immigration [2016] FCCA 2640 (30 November 2016) Judge Driver described the role of the Tribunal and the issue of jurisdictional error in these terms, at [62] to [64] (my emphasis):
“The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act , ss.474 and 476 ; Plaintiff S157/2002 v The 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 Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The Tribunal only makes a jurisdictional error if it:
a.a. identifies a wrong issue;
b.b. asks the wrong question;
c.c. ignores relevant material; or
d.d. relies on irrelevant material,
1. 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 relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf & Anor [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.
2. In conducting a review the Tribunal must consider all of the claims made by an applicant and all of the integers of those claims as articulated by the applicant or which arise clearly from the material provided: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; [2003] 197 ALR 389; (2003) 73 ALD 321 at [23]- [25] and [32]-[34] per Gummow and Callinan JJ (“Dranichnikov”); Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J (“Htun”).
3. The law as identified in Dranichnikov and Htun gives rise to two questions which a Tribunal must determine on the facts of each case, namely:
a.a. was the relevant claim actually made and clearly articulated, or clearly discernible from the claim made; and asks the wrong question;
b.b. was the claim identified and considered by the Tribunal?
• 39) The Applicants had all raised a claim that they faced refoulment from Indonesia in the event they were deported there.
• 40) In respect of the First Applicant no findings were made as to where she was born, where she had lived throughout her life and whether she had ever lived in Indonesia. Similarly, in respect of the Second and Third Applicants no findings were made as to where they were born, where they had lived throughout their lives and whether they had ever lived in Indonesia. It is of note that the delegate had generally accepted her claims as to her life story in Malaysia (CB153-4).
• 41) No specific findings were made as to how the Applicants would enter Indonesia nor was any consideration given to how they would evidence and advance any assertion of a right to citizenship of that country. No findings were made that they possessed passports, identity papers or any similar material. Nor was it clear that they enjoyed family or other support within Indonesia.
• 42) This left undetermined and unconsidered what would occur if the First, Second and Third Applicants were unable to gain access to residence in Indonesia after departure from Australia (despite any legal right to citizenship) and were refouled to Malaysia or Myanmar/Burma.
• 43) This claim was not dealt with by findings such as:
• • “the applicants would automatically be considered to be Indonesia citizens by dint of the fact that they had Indonesia parents or an Indonesia mother” (CB340)
• • “because I have found the first-named applicant to be an Indonesian national, it follows that the second and third-named are not stateless, but have a right to Indonesian citizenship themselves” (CB341 at 45)
• • “The second and third applicants can freely live as Indonesian citizens with their Indonesian mother and a pathway exists for the husbands of Indonesian citizens to become naturalised in due course” (CB341 at 48)
• 44) These findings left unresolved the question of how and if the Applicants could actually both obtain Indonesian citizenship and enter that country and whether Indonesia might refoul them if they attempted to enter (something specifically raised by the Applicants (CB257 at 7.8-9)).
• 45) In respect of the Second and Third Applicants the Tribunal accepted their situation was, “somewhat complex”, but seemingly dealt with this through the finding:
2. “The complexity is largely the result of the first named-applicant and her husband trying to pass the applicants off as stateless Rohingyas when the Tribunal finds that they have Indonesian citizenship or can avail themselves of it”. (CB341 at 47).
3. 46) The Tribunal accordingly failed to consider and determine a claim that squarely arose, might the Applicants suffer relevant harm if they were unable in fact to enter and reside in Indonesia, including if Indonesia refouled them?
4. Ground 3: Failure to Apply the Proper Test
5. The Tribunal failed, giving rise to jurisdictional error, to consider what would occur if the Tribunal was wrong in its findings as to the identity of the First Applicant.
6. 47) The Tribunal further failed to properly apply the statutory test, by failing to consider might the Applicants suffer relevant harm if the Tribunal was in fact wrong as to its findings as to the identity of the First Applicant.
7. 48) Those findings having been made on balance and in a way that did not (or indeed could not reasonably have), exclude all doubt on the question of the identity of the First Applicant (and therefore the validity of the claims themselves), the Tribunal was required to consider the residual aspect of the claim that remained and apply the real chance test properly. It failed to do so.
8. Ground 4: Unreasonable Failure to Consider Evidence Required to be Considered
9. The Tribunal failed, giving rise to jurisdictional error, to consider material obtained from the United Nations High Commission for Refugees (UNHCR) in Malaysia indicating that the First Applicant was born in Malaysia to a Rohingya father and an Indonesian mother, in circumstances where the Tribunal made a positive finding as to the reliability of other material obtained from the same source and used it adversely to the Applicants.
10. 49) The Tribunal used adversely to the Applicants material obtained from the UNHCR which stated that “the applicant is not the biological mother of [Second Applicant], his mother is stated to be an Indonesian national named [name 1]” (CB113) and in conjunction with DNA evidence, concluded the First Applicant was in fact ‘[name 1].
11. 50) In doing so the Tribunal considered but disregarded a marriage certificate that had been provided as evidence of the name and ethnicity of the First Applicant stating, “I therefore place more weight on the documentation provided by UNHCR in determining her real name” (CB340 at 38) and further, “if the UN declared that she was an Indonesian national it is reasonable to assume that this was based on some documentary or other evidence” (CB340 at 41).
12. 51) In reasoning in this way however the Tribunal failed to consider other material also obtained from the UNHCR in the same way, which included, “information available on file indicates that the applicant was born in Malaysia to a Rohingya father and an Indonesian mother; she married her husband in 1999” (CB113)
13. 52) It was unreasonable and jurisdictional error to fail to consider this evidence as favourable to the Applicant, with its source and providence identical to evidence relied upon in a significantly adverse way. The submissions below from [50] address the relationship between the failure to consider a relevant consideration and unreasonableness.
14. Ground 5: Unreasonableness
15. The Tribunal erred and acted outside jurisdiction by making unreasonable material findings of fact.
16. 53) It is submitted that the Tribunal made unreasonable findings of fact in respect of two matters; the name of the father of the First Applicant and the capacity of the Applicants to enter and reside within Indonesia.
17. 54) The Tribunal unreasonably concluded that the name ‘[name 2]’ was, “a Javanese name” (CB338 at 25) “distinctly Javanese” (CB339 at 35), “identifiably Indonesian” (CB338 at 26) and “peculiarly Indonesian” (CB338 at 25) and used that finding in concluding that the father of the First Applicant was in fact Indonesian.
18. 55) The material in fact only suggested the name was used in Indonesia (CB339 at 35), but also elsewhere in South East Asia (CB311 at 3), that, “a review of Malaysian databases indicate its commonality in that region” (CB 317 at 4.7), that it was based on an Arabic word ‘name 3](CB250 at 5.20), that Rohingya people commonly adopted Malaysian names (CB317 at 4.4), that the name ‘[name omitted]’ was a common Burmese name and an obvious transliteration of ‘[name 2]’ (CB 317 at 4.8). All the contrary evidence was disregarded by the Tribunal or not considered.
19. 56) In respect of the availability of citizenship and residence in Indonesia the Tribunal concluded “the applicants would automatically be considered to be Indonesian citizens by dint of the fact that they had Indonesian parents or an Indonesia mother” (CB340 at 44) and, “The second and third named applicant can freely live as Indonesian citizens with their Indonesian mother” (CB 341 at 48) and further, “I have found that she (and her children) has such a right and may have already, or can exercise that right” (to return and reside in Indonesia) (CB 341 at 50).
20. 57) There was no reasonable basis for these findings in the material, including the material as to Indonesian citizenship law (CB240-2).
21. 58) In part these unreasonable findings rested on a failure to consider aspects of the material that tended against the findings made. Particularly the matters detailed above at [44].
22. 59) The connection between an alleged failure to consider a relevant consideration properly and unreasonableness was considered by Mason J in Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (31 July 1986) at [15] and in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) (Hayne, Kiefel and Bell JJ) at [72].
23. 60) The Applicants submit that unreasonableness can be demonstrated when material illogical and/or irrational reasoning has occurred, even when the ultimate conclusion is not necessarily so unreasonable that no reasonable decision maker could have made it.
24. 61) In SZSFS v Minister for Immigration and Border Protection [2015] FCA 534 (29 May 2015) Logan J was concerned with the contention that credit findings were unreasonable because findings at to the symptoms of a mental illness were not considered as possible explanations of matters considered to be potentially adverse to credit and stated:
“Irrationality or unreasonableness may not only be found in a disproportionate response. It may also be found in an exercise of a discretion which is arbitrary, vague and fanciful or beyond the bounds of reason. This was, in my view, the point made, by reference to earlier authority, by Hayne, Kiefel and Bell JJ in Li at [64]-[65]. For reasons already given, I consider that this understanding of what may amount to unreasonableness is also applicable to unreasonableness in a conclusion as to whether an administrative decision-maker such as the Tribunal is or is not satisfied with respect to a particular matter”.
1. 62) Logan J in SZRHL v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1093 said:
2. “Not every factual misapprehension by the Tribunal will give rise to a jurisdictional error of this kind. Some may be, as Mason J stated in Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40, so ‘insignificant that failure to take it into account could not have materially affected the decision’. SZQRW v Minister for Immigration and Citizenship (2012) 134 ALD 454 (SZQRW) is a recent example of that kind. In SZQRW, the independent merits reviewer had misstated the appellant’s version of events in part of her reasons. The Full Court distinguished the facts of the case from those in VAAD and concluded that no jurisdictional error had occurred because (at [56]):
1. The error made by the reviewer in this case is to be characterised in the same way as the error in the MZXSA, namely, as an instance of errant fact-finding which occurred in the course of considering the appellant’s claims, and which was relied on only in a peripheral way. In other words, this was an error in fact-finding which could not have materially affected the decision nor have deprived the appellant of the possibility of a successful outcome”
2. 63) It is submitted that the findings as to the name ‘[name 2]’ were highly material to the ultimate finding as to identity which then was used to dispose of the claims advanced. Similarly, the findings as to a capacity to enter and remain within Indonesia were also highly material to the disposal of the claims.
3. 64) Neither finding was reasonably made and no reasonable decision maker would have reached the conclusions that the Tribunal did.
4. 65) Respectfully submitted.
The Respondent’s Submissions
36. The submissions for the Respondent, filed 5th June 2018, were as follows:
1. 1) The Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 13 April 2017 (CB 334 to 343), in which the Tribunal decided to affirm the decision of the First Respondent's delegate (Delegate) not to grant the Applicants Temporary Protection (Class XD) visas pursuant to section 65 of the Migration Act 1958 (Cth) (Act) (CB 147 to 166).
2. 2) These submissions are filed by the First Respondent in accordance with Court orders made on 26 September 2017. They respond to the Amended Application for judicial review filed on 30 May 2018 and the written submissions filed by the applicant on 30 May 2018 (AS).
3. 3) The First Respondent respectfully submits that the applicant's pleaded grounds do not establish jurisdictional error. For the reasons that follow, the application ought to be dismissed with costs.
4. BACKGROUND
5. 4) The Applicants applied for Protection (Class XA) visas on 15 October 2013. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth), from 16 December 2014 the applications were taken to be, and to have always been, valid applications for Temporary Protection (Class XD) visas.
6. 5) The First Applicant (the Applicant) claims to fear harm on the basis that she practices Sunni Islam and she’s a stateless person of Rohingyan ethnicity (CB 3).
7. 6) The Applicant arrived in Australia as an unauthorised maritime arrival in February 2013 with the Second and Third Applicants. The Second and Third Applicants are the Applicant's dependent children. The Second and Third Applicants completed 'Part D' forms as members of the Applicant's family unit who do not have their own protection claims (CB 32 and 39).
8. 7) The Delegate originally refused to grant the visas on 8 June 2015. The Delegate was not satisfied that the Second and Third Applicants were members of the same family unit as the Applicant, or that the Applicant is a person in respect of whom Australia has protection obligations (CB 151 and 166).
9. 8) The Applicants applied to the Tribunal for review and were invited to attend a hearing (CB 179). On 23 February 2017 the Tribunal agreed to the Applicant's request for a postponement and rescheduled the hearing (CB 209). On 15 March 2017, the Applicants appeared before the Tribunal with the assistance of an Indonesian interpreter, and their migration agent, to give evidence and present arguments (CB 268 to 270). The Applicant's husband was also called to give evidence.
10. Tribunal decision
11. 9) On 13 April 2017 the Tribunal affirmed the Delegate's decision.
12. 10) The Tribunal found that the Applicant was not a "reliable, credible or truthful witness" and had "fabricated her claim in order to be granted a protection visa" (CB 339 at (32]). In particular, the Tribunal did not accept that the first applicant's name was [name omitted], nor that she was born to a Rohingya father and an Indonesian mother, nor that she was stateless within Malaysia. To the contrary, the Tribunal was satisfied that both her parents were Indonesian and that either she already has, or is able to obtain Indonesian citizenship (339 at (33]).
13. 11) From [33]-(50] (CB339 to 341), the Tribunal outlined inconsistencies and problems it identified with the Applicant's evidence. The Tribunal relevantly made the following findings and comments in relation to the Applicant's evidence:
2. a) identity: the Tribunal did not accept that the first plaintiff's name was ‘[name omitted]’. Information received from the UNHCR indicated that the biological mother of the Second Applicant was an Indonesian national named '[name 1]'. In addition, DNA test results indicated that the Applicant was the biological mother of the Second Applicant. Furthermore, independent country information about Javanese naming conventions also supported the finding that the Applicant was Indonesian. Although the Tribunal took into account the Applicant's post-hearing submission about the reasons for the inconsistency in the Applicant's father's name and possible transliteration issues, the Tribunal placed little weight on this evidence as it considered it to be vague and inconsistent and never proffered until the inconsistency was brought to the Applicant's attention. It also placed little weight on a marriage certificate that stated the applicant's name as '[name omitted]’ because it was difficult to verify the veracity of this document (CB 339 to 340 at [34] - [38]). Instead, the Tribunal placed more weight on the documentation provided by UNHCR in determining the Applicant's real name;
3. b) Rohingya: because the Tribunal found the Applicant to be an Indonesian national with Indonesian parents, it follows that she could not have had a Rohingya uncle who raised her. The Applicant's inability to speak Rohingya was consistent with this finding (CB 340 at [39]);
4. c) statelessness: for the same reasons above, the Tribunal did not accept that the Applicant was stateless. Given that she had provided no evidence that she had sought to gain Indonesian citizenship, the Tribunal was satisfied this was because she already had the required documentation, or because she had not yet taken all steps to avail herself of the right to enter and reside in Indonesia as section 36(3) of the Act requires (CB 340 at [42]).
5. 12) In light of the above, the Tribunal rejected the Applicant's claims and also rejected a post-hearing claim made on behalf of her two children for the same reasons (CB 341 at [45]-[48]). As it did not accept that the Applicant was stateless, but rather an Indonesian national, it followed that it was not satisfied that she was ever denied Burmese citizenship, was arrested and forced to pay bribes, or would be jailed on return to Malaysia for having no documentation. Further, even if the Tribunal were to accept that she was refused refugee status in Malaysia as she claimed, it was satisfied that this “would have been because she was Indonesian and not part-Rohingya” (CB 341 at [49]).
6. 13) Accordingly, the Tribunal was not satisfied that the plaintiffs were persons in respect of whom Australia had protection obligations as set out in sections 36(2)(a) or (aa) of the Act, and dismissed their claims.
7. APPLICATION FOR JUDICIAL REVIEW
8. 14) On 30 May 2018, the Applicant filed an Amended Application for judicial review which pleads the following grounds:
9. 1) Failure to Hear, Consider and Determine on Review Claims Arising
10. The Tribunal failed, giving rise to jurisdictional error, to hear, consider and determine on review the claims advanced by the Second and Third Applicants, which were related, but separate, from those advanced by the Frist Applicant.
11. 2) Failure to consider an integer of a claim
12. The Tribunal failed, giving rise to jurisdictional error, to consider and determine an integer of the claims, that squarely arose, being what would occur if the First, Second and Third Applicants were unable to gain access to residence in Indonesia after departure from Australia.
13. 3) Failure to apply the proper test
14. The Tribunal failed, giving rise to jurisdictional error, to consider what would occur if the Tribunal was wrong in its findings as to the identity of the First Applicant.
15. 4) Failure to consider evidence required to be considered
16. The Tribunal failed, giving rise to jurisdictional error, to consider material obtained from the United Nations High Commission for Refugees (UNHCR) in Malaysia indicating that the First Applicant was born in Malaysia to Rohingya father and an Indonesian mother, in circumstances where the Tribunal made a positive finding as to the reliability of other material obtained from the same source and used it adversely to the Applicants.
17. 5) Unreasonableness
18. The Tribunal erred and acted outside jurisdiction by making unreasonable material findings of fact in respect of the name of the First Applicant's father and the citizenship status of the Applicants.
19. CONSIDERATION
20. Ground 1: Failure to Hear, Consider and Determine on Review Claims Arising
21. 15) By Ground 1 and AS (10] to (36], the Applicants assert that the Tribunal failed to consider separate claims raised by the Second and Third Applicants. The First Respondent submits that Ground 1 is without merit and ought be dismissed.
22. 16) At the time of application, the Second and Third Applicants completed 'Form D - Application for a member of the family unit'. Form D specifically states that it is for a member of the same family unit who does NOT have their own claims for protection.
23. 17) All of the Applicants were invited to, and accepted, the opportunity to attend the Tribunal hearing (CB 209 to 214). The Tribunal complied with its statutory obligations by inviting the Applicants to the hearing.
24. 18) The day before the Tribunal hearing, the Applicants Migration Agent provided lengthy submissions (said to be 40-50 pages), which included a statement to the following affect: "we note that should circumstances arise whereby the Tribunal does not accept Australia has Protection Obligations for Applicant One, that Applicant Two and Applicant Three raise their own claims for protection. Such claims arise due to their Rohingya ethnicity, Muslim religion, their father's accepted claim for Protection in Australia and the DNA results confirming paternity" (CB 256 at [6.2]). Given the submissions were lengthy and it was the day before the hearing, the Tribunal registry asked the Migration Agent to extract and summarise the essential elements of the claim and direct the Member to those parts of the submission (CB 266).
25. 19) At the hearing, the Tribunal Member specifically asked the Applicant whether her children had separate claims or whether they came solely under the Applicant's claims. The Applicant stated that they relied on her claims alone (CB 335 at [9]). There is no evidence that, at any time during the hearing either the Migration Agent, the Applicant or the Second and Third Applicant contradicted the statement of the Applicant that the Second and Third Applicant had no separate claims.
26. 20) The Applicant has not filed any transcript of the Tribunal hearing to indicate that there was any confusion regarding the Applicant's statement that her children did not have their own separate claims. The First Respondent submits that having expressly disavowed any separate claims made by the Second and Third Applicants, the Tribunal would have had no jurisdiction to consider the Second and Third Applicants claims in their own right: SZQAS v Minister for Immigration and Citizenship [2011] FMCA 555 at [48]. Further, no claim was ever advanced by the Migration Agent or the Applicants that a further or separate hearing was necessary. The Tribunal was not required to go behind the information provided to it by the Applicant as to the claims of the children and the Applicant had the authority to act for the Second and Third Applicants as they were both her minor children: CUUJ 5 & Anor v Minister for Immigration& Anor [2016] FCCA 1886 (28 July 2016), at [49] and [52].
27. 21) Finally, following the hearing, the Applicant's representative then filed post hearing submissions stating that the Second and Third Applicants raised their own claims for protection on the basis of their ethnicity as Stateless Rohingya asylum seekers (CB 327 at [3.12]).
28. 22) The Tribunal did, in fact, consider the claims identified in the submissions of the Migration Agent, see [45] to [48] of the Tribunal's reasons (CB 341). In particular, the Tribunal considered the claims that the Second and Third Applicants were stateless Rohingya Muslims and found that was not the case (CB 341 at [47]). It is clear from a fair reading of the Tribunal's reasons that the Tribunal considered all of the claims raised.
29. Ground 2 and 3: Failure to consider an integer of a claim and Failure to apply the proper test
30. 23) By Ground 2 and AS [37] to [46], the Applicants assert that the Tribunal failed to consider an integer of the Applicants claim which arose squarely on the facts; being what would happen to the Applicants if they were unable to gain access to Indonesia. The First Respondent submits that Ground 2 is misconceived and should be dismissed.
31. 24) By Ground 3 and AS [47) to [48], the Applicants assert that the Tribunal failed to consider what would happen if it was wrong about its findings in relation to the Applicant. The First Respondent submits that the Tribunal's findings were open to it in the circumstances for the reasons that it gave.
32. 25) In both these grounds, the Applicants appear to contend that the Tribunal failed to apply the ‘what if I am wrong test’: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 56 ALD 481; [1999] FCA 719 at 240.
33. 26) The First Respondent contends that both grounds fail to assert or establish that any of the Tribunal's findings are attended by any doubt. In those circumstances, the Tribunal was not required to ask 'what if I am wrong?': Minister for Immigration and Ethnic A/airs v Guo Wei Rong (1997) 48 ALD 481; [1997] HCA 22 at 578. The Tribunal noted that while the circumstances surrounding the children were complex, that the complexity arose in this case because the Applicant and her husband were trying to “pass the applicants off as stateless... “. The First Respondent submits that the language used by the Tribunal from [48] to [50) of its reasons is clear and does not demonstrate doubt.
34. 27) Further, the First Respondent submits that:
35. a) it was a matter for the Applicant to advance their claims and the evidence that she wished to have considered as to why she and the children applicants were owed protection obligations and the Tribunal was not required to make her case for her: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [76].
36. b) it was open to the Tribunal to rely on inconsistencies in the Applicant's evidence in making adverse credibility findings about the Applicant's claims relating to her family: Re Minister for Immigration and Multicultural Affairs: Ex Parte Durairajasingham (2000) 168 ALR 407; [2000) HCA 1 at [67); and the
37. c) Tribunal was not required to give the applicant the 'benefit of the doubt': SZHIS v Minister for Immigration and Multicultural Affairs [2006] FCA 1614 at (10)-(11].
38. 28) The Tribunal found that the Applicant and her children could live freely in Indonesia (CB 341 at [48)). The First Respondent submits that this was a finding of fact open to it in the circumstances.
39. Ground 4: Failure to consider evidence
40. 29) By Ground 4 and AS (49) to (52), the Applicants assert that the Tribunal failed to consider material obtained from the United Nations High Commission for Refugees (UNHCR) in Malaysia indicating that the Applicant was born in Malaysia. The First Respondent submits that this ground is without merit and should be dismissed.
41. 30) The Tribunal is not required to refer to every piece of evidence and contention made in its decision: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630. In an event, the Tribunal did expressly consider the material obtained from UNHCR from (26) of its reasons. The Tribunal found that based on some of that information, together with the DNA results, the Applicant was an Indonesian national by the name of [name 1] (CB 339 at (35)). The Tribunal considered the evidence provided, including the marriage certificate (at (34)), and placed weight on that evidence as it considered appropriate.
42. 31) To the extent that the Applicant claims that the Tribunal placed inappropriate weight on the applicant's evidence when assessing her claims, the assessment of the cogency and weight of evidence is a matter for the Tribunal: SEBA v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 90 at (15).
43. 32) The First Respondent submits that the Tribunal's findings were open to it for the reasons that it provided.
44. Ground 5: Unreasonableness
45. 33) By Ground 5 (53) to (64), the Applicant contends that the Tribunal made unreasonable material findings of fact in respect of the name of the Applicant's father and the citizenship status of the Applicants.
46. 34) The First Respondent submits that this ground is without merit and should be dismissed.
47. 35) To discern irrationality or illogicality in the Tribunal's reasoning, more must be shown than simply the fact that the decision is one upon which reasonable minds may differ: SZOOR v Minister for Immigration and Citizenship (2012) FCAFC 58; (2012) 202 FCR 1 at (84)-(85) citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131) per Crennan and Bell JJ. As Crennan and Bell JJ stated in SZMDS at [135).
48. 36) The Applicants have not identified the basis upon which they claim that it was not open to the Tribunal to make the impugned finding. It is well established that findings of adverse credibility, where such findings are reasonably open on the evidence before it, are properly the function of the decision-maker and generally not susceptible to judicial review by the Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67).
49. The Tribunal was not obliged to give the applicant a running commentary as to its assessment of her own evidence: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [48).
50. 38) The Tribunal found that there was a range of country information that supported that the name [name 2] was Javanese (CB 339 at (35)). The Tribunal considered the arguments made by the Applicant and her husband regarding the name but ultimately determined to place more weight on the combined evidence of the country information, the DNA information and the UNHCR information.
51. 39) The First Respondent submits that the Tribunal's findings were open to it on the evidence available and the decision cannot be characterised as "unreasonable" in the sense that it was "illogical", "irrational", "disproportionate" or "lacking justification", which is the relevant threshold for jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]; Minister for Immigration and Citizenship v Li [2013) HCA 18 at [68), [74) and [76). Nor can it be considered so unreasonable that no reasonable decision maker could have made it.
52. Conclusion
53. 40) For the above reasons, the First Respondent submits that the application should be dismissed with costs.
Consideration & Disposition
a.37. The following statements of principle are directly relevant to the Court’s determination of the current Application.
b.38. First, it is important to recall the following statements of principle regarding “credibility findings” (with some overlap with “legal unreasonableness”, which is discussed further below).
c.39. In ARG15 v Minister for Immigration and Border Protection, the Full Court (Griffiths, Perry and Bromwich JJ) said, at [44] – [47] (emphasis in original):
1. [44] It is convenient to commence the consideration of ground 1 by reference to the reasons of the majority in SZMDS. Significantly, that case related to a judicial review challenge to a decision of the Tribunal which dismissed a review application in respect of an unsuccessful application for a protection visa (which is also the case here). The state of satisfaction as expressed in ss 36 and 65 of the Migration Act was held to involve a jurisdictional fact. Justices Crennan and Bell held at [130] that illogicality or irrationality may constitute a basis for judicial review in respect of the Tribunal’s decision concerning the state of satisfaction required under s 65, but their Honours emphasised that not every lapse in logic would give rise to jurisdictional error and the Court should be slow, although not unwilling, to interfere in an appropriate case. They added at [131] that it was insufficient that different minds might reach different conclusions on the jurisdictional fact and that the test for illogicality or irrationality:
2. ... 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.
3. [45] After a detailed consideration of the Tribunal’s process of reasoning in the light of all the evidence before the Tribunal, Crennan and Bell JJ concluded at [135] that a logical or rational decision maker could have come to the same conclusion as the Tribunal:
4. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
5. [46] The other member of the majority in SZMDS, Heydon J, came to the same conclusion that the Tribunal’s reasoning was not illogical.
6. [47] Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error…
a.40. In the same case, at [83], the Full Court summarised relevant principle regarding credibility findings:
1. [83] Many of the relevant legal principles which guide the review or a judicial review of findings concerning credibility were recently discussed by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [36]-[44] per McKerracher, Griffiths and Rangiah JJ. They may be summarised as follows:
2. (a) McHugh J’s oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds; (b) the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J); (c) in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and (d) without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:
3. (i) failure to afford procedural fairness; (ii) reaching a finding without a logical or probative basis; (iii) unreasonableness; and/or (iv) other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [20]- [21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at[31], as referred to approvingly by the Full Court in CQG15 at [40]-[42].
a.41. More recently, in BNH16 v Minister for Immigration and Border Protection, the Full Court (Tracey, Farrell and Charlesworth JJ) said, at [35] and [36] (emphasis added):
1. [35] In the event the Tribunal perceived inconsistency and found aspects of the evidence to be implausible for the reasons which it gave. It was not bound to accept the solicitor’s attempts to recast the words used and render them more intelligible.
2. [36] There were things that were said which, on one construction of the evidence, supported the conclusions to which the Tribunal came. We accept that other constructions were available but, in adopting those which it did, we do not consider that the Tribunal made any jurisdictional error. As Crennan and Bell JJ observed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; [2010] HCA 16 at [131]:
3. 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.
a.42. Then at [44] – [45], the Full Court in BNH16 said (emphasis added):
1. [44] The material, oral and written, before the Tribunal was, as BNH16’s solicitor contended before the Tribunal, complex and open to misinterpretation. That said, there was a logical basis, in the evidence, which supported the Tribunal’s findings: cf CQG15 at [38(b)], [61]–[64]; ARG15 at [83(d)(ii)], [96]; Gill at [59]–[62], [72]–[74]; BSJ16 at [40], [42]–[45].
2. [45] It was not, in any event, a matter to which the Tribunal accorded any particular weight in making its adverse credibility findings. As already noted, it treated that inconsistency as “relatively minor”. In this context, we have had regard to the observations of Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at 221; [2016] FCA 516 at [55]:
3. [A]llegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 at 598-599[83]- [84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship [2013] FCA 566; (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67]. (Emphasis added.)
4. These observations were cited with approval by the Full Court in CQG15 at [60]...
a.43. Secondly, a seminal overview of the jurisprudence regarding legal unreasonableness is set out in Allsop CJ’s judgment in Stretton, at [2] – [14] and [21]. Because of their importance, including his Honour’s discussion of the High Court decision in Li, it is as well to set out these paragraphs in full (emphasis in original; underlined emphasis added):
1. [2] The proper elucidation and explanation of the concepts of jurisdictional error and legal unreasonableness does not depend on definitional formulae or on one verbal description rather than another. Both concepts concern the lawful exercise of power. For that reason alone, any attempt to be comprehensive or exhaustive in defining when a decision will be sufficiently defective as to be legally unreasonable and display jurisdictional error is likely to be productive of complexity and confusion. One aspect of any such attempt can be seen in the overcategorisation of more general concepts and over-emphasis on the particular language of judicial expression of principle. Thus, it is unhelpful to approach the task by seeking to draw categorised differences between words and phrases such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other.
2. [3] These words and phrases express a rule that is directed to the limits of the exercise of power, and, because of that function, are necessarily expressed as abstractions applying to the infinite variety of decision-making under variously expressed statutory provisions, in a wide variety of legal contexts.
3. [4] In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, the High Court made clear that legal reasonableness or an absence of legal unreasonableness was an essential element in the lawfulness of decision-making; Parliament is taken to intend that statutory power will be exercised reasonably: see Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J).
4. [5] These statements of general principle in the three judgments (French CJ, and Hayne, Kiefel and Bell JJ, and Gageler J) variously drew upon and drew together a number of well-known expressions and bodies of principle including, and without repeating all citations: the Constitutional necessity for legal control of discretion (power): Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 629-630; the necessary confinement, explicit or implicit, of any statutory discretion or power by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505; the implied legislative intention to condition statutory discretionary power by a requirement that it be exercised reasonably: Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 at 36; Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 at 554 [116]; Shrimpton at 620; South Australian Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Limited [1977] HCA 38; 139 CLR 449 at 466; and Minister for Aboriginal Affairs v PekoWallsend Limited [1986] HCA 40; 162 CLR 24 at 41-42; the necessity that a discretion be exercised according to the rules of reason and justice, not private opinion, according to law, and not humour, and within the limits that an honest and competent person would confine herself that is “legal and regular, not arbitrary, vague and fanciful”: Sharp v Wakefield [1891] AC 173 at 179; Shrimpton at 620; R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; 113 CLR 177 at 189; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 62 [9]; the illegitimacy of the exercise of a discretion in reaching a conclusion that no reasonable person could ever come to: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229, or where no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 at 1064; the requirement that the satisfaction or opinion of a decision-maker about the existence of a matter, in particular a jurisdictional fact, be reasonably formed: Council of the Municipality of Bankstown v Fripp [1919] HCA 41; 26 CLR 385 at 403; R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118119, (though not referred to in Li, Starke J in Boucaut Bay Company Limited (in liq) v The Commonwealth [1927] HCA 59; 40 CLR 98 at 101, approved by Windeyer J in Commissioner of Taxation of the Commonwealth of Australia v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; 128 CLR 28 at 57, said that reasonableness here meant not dishonestly, capriciously or arbitrarily and upon a rational ground for the belief); the settled principles of appellate review of judicial discretion in House v The King [1936] HCA 40; 55 CLR 499, and the guidance found therein in the analogy with judicial review of administrative action: Minister for Aboriginal Affairs v Peko-Wallsend Limited 162 CLR at 42; the principle that it is open to infer legal error if the result of the decision appears unreasonable assuming the correct question was addressed and the law was followed in the making of the decision: Avon Downs Proprietary Limited v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360; the principle concerned with unreasonableness in the exercise of delegated lawmaking power – if such laws were partial and unequal or manifestly unjust, or by operation they involved oppressive or gratuitous interference with rights that could not be reasonably justified: Kruse v Johnson [1898] 2 QB 91 at 99-100; and the fact that the conditioning of a power to be exercised reasonably has an analogy with the conditioning of the power with the obligation to afford procedural fairness: Gageler J in Li at [92].
5. [6] Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an “outcomefocused” conclusion without any specific jurisdictional error being identified: Singh at [44].
6. [7] It is in relation to the second context, the “outcomefocused” application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes productive of complexity and confusion. There is “an area of decisional freedom” of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. The boundaries can be expressed by the descriptions and explanatory phrases of the kind set out in [5] above.
7. [8] The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].
8. [9] The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
9. [10] This concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of Li in the judgment of Hayne, Kiefel and Bell JJ contained two (different) “tests”: (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality’s discussion of unreasonableness at [63][76] in Li should be read as a whole – as a discussion of the sources and lineage of the concept: [64][65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68][71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76].
10. [11] The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
11. [12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
12. [13] The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
13. [14] Before saying something as to the primary judge’s approach here, some salient features that attend this decision should be stated, with the clarity they demand. Mr Stretton, when aged 54 years, sexually abused his eight or nine year old granddaughter while she was under his care on three occasions by touching and rubbing her vagina underneath her underpants directly on her skin to a degree and extent to make the child feel sore. The crimes were committed when Mr Stretton was affected by alcohol. A psychologist, whose report was before the Minister, described his pattern of alcohol use as “unwise” and one that had developed after a childhood marked by physical and mental abuse. These essential facts should not be lost sight of in assessing the harshness of the consequences that might flow from, ultimately, what were Mr Stretton’s own actions.
14. …
15. [21] The difficulty with the reasoning is that it is expressed as the primary judge’s view as to what was reasonable. He, himself, makes an evaluation of what is necessary for the protection of the Australian community, principally, if not wholly, however, by reference to the young children in Mr Stretton’s immediate family. It would seem that this approach was brought about by a view of the need for the assessment to be objectively unreasonable. This does not carry with it the authority for the Court to reach its own view of what is reasonable or not, or what is necessary, and then, without more, to supplant the view of the Minister. It is not a correct approach for the Court on judicial review to assess the lawfulness of the decision under s.501 by asking whether the exercise of discretion was necessary for the purpose. That an assessment whether the decision-maker’s conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable. The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion. Depending upon the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision-maker ought to approach the matter. The decision and statutory context in Li was an example of this. Here, the decision was not a procedural decision; it was a substantive one concerned with an evaluation of the protection of the Australian community by a Minister of the Crown, personally.
a.44. Finally, it is apposite to note the following brief comment from the classic decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (“Guo”). At p.576 of the plurality judgment (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), the Court said:
1. In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.
a.45. In the light of these statements of principle, I turn to the Applicant’s Grounds of Review.
b.46. For ease of reference, I set out again Ground 1 and its brief explanation as set out in the Amended Application:
1. Ground 1: Failure to Hear, Consider and Determine on Review Claims Arising
2. The Tribunal failed, giving rise to jurisdictional error, to hear, consider and determine on review the claims advanced by the Second and Third Applicants, which were related, but separate, from those advanced by the First Applicant.
a.47. In relation to this Ground, I note that the Tribunal had before it (a) an Application for a Protection (Class XA) Visa, styled “Application for a member of the family unit”; (b) a post-hearing submission from Australian Migration Options Pty Ltd, which was undated but sent under cover of an email dated 22nd March 2017, in which it is stated in par.3.1 that both of the Applicant’s children “raise their own claims for protection”. This was on the basis that they are “Rohingya asylum refugees”; and (c) as earlier recorded, the Applicant was asked at the outset of her evidence before the Tribunal if her children had separate claims. The Applicant confirmed, as recorded at par.9 of the Tribunal’s reasons, that her children relied upon “her claims alone.”
b.48. Further, at pars.47 – 48 of its reasons, the Tribunal referred to parts of the post-hearing submission on behalf of all Applicants, and set out its admittedly brief consideration of the submission that relied upon the Convention on the Rights of the Child as it applied in support of the Second and Third Applicants.
c.49. In these circumstances, it cannot be said, as the Applicant submits, that the Tribunal did not consider the claims of the Second and Third Applicants. It had before it documentation that confirmed that all three Applicants were part of the one Application, namely the primary Application of the Applicant Mother. Although it had written submissions which confirmed that the Second and Third Applicants had individual claims, separate from their Mother, the Tribunal also had the later oral evidence of the Applicant Mother that her children’s claims were dependent upon her claims alone. And, as noted above, it set out briefly parts of the written submissions in relation to the Second and Third Applicants. In such circumstances, in my view, it is clear that the Tribunal considered the Applications by the Second and Third Applicants; the Tribunal determined them adversely to those Applicants for the reasons it gave.
d.50. Otherwise the comments highlighted earlier in these reasons at [40] and [41], from the Full Court decision in BNH16 in particular, in my view, apply to the facts and findings of the Tribunal here. And further, I accept the submissions on behalf of the First Respondent Minister.
e.51. In all the circumstances, and given the factual findings made by the Tribunal, Ground 1 is not made out.
f.52. Ground 2 was in the following terms:
1. Ground 2: Failure to Consider an Integer of the Claim
2. The Tribunal failed, giving rise to jurisdictional error, to consider and determine an integer of the claims, that squarely arose, being what would occur if the First, Second and Third Applicants were unable to gain access to residence in Indonesia after departure from Australia
a.53. In my view, Ground 2 (as clarified or articulated in the particulars accompanying it) is a species of the genus set out in Ground 3 regarding what is somewhat colloquially known as the “what if I am wrong” argument. Accordingly, it is apposite to consider and determine Grounds 2 and 3 together. Ground 3 is in the following terms:
1. Ground 3: Failure to Apply the Proper Test
2. The Tribunal failed, giving rise to jurisdictional error, to consider what would occur if the Tribunal was wrong in its findings as to the identity of the First Applicant.
a.54. Neither of these Grounds, in my view, is made out, for the following reasons.
b.55. First, The High Court made clear in Guo (at p.576) that: “Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.” In my view, this statement by the High Court makes the rather speculative Grounds 2 and 3 asserted by the Applicants to be misconceived. The Tribunal here made clear, logical findings on the evidence before it. The Tribunal accepted some evidence and rejected other parts of it. The reasons for this are clearly discernible. According to Guo, to go beyond what it did was both unnecessary and potentially jurisdictionally inappropriate.
c.56. Otherwise, (a) in my view the comments already noted from the Full Court’s decision in BNH16 apply equally here, and (b) I accept the First Respondent Minister’s submissions.
d.57. Ground 4 was in the following terms:
1. Ground 4: Failure to Consider Evidence Required to be Considered
2. The Tribunal failed, giving rise to jurisdictional error, to consider material obtained from the United Nations High Commission for Refugees (UNHCR) in Malaysia indicating that the First Applicant was born in Malaysia to a Rohingya father and an Indonesian mother, in circumstances where the Tribunal made a positive finding as to the reliability of other material obtained from the same source and used it adversely to the Applicants.
a.58. In my view, the central contention in this Ground of Review is unsustainable, again for the reasons given by the Full Court in BNH16. It is plain that the Tribunal here, at pars.26, 34, 35 and 36 of its reasons, set out the matters advanced before it regarding material from the UNHCR. Those paragraphs likewise disclose the Tribunal’s consideration and determination of that material. In my view, it is not open to argue that the Tribunal did not consider that material when plainly it did so. The Tribunal made plain that it placed greater weight on certain evidence than on other evidence. It is not for this Court to trammel upon issues of “weight”; to do so would expose this Court to making an impermissible inquiry into the merits of the Tribunal’s decision.
b.59. Otherwise, again I accept the submissions on behalf of the First Respondent Minister.
c.60. Ground 5 was in the following terms:
1. Ground 5: Unreasonableness
2. The Tribunal erred and acted outside jurisdiction by making unreasonable material findings of fact in respect of the name of the First Applicant's father and the citizenship status of the Applicants.
a.61. The central difficulty with this Ground of Review relates to the very clear but adverse assessment by the Tribunal of the Applicant Mother’s evidence. A crucial part of that evidence was the inability of the Applicant to speak Rohingyan in circumstances where she asserted that she had been brought up, since she was six years of age, by an Uncle who was himself Rohingyan. The findings by the Tribunal in the light of this evidence, together with the other evidentiary deficiencies highlighted by the Tribunal, in my view, were clearly open on the evidence.
b.62. Giving all proper consideration to the principles regarding (a) legal unreasonableness in Stretton (noted earlier in these reasons), and (b) findings in relation to credibility in CQG15 at [36] – [38] (noted earlier in these reasons), there is no basis for the contention that the Tribunal’s conclusion(s) were not open to it in the light of the evidence and the findings made. Further, again I recall the comments of the Full Court in BNH16 at [44] as follows:
1. The material, oral and written, before the Tribunal was, as BNH16’s solicitor contended before the Tribunal, complex and open to misinterpretation. That said, there was a logical basis, in the evidence, which supported the Tribunal’s findings …
a.63. Respectfully, the same comments can, and should, in my view, apply here to the Tribunal’s reasons and the findings it made.
b.64. For the reasons given, the Application should be dismissed. There must also follow an Order for costs in the First Respondent’s favour, payable by the Applicants, in accordance with the amount set out in Schedule 1 Part 3 of this Court’s Rules.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 31 May 2019
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