CBC23 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 85
•31 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CBC23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 85
File number(s): ADG 231 of 2023 Judgment of: JUDGE GERRARD Date of judgment: 31 January 2025 Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether failure to consider claims – whether applicant given sufficient opportunity to present his case – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5AAA, 5H(1), 5H(1)(a), 5J, 5J(1)(a), 5K, 5L, 5LA 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 36(3), 425, 427, 476
Migration Regulations 1994 (Cth) sch 2
Cases cited: ANP23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1153
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Craig v State of South Australia (1995) 184 CLR 163
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kopalapillai v Minister for Immigration and Multicultural Affairs(1998) 86 FCR 547
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
Pabbi v Minister for Home Affairs [2019] FCCA 1750
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submission/s: 29 November 2024 Date of hearing: 10 December 2024 Place: Adelaide Applicant: Self-represented with the assistance of an Albanian interpreter Counsel for the First Respondent: Maria Pappas Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 231 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CBC23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
31 JANUARY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the Minister to refuse to grant him a Protection (Subclass XA-866) (Permanent) visa (the visa). As will be explained, for the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal decision. On that basis, his application cannot succeed.
BACKGROUND
The applicant is a citizen of Albania (Court Book (CB) 184).
On 27 February 2015, he arrived in Australia on a Visitor (TV-651) visa which was valid until 27 May 2015, and was subsequently granted a Bridging (WA-010) visa until 17 November 2015 (CB 184).
On 16 November 2015, the applicant made a valid application for a protection visa (CB 90-126). In that application, the applicant appointed a registered migration agent as his representative (CB 97).
On 15 February 2019, by email to the applicant’s representative, the Department invited the applicant to attend an interview scheduled for 12 March 2019 (CB 172-174). The applicant attended that interview (CB 186).
On 10 July 2019, a delegate of the first respondent (the Minister) refused to grant the applicant the visa (CB 184-198). The delegate found the applicant did not have a well-founded fear of persecution for a s 5J(1)(a) reason, or face a real risk of significant harm if he enters or resides in Germany, a member of the Schengen countries, where he has a right to enter and reside (CB 193).
On 5 August 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 199-200).
On 3 November 2022, the applicant was invited to attend a hearing scheduled for 29 November 2022, which was later postponed to 24 January 2023 (CB 214-220, 238). On 24 January 2023, the applicant attended the Tribunal hearing, accompanied by his authorised representative and an Albanian interpreter (CB 334). Following that hearing, the applicant provided further material to the Tribunal and the hearing was resumed on 18 April 2023 (CB 338-360).
On 12 July 2023, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 365-387).
On 10 August 2023, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 23 pages long and spans 116 paragraphs, some of which contain several subparagraphs. This includes four pages containing extracts of relevant legislative provisions.
The Tribunal began by identifying the visa decision under review, noting that the applicant had applied for that visa on 16 November 2015. The Tribunal observed that a delegate of the Minister refused to grant the applicant the visa on the basis that the applicant had the right to enter and reside in any of the Schengen countries and he had not availed himself of that right. The delegate found that the applicant was not owed protection by application of s 36(3) of the Act, and the delegate was therefore not required to make a finding about whether the applicant met the protection visa criteria in ss 36(2)(a) and (aa) (at [2]).
The Tribunal confirmed that the applicant had appeared before it on 24 January and 18 April 2023 to give evidence and present arguments. The applicant’s representative was present on both dates and the hearings were conducted with the assistance of an Albanian interpreter. Neither the applicant nor his representative raised a complaint with respect to suffering any prejudice in the conduct of the Tribunal hearings (at [12]-[14]).
The Tribunal referred to the relevant legislative framework for the grant of a protection visa in s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth), identifying in particular that the applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) (at [15]). As the Tribunal found that the applicant did not satisfy s 36(2)(b) or (c), the Tribunal noted that the applicant must therefore satisfy either the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) (at [18]-[19]).
The Tribunal summarised the claims made by the applicant in a written statement accompanying his original protection visa application (at [30]). In short, those claims are:
·In 1998 and 1999, the applicant worked as a bookkeeper in an Albanian shoe factory for approximately a year. His employer (“X”) was involved in both legal and illegal activity.
·X would receive many death threats and the applicant himself was threatened by the families of girls who had been forced into prostitution. Some of these families were Muslim, whereas X and the applicant were Christian. The applicant also claimed to be involved with the Socialist Party of Albania.
·The applicant was scared because criminal gangs would come and cause property damage at the business and physically assault the applicant. The applicant suffered a broken nose and broken ribs but was too scared to go to the hospital because the gangs had said they would kill him if he went to the police or to a hospital.
·In 2001, he went to live in Italy, returning to Albania to visit family four times between 2011 and 2015.
·In 2012, he visited X, who told him that three people had been killed in an attack on one of his businesses, and that people were looking for the applicant because he was the caretaker of X’s businesses and finance.
·In 2013, the applicant claims his life was threatened by Y, who he presumes killed X earlier that year, along with other members of the X family. The Y family would attack the X family because of their involvement with political corruption and prostitution. He heard that Y was looking for him and that he had forced others to tell him where the applicant had gone.
·In 2014, whilst living in Italy, he hid in a cupboard while people speaking Albanian unsuccessfully searched his apartment for him. He suffered from stress and diabetes following this incident but was too scared to go to a hospital. He obtained a fake Italian passport and fled to Australia in 2015, after saying goodbye to his family in Albania.
·He claims to seek refuge in Australia due to fear of persecution for his religion and political involvement. He claims authorities cannot protect him in Albania because they failed to protect the X family.
The Tribunal then noted the following differences in the applicant’s departmental interview compared with his original written statement (at [32]):
·The applicant said he was not aware of his employer’s criminal activities while working for him, including tax evasion. He denied that X had taken girls from villages for prostitution or that gangs had threatened him in his workplace. He said he was never assaulted while working for X and instead left the job because he did not like being pressured to prepare false reports and documents.
·The applicant said he left Albania in order to distance himself from the job rather than for fear of criminals in Albania.
·There were tensions between Christians and Muslims in his part of Albania and he believes a Muslim was behind the murder of X.
·In July 2014, whilst living in Italy, he began to receive threats from Albania and he was told that the Y family were looking for him. He believed this was because of a financial matter after his former employer was killed, despite not having worked for him since 2000 and the business being closed in about 2005.
·If he returns to Albania, he fears harm from the Y family. He claims he will not be protected by the Albanian police because they will be involved. He does not fear harm in Albania for any other reason.
At the Tribunal hearing on 24 January 2023, the applicant said he was not aware of the contents of his written statement (summarised above at [17] of these reasons) as this had been prepared by a previous representative (at [34]-[35]). Despite observing similarities between that written statement and his existing oral evidence, the Tribunal acceded to the applicant’s request to proceed with extracting his claims and evidence orally. The Tribunal noted this process took longer than anticipated, and the hearing was required to be adjourned and concluded at a later date (at [37]-[40]).
At the resumed hearing, the applicant indicated that the only change he wished to make to his original written statement was that he had not worked with one of the persons named as having been killed by the Y family, but the Tribunal noted that this amendment did not appear to be material (at [41]).
The Tribunal summarised the applicant’s oral testimony as follows (at [42]):
·The applicant was born and raised in Shkoder in Northern Albania. In late 1997, he began working as an accountant for a number of X’s businesses, including a shoe factory and a restaurant. He claimed that X was engaged in both legal and illegal activities, and was uncomfortable in this work environment because the people at the restaurant had criminal records and often carried guns. The applicant said most of those people are no longer alive as X and other members of the X family were killed.
·The applicant said the working environment was hostile but that he had only been physically attacked once. He said there were often threats from people close to X but he did not know what their relationship was to X, or if they were criminals. He stopped working for X shortly before leaving Albania in 2000, as people were being killed and he believed these were generally shootings by what he called “organised people”. He said there were few police, who were mostly under the influence of criminals.
·He believed there was some prostitution but that it was much worse 20 years ago than it is today. He denied there was any problem with girls being forced into prostitution and he denied making that statement, although the Tribunal noted it clearly appears in his protection visa claims which the applicant had adopted.
·The applicant claimed that whilst the Y family were Muslims, and he and X were Christian, his problems in Albania related to money, not religion.
·The applicant said it was not enough to simply leave X’s employment because he would be known by others to be familiar with the businesses. He believed he had to leave Albania as well.
·He said he first went to Italy in 2000 on a three-month tourist visa with a three-month extension. There were other Albanians in Florence and he lived with his brother doing unskilled work. By 2011, he was working as a babysitter for an Albanian family and living in the apartment below them.
·The applicant said he does not want to return to Albania because he understands there is still conflict between criminal gangs. He said that X was killed in about 2013 and he believes this was at the hands of the Y family. The Tribunal observed that although the applicant claimed to fear harm in Albania, he had in fact made several visits. The applicant said he could go back for visits as long as he was discreet.
·The applicant said he used a false passport to come to Australia because he was told it was the fastest way to leave and he wanted to get away quickly because of the attack on his apartment. The Tribunal noted that he stayed in Italy for a further nine months after the attack, but the applicant said it was five or six months. There was some uncertainty over whether the attack occurred during spring or summer. When the Tribunal asked how much time he had saved by acquiring false documents, the applicant said he was told it might have taken a year or two to come to Australia without false documents.
·The Tribunal noted that the applicant disclosed pending criminal charges in Italy for drug trafficking in his visa application form, but he said he had since been found not guilty and the case was closed two years prior to the Tribunal hearing. He did not believe the attack on his apartment was associated with the drug trafficking charges or other alleged criminal associations. He said he had otherwise not had any trouble in Italy and he denied being involved in any criminal activity there.
·He believes the apartment intruders were Albanian because he heard them speaking Albanian and because there was an increased Albanian criminal presence in Italy following the removal of visa requirements in about 2011, which the Tribunal accepted. The applicant said he did not go to the Italian police because he was too scared and he did not believe they would help because they were not supportive of the Albanian community.
·The applicant reiterated that he believed his life would be in danger if he returned to Albania. He said the Y family are powerful criminals and that he received threats on his third visit to Albania in 2013. The Tribunal questioned him about these threats and found they were not direct threats from the Y family, but advice from acquaintances to be careful.
·The Tribunal observed that the applicant’s claims as articulated in his original written statement suggest he has a well-founded fear of persecution because of his religious and political involvement, but the applicant denied fear of persecution for those reasons. He said he cannot return to Albania because of the Y family. He believes they think he knows where some money is and he cannot think of any other reason they would be after him.
·The Tribunal asked the applicant about criminal charges in Australia to which he had plead guilty. The applicant said there are also others who have been charged, including an Albanian who he does not believe is associated with Y, although he may know him. The applicant could not say whether or not the charges related to criminal gang activity and the Tribunal suggested the applicant’s involvement in such activity could cast doubt on his claim to have come to Australia to avoid Albanian criminals. The applicant said it is the Tribunal’s right to hold such doubts. He said he accepts he has made a mistake but that he wants an opportunity and has cooperated with the authorities.
·The Tribunal concluded the summary by putting to the applicant that the most important questions to determine were whether he was threatened in Italy or Albania as he says, and whether he could return to Italy or Albania and stay there safely without risk of harm from Albanian criminals. The applicant was advised that any further information he presented to the Tribunal would be considered and the applicant said he had nothing to add to the evidence he had already given.
The Tribunal was satisfied the applicant is of Albanian nationality for the purpose of the definition of ‘refugee’ in s 5H(1)(a) and further outlined the legislative requirements for a ‘well-founded fear of persecution’ as per ss 5J-LA (at [46]-[49]).
As indicated in the above summary at [21], the Tribunal noted that the applicant asserted he does not fear persecution due to his religious and political involvement, and he does not remember making such a claim in the statement accompanying his original protection visa application (at [50]-[51]). The Tribunal therefore found that the applicant does not claim to fear relevant persecution or harm due to his religious or political involvement (at [52]).
The Tribunal also noted the applicant denied claiming to fear harm or persecution due to threats from families of girls taken for prostitution by X, and that this was the reason for him leaving his employment with X (at [53]-[54]). The Tribunal therefore found the applicant does not claim to fear relevant persecution or harm from the families of those girls (at [55]).
The Tribunal accepted that, in about 1999, the applicant started working for X, who was involved in legal and illegal activities (at [56]). The Tribunal accepted that the applicant was employed as a bookkeeper and was not directly involved in any criminal enterprises (at [57] and [88]).
The Tribunal accepted that he left X’s employment in about 2000 and moved to Italy, where he stayed until coming to Australia in March 2015. The Tribunal accepted that the applicant visited Albania several times during this period but did not return to Albania to live (at [59]-[61]).
However, the Tribunal found that the applicant’s oral testimony and written evidence were not consistent, particularly with respect to why he left X’s employment and how long he stayed in Albania after resigning (at [65]-[70]). The Tribunal found that the applicant appeared to be adjusting his evidence to support his claim that he believed he was in danger in Albania and was trying to leave urgently (at [71]).
The Tribunal did not accept that the applicant believed he was under physical threat in Albania after resigning, or that this was his reason for leaving Albania (at [72] and [90]).
The Tribunal did not accept the applicant’s claim that he would be targeted by Albanian criminals who wrongly believe he knows where X has hidden money, or for any other reason (at [58]). The Tribunal also did not accept the claim that he would face persecution at the hands of Albanian organised crime gangs, or the Y family in particular, if he were to return to Albania (at [64]).
The Tribunal did not accept that he received threats from organised crime members in Albania, or that such people broke into his home in Florence in 2014, or that those intruders were interested in X’s money or linked to the Y family (at [62]-[63] and [97]). The Tribunal was similarly not satisfied that the applicant received threats from Albanian criminals in Italy or is at risk of any ongoing threat from Albanian criminals in Italy (at [75]-[76]). The Tribunal did not accept that any such attack on his home in 2014 was because of perceived links with Albanian organised crime 14 or 15 years earlier (at [79] and [97]).
The Tribunal found that the reasons the applicant gave for believing the Y family were a risk to him in 2014 were speculative and not sustained on the evidence (at [80] and [98]). The Tribunal observed that the alleged attack in Italy was an isolated incident and there had been no other such incidents in the 15 years while the applicant was in Italy (at [81]).
Further, the Tribunal was satisfied that there are other cogent explanations for the 2014 incident, including that the applicant was suspected of involvement in drug trafficking around that time, and that his behaviour in Australia is not consistent with a fear of Albanian criminals, having regard to his conviction for drug trafficking alongside another Albanian criminal who the applicant could not exclude as being known to the Y family (at [83] and [84]).
The Tribunal found that since the applicant does not fear persecution for reasons of race, religion, nationality or political opinion, the Tribunal must therefore be satisfied that he fears persecution for being a member of a particular social group (at [86]). Although the Tribunal was satisfied that “targets of Albanian organised criminals” might be a relevant social group for the purpose of s 5J(1)(a), it was not satisfied that the applicant faces a real chance of persecution by Albanian organised criminals, or the Y family in particular, as claimed (at [87] and [99]).
As the applicant does not have a well-founded fear of persecution within the meaning of s 5J, the Tribunal found that the applicant is not a refugee for the purpose of s 5H(1) and therefore does not meet the refugee criterion in s 36(2)(a) (at [100]-[101]).
The Tribunal considered whether the applicant would meet the complementary protection criterion in s 36(2)(aa) for reason of his claim that, as a necessary and foreseeable consequence of being removed to Albania, he would suffer the relevant significant harm at the hands of Albanian criminals, specifically the Y family (at [102]-[109]).
For the same reasons when considering the risk of such harm against the refugee criterion, the Tribunal found that the applicant’s claims are not sustained (at [110]). The applicant therefore does not satisfy the complementary protection criterion in s 36(2)(aa) (at [111]).
Accordingly, the Tribunal found that the applicant does not satisfy any of the criteria for a protection visa in s 36(2) (at [112]).
The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (at [116]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 10 August 2023 contains a single ground of review, as follows:
The Tribunal’s decision is very brief and the Tribunal does not consider my claims in any detail, and so I don’t think the Tribunal gave me a proper hearing.
The applicant filed an affidavit with that judicial review application on 10 August 2023. The affidavit annexed a copy of the Tribunal’s decision.
The applicant appeared before the Court on 10 December 2024 without legal representation but with the assistance of an Albanian interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 10 August 2023 (the affidavit being taken as read and in evidence at the hearing on 10 December 2024), a Court Book numbering 388 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 29 November 2024.
The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, ANP23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1153 at [51]. Accordingly, at the hearing of this matter on 10 December 2024, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]);
(f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 (SZMDS); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.
CONSIDERATION
As outlined above, there is one ground of review advanced in these proceedings. Where an applicant is unrepresented, the Court endeavours to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158). In these circumstances particularly, the Court gave the applicant an opportunity to say what was wrong with the Tribunal’s decision.
The applicant told the Court that he believed the Tribunal’s decision was influenced by unrelated criminal proceedings because as soon as that case was concluded, his visa was cancelled. The Court indicated to the applicant that it understands he is referring to the cancellation of his bridging visa, not his application for a protection visa.
The Court again invited the applicant to say what he thought was wrong with the Tribunal’s decision. The applicant reiterated that his life would be in danger if he returns to Albania because there are powerful and dangerous people still operating in Albania. He added that his criminal case also involved dangerous Albanian people and he does not know if the Tribunal had all those details.
The applicant did not expand upon the ground contained within his application.
When invited to reply to the Minister’s submissions, the applicant said that the break-in in Italy was related to the continuing threat of Albanian criminals and that it was not related to drug-dealing because he had been “proven innocent” with respect to those charges. He said he cannot return to live in Albania because dangerous people are still in power and his life would be in danger.
The Court reminded the applicant that the issue it had to determine was whether the Tribunal did anything wrong in reaching its decision. The applicant said that “the error could have been because they didn’t consider exactly why his life could be in danger if he returns back” or that the Tribunal did not believe him. He added that the situation had become worse because the Albanian people connected with his South Australian criminal charges are close to his hometown in Albania. The Court explained that it cannot have regard to any such matters that were not before the Tribunal.
In written submissions, the Minister observed that the applicant’s ground as pleaded in the application can be broken down into two limbs:
(1)That the Tribunal decision is brief and does not consider his claims in detail; and
(2)That the Tribunal did not give him a proper hearing.
Tribunal’s consideration of claims
With respect to the first limb, the Minister submitted that the Tribunal decision sets out the applicant’s claims in detail, including those made in his initial visa application (at [30]), in his interview with the Department (at [32]), and during oral evidence at the Tribunal hearing (at [33]-42]). The Minister submitted that the Tribunal distinguished between those claims which the applicant no longer pursued (at [50]-[55]) and those which were maintained (at [56]-[64]). The Minister submitted that the applicant has not articulated which claims he alleges were not considered, and it is his responsibility to specify all particulars of his claims and provide sufficient evidence to support those claims pursuant to s 5AAA of the Act. The Minister submitted that the applicant’s claims were given active and intellectual consideration at paragraphs [56]-[100] of the Tribunal’s decision (citing Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45]-[46]).
It is clear to the Court that the Tribunal decision sets out the applicant’s claims in great detail. The Tribunal summarised the applicant’s claims as made in the written statement accompanying his visa application, as well as the claims pursued in his departmental interview, noting the similarities and differences. The Tribunal then summarised the lengthy oral evidence given by the applicant over two Tribunal sittings. The Tribunal distinguished between which claims the applicant maintained and those which he did not. The Court agrees that the Tribunal gave active consideration to the applicant’s evidence and claims, and its findings were well-reasoned and open to it for the reasons it gave.
The Court agrees that the Tribunal’s decision considers the applicant’s claims in detail and that the Tribunal decision cannot be considered “brief” in circumstances where the Tribunal has dedicated over 40 paragraphs of its decision to consideration of those claims.
In any event, what is important is not the length of a decision in and of itself but rather the adequacy of the reasons. In particular, whether the reasons reveal that the Tribunal actively engaged with the evidence and claims advanced by the applicant. For the reasons stated above, the Court is satisfied that the Tribunal did so.
No jurisdictional error arises in respect of the first limb of the applicant’s ground.
Did the Tribunal provide the applicant with a proper hearing?
The second limb of the applicant’s ground is that the Tribunal did not give him a proper hearing.
In written submissions, the Minister recounted the following history. The applicant was invited to appear at a hearing before the Tribunal, pursuant to s 425 of the Act. The hearing was scheduled to take place on 24 January 2023. On 19 January 2023, the applicant’s registered migration agent requested an adjournment of that hearing in light of the applicant’s pending criminal charges and because they had not received a copy of the recording of the protection visa interview, which they said was relevant to the applicant’s right to enter and reside in Italy and/or other Schengen states. The Tribunal ultimately declined the adjournment request and explained that this was because the criminal charges were not the subject of the protection visa application, and that the Tribunal would address the applicant’s claim that he does not have a right to reside in other European countries alongside the applicant’s protection claim if he were to return to Albania. The Tribunal hearing proceeded on 24 January 2023 and was listed for a second day of hearing on 18 April 2023. The Tribunal observed in its decision that there was no complaint by or on behalf of the applicant that he had suffered any prejudice in the hearing for reason of not having access to the departmental interview or for any other reason.
The Minister submitted that the applicant was afforded the opportunity to give evidence and present arguments at two hearing dates in accordance with s 427 of the Act (as it was at the time of the Tribunal’s decision). Furthermore, the Minister submitted that the applicant was afforded the opportunity to put on additional material following the first hearing date and prior to the second hearing date, which he did so. The Court also notes that the Tribunal required two days to record the applicant’s lengthy oral testimony, which it considered in great detail (see [56] of these reasons).
In Pabbi v Minister for Home Affairs [2019] FCCA 1750, this Court observed that there is no statutory time limit for hearings before the Tribunal, and that what is required is that the Tribunal provide the applicant with a real and meaningful opportunity to give evidence and present arguments (at [54]-[55]). In the Court’s view, the applicant was provided with a meaningful opportunity to give evidence and present arguments. The hearing spanned two sitting dates, the applicant gave oral evidence at the hearing, and the Tribunal considered further material provided to it in support of the review application, namely, the country information about Albanian criminal groups.
The Court agrees with the Minister’s submission that the applicant was afforded the appropriate opportunities to give evidence, present arguments and put on additional material. The Court is satisfied that the Tribunal gave the applicant a proper hearing.
No jurisdictional error arises in respect of the second limb of the applicant’s ground.
Was the Tribunal’s decision influenced by the unrelated criminal proceedings?
With respect to the applicant’s oral submission that the Tribunal’s decision was influenced by unrelated criminal proceedings, Ms Pappas, as counsel for the Minister, noted the Tribunal’s comments at [10] of its decision that the pending criminal matter had no bearing on the application before it. However, Ms Pappas observed that the Tribunal did refer to the applicant’s criminal offending at [84] in the context that his behaviour in Australia was not consistent with a fear of Albanian criminals, and in particular, that he had been convicted for drug trafficking alongside another Albanian criminal, among others. Ms Pappas submitted that there was nothing inappropriate in the Tribunal’s reference to this conduct.
The Court agrees that no jurisdictional error arises in that respect. The Tribunal made it clear that the applicant’s criminal proceedings were not relevant to his protection claims save for the rather self-evident point that continuing to associate with an Albanian criminal was not consistent with a claimed fear of Albanian criminals.
Ms Pappas, whose client is subject to a direction to behave as a model litigant, concluded that she had otherwise reviewed the decision and was unable to identify jurisdictional error in the Tribunal’s decision. There was nothing further she wished to draw to the Court’s attention.
Looking at the Tribunal’s decision as a whole, the Court similarly can find no easily discernible jurisdictional error. The Tribunal’s decision reveals it understood the relevant task before it. It considered all of the claims made by the applicant and all of the evidence given by the applicant in support of those claims. Where it had concerns, those concerns were put to the applicant and the applicant’s responses were considered. All of the matters considered by the Tribunal were clearly relevant and there is no evidence that it failed to consider relevant material. The Tribunal’s findings in this matter were based on rational reasons that were arrived at on consideration of matters that were logically probative (CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; Kopalapillai v Minister for Immigration and Multicultural Affairs(1998) 86 FCR 547; and DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175). It cannot be said that no other rational or logical decision maker could have drawn the same conclusion or arrived at the same decision (SZMDS).
The Court is satisfied that, even adopting the broad approach referred to in [46] of these reasons, no denial of procedural fairness arises.
CONCLUSION
The application for judicial review, supporting affidavit and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 31 January 2025
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