CFB23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1240
•20 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CFB23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1240
File number(s): MLG 1569 of 2023 Judgment of: JUDGE MANSINI Date of judgment: 20 November 2024 Catchwords: MIGRATION – protection visa – application for judicial review of decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to properly consider corroborative evidence and therefore failed to complete its statutory task – jurisdictional error established – application allowed with costs. Legislation: Migration Act 1958 (Cth) ss. 36, 65, 430, 474, 476 Cases cited: Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940
Applicant WAEE v Minister for Immigration and Indigenous Affairs [2003] 256 FCR 593
BFD17 v Minister for Immigration, Citizenhip, Migrant Services and Multicultural Affairs [2023] FCA 887
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
Craig v South Australia [1995] HCA 58
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80
SZSZW v Minister for Border Protection [2015] FCA 562
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 7 October 2024 Place: Melbourne Counsel for the Applicant: Ms O’Neil Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Ms Hooper Solicitor for the Respondents: Clayton Utz
Table of Corrections 29 November 2024 In paragraph 13, two references to the name of the Applicant’s father have been removed and replaced with “[the Applicant’s father]” and the two references to the name of the Applicant’s friend have been removed and replaced with “[the Applicant’s friend]”. In paragraph 23, the name of the Applicant’s father has been removed and replaced with “[the Applicant’s father]”. In paragraph 27, the name of the Applicant’s father has been removed and the name of the Applicant’s friend has been removed. In paragraph 29, the name of the Applicant’s friend has been removed and replaced with “[the Applicant’s friend]”. ORDERS
MLG 1569 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CFB2023
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
20 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration and Multicultural Affairs.
2.The name of the Second Respondent be amended in the title of the proceeding to Administrative Review Tribunal.
3.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 9 August 2023 in Case Number 2310667.
4.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the Applicant’s application for review according to law.
5.The First Respondent pay the Applicant’s costs fixed in the amount of $8,371.30.
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 Mansini
The Applicant is a national of India who initially came to Australia on a student visa, proceeded to commit crimes and then (from immigration detention) sought protection from Australia on account of his claims to fear harm from police and gangs if he were to return to India.
The Applicant now seeks judicial review of a tribunal decision to affirm the administrative decision to refuse him a protection visa.
For the reasons that follow, the application must be allowed.
CONTEXT
The Applicant is of Punjab ethnicity and Sikh faith. In December 2017, the Applicant arrived in Australia as a nominated dependent on his then wife’s student visa. After his arrival in Australia, the Applicant and his wife were divorced and the Applicant was convicted of criminal offences and, in April 2023, was incarcerated until June 2023. Following his sentence, on 11 June 2023, the Applicant was taken to immigration detention where he currently resides.
On 14 June 2023, the Applicant applied for a protection class XA (subclass 866) visa which was refused by a delegate of the First Respondent on 12 July 2023.
On 19 July 2023, the Applicant applied to the then Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision.
On 4 August 2023, the Tribunal convened a hearing which the Applicant attended with his representative. The Applicant, his father and a friend respectively gave evidence with the assistance of an interpreter.
On 9 August 2023, the Tribunal decided to affirm the delegate’s refusal decision and provided the Applicant with written reasons for the decision.
APPLICATION BEFORE THIS COURT
On 11 September 2023, the present application for judicial review of the Tribunal’s decision was filed by way of an originating application and accompanying affidavit.
On 16 October 2023, a response was filed on behalf of the First Respondent by which it contended that the decision of the Tribunal was not affected by jurisdictional error.
On 3 November 2023, the First Respondent filed a Court Book.
Various procedural orders were then made and, on 15 July 2024, the matter was fixed for hearing to take place on 7 October 2024 before the Court as presently constituted.
On 25 September 2024, the Applicant filed an amended application which contained 2 grounds of review in the following terms:
1.The Tribunal erred by failing to engage with, evaluate or provide a cogent explanation for its rejection of oral evidence given by [the Applicant’s father] and [the Applicant’s friend].
Particulars
(i) [The Applicant’s father] and [The Applicant’s friend] gave evidence to the Tribunal via telephone.
(ii) The substance of their evidence was that police were seeking out the applicant in India, had harassed the applicant’s family and beaten the applicant’s father.
(iii) The Tribunal Reasons refer to this evidence (at [28]-[29]).
(iv) The Tribunal Reasons do not disclose any credibility finding in respect of either witness or otherwise evaluate their evidence.
(v) The Tribunal Reasons did not accept the substance of their claims (at [32]).
(vi) The Tribunal Reasons do not explain why their evidence was not accepted.
2.The Tribunal erred by failing to properly consider the applicant’s claims that he was being sought out by police in India, that his family had been harassed and that his father had been beaten by police.
Particulars
(i) The particulars to Ground 1 are repeated.
(ii) The Tribunal Reasons refer to evidence given by the applicant (at [26]).
(iii) The Tribunal Reasons do not disclose any credibility finding in respect of the applicant or explain why his evidence on this issue was not accepted.
Also on 25 September 2024, an affidavit of a Victoria Legal Aid lawyer was filed on behalf of the Applicant which annexed a copy of the transcript of the Tribunal hearing of 4 August 2023.
The parties respectively filed and served their outlines of submissions and lists of authorities.
The matter proceeded to final hearing before the Court as presently constituted on 7 October 2024. The parties were respectively represented by Counsel.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s.474 of the Migration Act 1958 (Cth) (Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia [1995] HCA 58 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 (Kelly J) at [19]-[20].
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provide (and, at the relevant times, provided) that “a” criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
An administrative decision maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
CONSIDERATION
There is a degree of overlap between the 2 grounds of judicial review. Both take issue with the Tribunal’s rejection of and level of engagement with the evidence of the Applicant’s father and friend as before the Tribunal at hearing on 4 August 2023.
The Tribunal’s reasons
In summary, the following parts of the Tribunal’s reasons of 9 August 2023 are most pertinent to the grounds of review.
The Tribunal commenced its consideration of the Applicant’s claims and evidence with a short summary of the Applicant’s background (at [14]) and listed the supporting documentation provided to the Tribunal being: a submission of the Applicant’s representative; a video link; and 6 affidavits (of a [the Applicant’s father], Bikkar Singh, Navjot Singh, Darshan Kaur, Himmat Kaur and Surjit Kumar). The Tribunal then summarised the Applicant’s claims by extract from his original protection visa application (at [16]) and sources of country information before it about gangs and police (citing a DFAT Country Information Report India dated 10 December 2020, at [17]).
The substance of the Tribunal’s findings commenced from [21], where it accepted certain aspects of the Applicant’s claims including that: the Applicant was friends with Tejinder Singh and Arminder Singh, whom he met in year 7 at school, and they would get into street fights; and, further, that Tejinder’s brother murdered his aunt’s lover and Tejinder himself was implicated. And, by the following paragraphs, the Tribunal accepted that the aforementioned implication was imprisonment.
The Tribunal then rejected a series of the Applicant’s claims with regard to his oral evidence and consideration of submissions and news articles before it: at [22], [23] and [26].
It further noted the timing of the protection visa application. Specifically, that the Applicant was able to travel to Australia, apply for student visas and live in Australia for 6 years before applying for protection. The Tribunal found that the Applicant was applying for protection for migration purposes not out of fear of persecution and, if the Applicant had fled India due to his involvement in gangs and fear of return, he would have applied for a visa earlier rather than waiting for 6 years to do so: at [24].
The Tribunal also rejected all 6 of the affidavits submitted by the Applicant, which it found were “proforma” and had “the exact same wording, and story” about the Applicant, his background and troubles in India: at [25]. Of those affidavits, one was of the Applicant’s father who also gave oral evidence at hearing. The other witness at the Tribunal hearing, friend of the Applicant and brother of Tejinder, did not put on a written affidavit.
The transcript of the Tribunal hearing which was before the Court in these proceedings disclosed that the evidence of the Applicant’s father and the Applicant’s friend given on that occasion was brief – in each case, extending for no more than 2 pages of transcript.
Of particular relevance to both grounds of review, at [28] and [29]:
28. The Tribunal spoke to the applicant’s father in India. The applicant had asked for the Tribunal to call his mother and father but when his father answered he said he was not with his wife, so the Tribunal only spoke with his father. His father stated that the police harass him and his wife. He said he was beaten by the police. The Tribunal asked if his wife was beaten, and he said no only he was beaten. The Tribunal asked him if now that Tejinder was dead would they stop the harassment and his father said no they are still in danger and please give his son a visa.
29. The Tribunal also spoke to [the Applicants’ friend] whose brother was killed along with Tejinder Singh. He said the police keep asking for Harjit and they would come after him if he returns and have a fake encounter and make false allegations against him.
For completeness only, there were also findings made about the potential for the Applicant to relocate on return to India: at [30]-[31].
At [32]-[35] the Tribunal made a series of findings under the heading “Conclusion”. Namely, that it did not accept that the police were looking for the Applicant, that the Applicant was under suspicion or that he would be arrested or killed upon his return to India. The Tribunal member recorded that it followed that the Tribunal did not accept the Applicant’s claims that he was mentioned in a video, that gangs were after him, that his parents were harassed and his father was beaten by the police. And, given those findings, the Tribunal went on to find that:
·It did not accept that if the Applicant returned to India he would face a real chance of persecution from gangs or anyone associated with them;
·The Applicant would not face a real chance of persecution from the police or authorities or anyone associated with them;
·The Applicant did not face a well-founded fear of persecution as per s.5J(1) of the Act and is not a refugee within the meaning of s.5H(1) of the Act; and
·It was not satisfied that the Applicant meets the alternative provisions in s.36(2)(aa) of the Act or any of the remaining criterion.
FIRST GROUND
By the first ground of review, the Applicant contended that the Tribunal had erred in failing to engage with, evaluate or provide a cogent explanation for its rejection of the oral evidence that the Applicant’s father and friend gave at hearing before the Tribunal member.
The Applicant contended that the Tribunal gave no reasons for not accepting the oral evidence of the Applicant’s father and the Applicant’s friend, and particularly drew the Court’s attention to paragraphs [27], [28], [29] and [32] of the Tribunal’s reasons in this respect.
Whereas the First Respondent contended that the Tribunal expressly considered the witness’ evidence and made findings of fact which rejected the truthfulness of the Applicant’s claims that each of those who gave oral evidence at hearing had sought to corroborate, and particularly pointed to paragraphs [28]-[29] of the Tribunal’s reasons in support.
The question before the Court is whether the Tribunal failed to engage with, evaluate or provide a cogent explanation for its rejection of the oral evidence of the Applicant’s father and friend in such a way as to fail to consider the Applicant’s claim and, therefore, failed to complete its statutory task.
The Tribunal was required to consider each necessary and relevant consideration and integer of the claim, and each material question of fact squarely raised by the material before it: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 (Mason J) at [19]; SZSZW v Minister for Border Protection [2015] FCA 562 (Perry J) at [13]-[18]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ) at [24] ; see also SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 (Madgwick and Conti JJ) at [29]; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (Black CJ, French and Selway JJ) at [58]. The scope of the obligation to actively consider a particular claim, integer or evidence varies according to the circumstances of the particular case: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) at [26], [77]-[78], [108].
That said, it is well-established and was not contentious in these proceedings that the Tribunal was not obliged to comment on every item of material before it or to give a line-by-line refutation of evidence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 (McHugh J) at [64]-[65]. Indeed, s.430(1) of the Act (as it then was) did not oblige the Tribunal to do anything more than to refer to the evidence on which the findings of fact were based and did not require the Tribunal to give reasons for rejecting evidence inconsistent with the findings made: Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 (Addo) (Spender, O’Connor and Emmett JJ) at [24]. In Addo, the Full Court observed that the reasons of an administrative decision maker are meant to inform and it would have been preferable to deal directly with the evidence wholly inconsistent with the conclusion on a particular issue rather than leave that rejection to be a matter of necessary inference which was not and error of jurisdiction in that case: at [23].
In the context of purportedly corroborative evidence, the Court was taken to the decision in BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 887 (BFD17) (Burley J), in particular at [58], as authority for the principle that:
It is apparent that the particular circumstances of each case must be examined. It is not sufficient for a Tribunal to make emphatic findings adverse to the credibility of a party and then to eschew consideration of purportedly corroborating evidence.
In BFD17, there was found to be a failure to consider corroborative evidence where the Tribunal had also concluded that the corroborating witnesses were not reliable or credible and found the claims to have been fabricated to create a claim to be owed protection. The Tribunal in that case had given broad reasons for its views about the credit of the witnesses and rejected the corroborative evidence by reason of the fundamental lack of credibility of the Applicants’ evidence. Without more, that was not found to be a basis for rejecting the evidence in that case.
In the present case, the oral evidence of the Applicant’s father and friend was acknowledged to the extent that it was briefly but fairly summarised: at [28] and [29]. The Tribunal appeared by these references to take into account the oral evidence of the Applicant’s father and friend. However, it may only be inferred (when regard is had to the outcome) that the Tribunal did not accept their oral evidence as credible or persuasive in terms of founding the Applicant’s claims because there was no specific finding in this respect, nor was there an explanation as to why the oral evidence of these purportedly corroborating witnesses was not considered credible or rejected.
The First Respondent did not dispute the absence of a link between the Tribunal’s summary of the oral evidence and its apparent rejection, but asked the Court to find that it was unnecessary for the Tribunal to make those particular findings because the evidence relied on a factual premise that had been rejected: as in Applicant WAEE v Minister for Immigration and Indigenous Affairs [2003] 256 FCR 593 (French, Sackville and Hely JJ) at [47]. The submission was effectively put in this way: when one looks at the totality of the evidence, which the Tribunal found was duplicitous, unsatisfactory and general or not sufficiently cogent, it follows that the purportedly corroborative evidence did not warrant a greater level of engagement by the decision-maker.
On review, the substance of the purportedly corroborative evidence of the Applicant’s father briefly canvassed some of the matters addressed in the written evidence that the Tribunal decided to reject on the basis that all of the written affidavits in support of the Applicant’s case were “proforma” and “the exact same wording, and story”. That was a proposition that did not appear to have been expressly put to the Applicant or the Applicant’s father during the course of the hearing as to garner an oral response. In any event, the Applicant’s friend had not provided a written affidavit as for their evidence to be rejected on those grounds.
This case is distinct from that where the Tribunal fails to express its reasons with full clarity or reasons with brevity but nonetheless can be discerned to have considered the Applicant’s claim: as in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51(SZNPG) (North, Lander and Katzmann JJ). Here, the Tribunal expressly placed significance on the timing of the Applicant’s protection visa application and apparently preferred the country information but nonetheless did not weigh nor explain why it rejected the oral evidence of the Applicant’s father and friend. That is an error of the kind which amounts to a failure to consider the Applicant’s claim and the Tribunal failed to complete its statutory duty in this respect. The first ground is upheld.
The oral evidence of the Applicant’s father and friend was directly relevant to (and purportedly corroborative of) his claims to fear harm. It was properly conceded that the identification of such error would be material, in the sense that there is a realistic possibility that the outcome of the review may have been different.
SECOND GROUND
It being strictly unnecessary to do so, I decline to address the second ground as it was put in the amended application.
CONCLUSION
For the above reasons, the application is allowed with costs in the scale amount.
In the knowledge that it is the Tribunal’s usual practice to reconstitute on remittal, there is no utility and I decline the request to make an order for reallocation on remittal.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate: BC
Dated: 20 November 2024
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