CHM18 v Minister for Home Affairs
[2019] FCCA 960
•25 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHM18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 960 |
| Catchwords: MIGRATION – Protection Visa – decision of Administrative Appeals Tribunal – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 476 |
| Cases cited: AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 |
| Applicant: | CHM18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 244 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 25 January 2019 |
| Date of Last Submission: | 25 January 2019 |
| Delivered at: | Perth |
| Delivered on: | 25 January 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Applicant’s application for judicial review is dismissed
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 244 of 2018
| CHM18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from transcript)
Introduction
By application filed in this Court on 30 April 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 27 March 2018.
The Tribunal’s decision affirmed a decision of a delegate of the first respondent to refuse the applicant’s application for a Protection (Class XA) visa made on 11 April 2016.
Background
The applicant is a citizen of Malaysia. She arrived in Australia on 10 August 2013 on a Subclass 601 (Electronic Travel Authority) visa. That visa expired on 10 November 2013 (Court Book “CB” 72-73).
On 11 April 2016 the applicant applied for the protection visa (CB 7-43).
In response to questions put to her, the applicant provided the following “reasons for claiming protection from the Malaysian government” (CB 38-39):
89.Why did you leave that country(s)? Provide specific details
ECONOMIC POVERTY AND PERSECUTION
…
90. What do you think will happen if you return to that country(s)?
I CANNOT SURVIVE IN MALAYSIA DUE TO ECONOMIC REASONS AND POVERTY.
91 Did you experience harm in that country(s)?
YES, I FACED POVERTY AND ECONOMIC PERSECUTION DAILY.
92.Did you seek help within the country(s) after the harm?
I TRY FIND EMPLOYMENT AND GET GOVERNMENT ASSISTENCE BUT CANNOT OBTAIN
93. Did you move, or try to move, to another part of that country(s) to seek safety?
No
I HAVE NO MONEY TO MOVE. I BORROW MONEY TO TRAVEL TO AUSTRALIA TO SEEK A NEW LIFE.
94. Do you think you will be harmed or mistreated if you return to that country(s)?
Yes
THROUGH ONGOING ECONOMIC PERSECUTION.
95.Do you think the authorities of that country(s) can and will protect you if you go back?
No
THERE IS NO GOVERNMENT ASSISTENCE IN MALAYSIA.
96. Do you think you would be able to relocate within that country(s)?
No.
I HAVE NO ABILITY TO MOVE FINANCIALLY.
(Without alteration)
On 6 September 2016, a ministerial delegate (the “delegate”) refused to grant the protection visa (CB 50-59).
On 14 September 2016, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 60-61). The applicant’s application was heard by the Tribunal on 26 October 2017 and 27 March 2018 (CB 45-46 and 74-75).
At the conclusion of the hearing on 27 March 2018, the Tribunal gave an oral decision affirming the decision under review (CB 99-101). That decision was later transcribed (CB 99-101).
The applicant today seeks a review of the Tribunal’s decision. She seeks the issue of Constitutional writs.
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
In her judicial review application to this Court, the applicant relies on three grounds of review:
1. At a hearing scheduled on the 27th March 2018 I feel the Tribunal member failed to adequately review my claims for protection in accordance with the appropriate Laws of Australia
2.At a hearing on 27th March 2018 I feel I was not given a fair hearing and my fears of persecution and human rights were not adequately considered
3. I request a review of the Administrative Appeals Tribunals to affirm the decision of the Department of Home Affairs (Formerly known as the Department of Immigration and Border Protection) and the Administrative Appeals Tribunal decision be quashed.
(Without alteration)
The applicant has not filed any amended application or any submissions, despite having been given the opportunity to do so by an order of this Court.
Before this Court, the applicant was unrepresented. She was clearly distressed. The Court did what it could to assist her in relation to what is complex law. The applicant was aided by an interpreter. The Court thanks the interpreter for her assistance today. The Court also thanks Ms Oliver for the Minister for the assistance she provided the applicant and the Court.
The Court had in evidence a Court Book (“CB”) numbering 109 pages. Detailed written submissions were filed by Ms Oliver for the Minister.
The Tribunal’s Decision
The Tribunal’s decision appears at CB 99-101. The decision is, to be frank, unusually short (spanning only 3 pages). This is somewhat unusual given that this matter pertains to a request for protection.
The Court notes, however, that brevity alone does not equate to jurisdictional error.
The question before this Court is whether the substance of the decision is such that jurisdictional error is found -- not whether the decision could have provided more jurisprudential and factual analysis.
Unfortunately, the Tribunal did not allocate paragraph numbers to its decision. This would have assisted the parties and the Court. The Court will reference the decision below by CB page number.
In its reasons for decision the Tribunal identified the legislation that applied to the assessment of the applicant’s claim, and the relevant policy document (CB 107) – those being s.36 of the Act and Ministerial Direction No. 56.
The Tribunal then outlined the procedural history of the visa application (CB 107) and the applicant’s claims and the questions put to her about those claims (CB 107-108):
At the first hearing with the tribunal on 26 October last year I explained to you what documents the tribunal has in its possession. I asked you if there was any information in those documents that should be changed. You responded in the negative.
I then asked you if you wanted to add anything to your claims for protection. You responded in the negative.
I then asked if you were happy for me to proceed on the basis of the information I had before me. You answered in the affirmative.
Also at the first hearing I read to you the summary of your claims for protection from the delegate’s decision. At that time you agreed that the summary was fair and accurate.
At the beginning of the second and final hearing with the tribunal I reminded you of your answers to these questions and noted that you made no further submissions to the tribunal before the second hearing.
Your claims for protection, as summarised by the delegate, are as follows.
•The applicant left Malaysia because of economic poverty and persecution.
•She cannot survive in Malaysia because of economic reasons and poverty.
•She tried to find employment and get government assistance but was unable to do so.
•She has no money to relocate within Malaysia and borrowed money to travel to Australia to seek a new life.
•If the applicant returns to Malaysia she will face ongoing economic persecution.
I note that none of these claims articulate a form of serious harm for the essential and significant reason of any of the categories in the refugee criteria. Despite further questioning at the hearing the applicant has not been able to identify any such form of serious harm.
Based on the above, the Tribunal determined that none of the claims constituted serious harm for the essential and significant reason of any of the categories in the refugee criteria required by s.36 of the Act (CB 108):
I note that none of these claims articulate a form of serious harm for the essential and significant reason of any of the categories in the refugee criteria. Despite further questioning at the hearing the applicant has not been able to identify any such form of serious harm.
I therefore find that the applicant does not hold a well-founded fear of persecution now or in the reasonably foreseeable future for the essential or significant reason of any of the categories within the refugee criteria.
I asked the applicant if she feared any other form of harm in Malaysia besides economic hardship or poverty as it is described in her claims referred to above. The applicant answered in the negative.
The tribunal, therefore, finds there is no real chance the applicant will be seriously harmed in a manner envisaged by the refugee criteria if she were to be returned to Malaysia now or in the reasonably foreseeable future.
It would have been useful here if the Tribunal had referred to s.5J of the Act and the criteria contained therein. Regrettably, that did not happen and this, arguably, has led to considerable confusion on the part of this (legally unrepresented, non-English speaking) applicant.
The Tribunal invited the applicant to comment on the findings of the delegate as to the applicant’s eligibility for protection under the complementary protection criterion in s.36(2A). Again, no reference to the relevant statutory provision was provided by the Tribunal.
The Tribunal drew the applicant’s attention to [27] of the delegate’s decision (CB 108) and concluded as follows:
The tribunal also discussed with the applicant the delegate’s findings relating to the applicant’s eligibility for protection under the complimentary protection criterion. In particular the tribunal directed the applicant’s attention to the following extract at [27]. I quote:
27. There is no obligation at international law or states to provide protection to people fleeing violations of economic, social or cultural rights. The fact that a person may enjoy less favourable social, economic or cultural rights in another country does not of itself give rise to a non-refoullment obligation.
The discussion contained within the delegate’s record of decision appears to have summarised the relevant legal principles in an appropriate manner. The tribunal expressed this point to the applicant and asked the applicant if she had any further comment. The applicant made no comment in response to the tribunal’s observations and invitation to comment in this respect.
(Without alteration)
The Tribunal continued:
The real risk test imposes the same standard as the real chance test. Noting the findings I have already detailed, including my findings relating to the summary of relevant law in the delegate’s record of decision, it follows that the tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that the applicant will suffer significant harm.
For the reasons given above the tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations at s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criteria the tribunal has considered the alternative criteria. The tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Proceedings in this Court
In her judicial review application, the applicant has outlined three grounds of review. These are outlined above at [11] above.
Ground 3 is not a ground of review. Rather, it simply requests that the decision be scrutinised. To the extent that this ground of review requests merits review, this Court cannot engage in an impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. This is addressed further below.
The applicant’s grounds of review are vague. Despite being given an opportunity to provide particulars in relation to his grounds for judicial review, the applicant did not provide any particulars or further written submissions.
This puts the respondent at a disadvantage as it makes it difficult for them to gauge what, precisely, the applicant thinks the Tribunal “did wrong”.
A failure to particularised provides a basis for each of the grounds to be dismissed: AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J.
The Court notes that more recently, however (in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]) Justice Colvin commented that the consequences of a failure to particularise depends on the circumstances of the particular case. His Honour observed that it will rarely be appropriate to simply dismiss an appeal ground in a migration case for lack of particularisation, particularly where the appellant seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. His Honour found that, in such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground (at [9]).
Noting that the applicant was not legally represented before this Court and that this case relates to claims for protection, the Court asked that the applicant to explain what she believes the Tribunal “did wrong”.
In this context, the Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. For migration decisions, they most commonly include the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider the entirety of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at [111]; Salahuddin v Minister for Immigration & Border Protection [2013] FCAFC 141 at [22];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131] (“SZMDS”); Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44] (“Singh”).
The Court also explained that it could not engage in merits review of the Tribunal’s decision.
The applicant was asked to outline what, in her opinion, she felt the Tribunal “did wrong”. The applicant did so to the best of her ability, as discussed below.
Minister’s submissions
The Minister’s written submissions (at [20]-[26]) contended:
a)the applicant claimed that she cannot survive in Malaysia due to economic reasons and poverty. The applicant did not claim that her economic hardship and poverty arose out of some form of discrimination for reasons of race, religion, nationality, membership of a particular social group or political opinion;
b)in the circumstances, the applicant is not a refugee under the Act and, in turn, is not a person to whom Australia has protection obligations under s.36(2)(a) of the Act;
c)the applicant claimed that she will suffer significant harm if returned to Malaysia (CB 58). However, her claimed harm (being poverty and economic hardship) does not fall within the definition of significant harm in s.36(2A) of the Act;
d)In the circumstances, she is not a person to whom Australia has protection obligations under s.36(2)(aa) of the Act;
e)Insofar as the grounds of review allege the applicant was denied a fair hearing and her claims were not properly considered, the applicant was properly invited to the hearing. The Tribunal put the delegate’s decision to the applicant such that she was on the notice of the issues dispositive to the review, and the applicant was given the opportunity to elaborate upon her claims or provide any additional information. She chose not to;
f)it is not the Tribunal’s duty to make the applicant’s case for her;
g)the applicant was afforded a fair hearing in accordance with the Act and no jurisdictional error arises;
h)the brevity of the reasons in this case is explainable in part by the fact that there was no need for the Tribunal to assess the veracity or credibility of the applicant’s claims;
i)given, in relation to the refugee criterion, the applicant did not assert a risk of harm from economic hardship and poverty arose out of some form of discrimination for reasons of race, religion, nationality, membership of a particular social group or political opinion, the Tribunal could accept her claims without needing to make findings about the truthfulness of her claims; and
j)similarly, in relation to the complementary protection criterion, as the applicant did not claim that there was any risk that she would be arbitrarily deprived of her life, would be subjected to the death penalty, to torture, or to cruel, inhuman or degrading treatment or punishment, the Tribunal did not have to assess her evidence or the veracity of her claims in order to determine this aspect of the matter.
Applicant’s submissions
The applicant was clearly distressed before this Court. The Court has considerable sympathy for the situation she now finds herself in.
The applicant was asked to comment in relation to the Minister’s submissions and was invited to say anything she wished to say about her review application.
The applicant simply responded that she did not agree with the conclusion drawn by the Tribunal. In her opinion, it would be quite unacceptable for her to return to her home country as there was, in effect, no future for her in that country.
Consideration
The Tribunal’s decision needs to be read within its legislative context. The Court notes the relevant sections of the Act as outlined by the Minister in his written submissions. They detail the relevant legislation as follows.
Relevantly, in order to qualify for the visa, the decision-maker must:
a)be satisfied the applicant is a refugee (s.36(2)(a) of the Act); or
b)have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that the applicant will suffer significant harm (s.36(2)(aa) of the Act).
“Refugee” is defined in s.5H(1) of the Act. Relevantly, s.5H(1)(a) provides that a person is a refugee if the person “is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”.
Section 5J(1), in turn, defines well-founded fear of persecution as follows:
For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Section 5J(4), in turn, provides:
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
Section 5J(5) then provides examples of serious harm, which relevantly includes “significant economic hardship that threatens the person’s capacity to subsist”. However, having regard to s.5J(1)(a), in order for significant economic hardship to amount to serious harm, the economic hardship must arise by reason of race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal must also assess the complementary protection criteria in the Act.
Under the complementary protection criteria, a person will qualify for the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that the applicant will suffer significant harm (s.36(2)(aa) of the Act).
Section 36(2A) provides the following definition of significant harm:
A non-citizen will suffer significant harm if:
a) the non-citizen will be arbitrarily deprived of his or her life; or
b) the death penalty will be carried out on the non-citizen; or
c) the non-citizen will be subjected to torture; or
d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
e) the non-citizen will be subjected to degrading treatment or punishment.
None of this was outlined by the Tribunal. This is unfortunate. An applicant seeking protection arguably deserves more content and analysis from those charged with assessing their claims.
But does brevity amount to jurisdictional error?
While the Court is sympathetic to applicant’s frustrations in this regard, and while the Court is perplexed by the lack of detail provided in the Tribunal’s reasons, it cannot be said here that the reasons evidence jurisdictional error.
Brevity of reasons is not, of itself, an error: NAXT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 279 at [15] per Jacobson J.
Here, it cannot be said that the applicant’s claims or her evidence were not assessed (as she seems to suggest in ground 1 of her judicial review application).
The Tribunal took the applicant through her claims and asked if there was any other evidence it needed to address. She said no. Having assessed the claims and the evidence that was before it, the Tribunal had no choice but to reject the applicant’s visa based, as it was, on economic persecution and economic hardship, because it was evident that she did not satisfy any of the relevant criteria in either ss.5J or 36(2)(a) of the Act.
While the Tribunal did not reference the legislative sections per se, or in any detail, it is clear on an analysis of the Tribunal’s decision that all of the key concepts relevant in the Act are addressed.
In the particular circumstances of this case, although the reasons provided are not ideal, the Tribunal’s findings were open to it on the evidence. There is nothing to suggest that the Tribunal failed to consider the applicant’s claims or any relevant information.
The Tribunal here sets out the basis for its findings and the paragraphs provided demonstrate an evident and transparent justification for its findings: Li at [76] and [105]; Singh at [44]-[45].
In so far as the applicant is suggesting that the Tribunal’s decision is illogical or irrational, the Court is guided by the principles outlined in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), wherein Crennan and Bell JJ set out the test for irrationality or illogicality as follows:
131.The test for illogicality or irrationality must be to ask whether logical or irrational or reasonable lines 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, 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.
The Court also notes that in SZMDS per Crennan and Bell JJ in SZMDS further explained that:
135. 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.
SZMDS sets a very high threshold for findings of irrationality or illogicality. In this context the Court is also guided by the decision in Gupta v Minister for Immigration & Border Protection (2017) FCAFC 172 at [34]–[36] and DAO16 v Minister for Immigration & Border Protection (2018) FCAFC 1 at [30].
Having reviewed the Tribunal’s decision, it cannot be said that it was illogical or irrational as those terms are described above. Once it was evident that the applicant’s claims did not raise a relevant refugee criterion, that was, in effect, the end of the analysis required of the Tribunal.
Ignoring or failing to take into account relevant material (including relevant evidence) or relying on irrelevant material can amount to jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; SZRKT at [111].
That is not the case here. The applicant here has not identified any irrelevant considerations allegedly taken into account or any relevant considerations that were allegedly overlooked and it cannot be said on the evidence before the Court that the Tribunal’s reasons are based on irrelevant considerations or fail to take into account relevant information.
Further, it cannot be said that the applicant was not afforded procedural fairness (as is suggested in ground 2 of her judicial review application). There is no evidence that the applicant was denied an opportunity to speak, clarify her position, present further evidence or that she failed to understand what was occurring. The applicant was invited to attend, and did attend, a hearing on two occasions. She was taken through her claims and asked if she wanted to expand on them. She chose not to. She was asked if there was further evidence, within the context of the legislative meaning of significant harm and the real risk test for complementary protection. No evidence was provided. The applicant was also provided translation services in Mandarin at the hearing. No adjournments were requested. Here, on the evidence, procedural fairness and fairness was provided.
The applicant was asked if there was anything further in relation to ground 3 or, indeed, any of her claims. No answer that would assist her today was provided.
Ground 3, in effect, seeks merits review. As noted above, this Court cannot engage in an impermissible merits review of the Tribunal’s decision.
Conclusion and Orders
Overall, the Court finds that no jurisdictional error arises from the grounds of review articulated.
The application for judicial review is dismissed.
In the circumstances of this case, a costs order is required.
The Minister seeks costs fixed in the amount of $5,000. The Court notes this amount is well below the current scale of costs that guides this Court.
The Court orders that the applicant pay the Minister’s costs fixed in the sum of $5,000.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 10 April 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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