CJZ16 v Minister for Immigration
[2019] FCCA 29
•16 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJZ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 29 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizens of Malaysia – failure to appear before Delegate – failure to appear before Administrative Appeals Tribunal – whether applicants given a fair chance to present evidence – reason for non-appearance – whether applicants misinformed by third party – whether risk of harm considered – whether jurisdictional error. |
| Legislation: Evidence Act 1995 (Cth), ss.56(2), 140 Migration Act 1958 (Cth), ss.36, 425, 425A, 426A, 430, 441A, 441C, 476 Migration Regulations 1994 (Cth), reg.4.35D |
| Cases cited: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172; (2000) 74 ALJR 1206; (2000) 173 ALR 648; (2000) 26 Fam LR 237 SZVFW & Anor v Minister for Immigration & Anor [2016] FCCA 2083; (2016) 311 FLR 459 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| First Applicant: | CJZ16 |
| Second Applicant: | CKA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 396 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 19 April 2018 |
| Date of Last Submission: | 19 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 16 January 2019 |
REPRESENTATION
| First Applicant: | In person (with the assistance of an interpreter) |
| Second Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms A Ladhams |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 396 of 2016
| CJZ16 |
First Applicant
CJK16
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application for judicial review (“Judicial Review Application”) filed on 29 August 2016 the applicants seek review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision dated 5 August 2016 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Protection (Class XA) visa (“Protection Visa”) to the applicants.
The Tribunal Decision appears in Exhibit 1, which is the Court Book (“CB”), at CB 135-143. At hearing the Minister advised the Court that a document had been omitted from the Court Book, and sought leave to file an affidavit of Ms Sara Anicic affirmed 19 April 2018 (“Ms Anicic’s Affidavit”) annexing a copy of the document. The document was a record of two SMS messages that were sent to the applicant by the Tribunal, and which were referred to in the Tribunal Decision: CB 137-138 at [17]. The Court granted leave for Ms Anicic’s Affidavit to be filed in Court, and it was read, without objection from the applicants.
Background to Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the first applicant arrived in Australia on 27 February 2013, and the second applicant arrived in Australia on 9 May 2013, and are both Malaysian citizens and are in a domestic relationship: CB 91-92;
b)on 10 October 2014 the applicants lodged an application for the Protection Visa, the second applicant being named as a member of the family unit and making no individual claims;
c)the first applicant made the following claims for protection:
i)he was working for a designer, who he named (“Designer”), and when he asked for payment the Designer did not want to pay him, and the Designer hired underground gangsters to beat up the first applicant causing him to be afraid and fear violence against him as the Designer has power with the police and gangsters because a very close relative of the Designer controls a gang group and can do very violent and horrible things to the first applicant: CB 21-23;
ii)when the first applicant was having tea in Selangor two cars appeared in front of him and he was forced into a car and abducted, and he was punched and kicked and warned not to go to the police or they will keep beating him and hunt him down: CB 22;
iii)the first applicant fears that suppliers will come after him as even though he sold all his property and valuables to pay his debts it was not enough to repay them all and they are very violent and have been to his home to threaten him: CB 21-22;
iv)many strange people have come to the first applicant’s house looking for him since he departed Malaysia and his mother said they will surely harm him: CB 23; and
v)gangs in Malaysia are known to be violent and ruthless and the first applicant will face cruel mistreatment if he returns as he has already reported the Designer to the police and they said they will not take the case, and they told the Designer who had a gang member follow him: CB 24;
d)the applicants were invited to attend an interview with the Delegate, but failed to respond to the invitation: CB 84, and on 22 September 2015 the Delegate’s Decision was to refuse to grant the applicants a Protection Visa: CB 91-99;
e)on 20 October 2015 the applicants sought review of the Delegate’s Decision in the Tribunal, and were invited to attend a Tribunal hearing on 5 August 2016 (“Tribunal Hearing”): CB 100 and 113; and
f)the applicants did not attend the Tribunal Hearing, and the Tribunal affirmed the Delegate’s Decision not to grant the applicants a Protection Visa: CB 135-143.
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)detailed the response of the first applicant to each question asked on his Protection Visa application concerning his claims for protection and summarised the Delegate’s Decision: CB 136-137 at [3]-[10];
b)noted that the applicants did not attend the Tribunal Hearing and had not communicated with the Tribunal to explain their non-attendance prior to the commencement of the Tribunal Hearing: CB 137 at [14];
c)detailed the contents of the Tribunal Hearing invitation that it had sent the applicants and was satisfied that the invitation, and the means by which it was sent, satisfied the requirements of ss.426A and 441A of the Migration Act so as to enable the Tribunal to make a decision without taking any further action to allow or enable the applicants to appear before it: CB 137 at [12]-[16];
d)considering all the circumstances of the case, including that the applicants had failed to take the opportunity to participate in an interview with the Department and that the first applicant had been sent SMS reminder messages on 29 July 2016 and 4 August 2016 regarding the Tribunal Hearing, determined that it should proceed with the Tribunal Hearing in the absence of the applicants: CB 137 at [17];
e)referred to the relevant legislative provisions and identified that the issue in the case was whether the first named applicant satisfies the criteria in s.36(2)(a) or (aa) of the Migration Act for the grant of a Protection Visa, and noted the fate of the second applicant turned on the Tribunal's findings in respect of the first applicant's claims since the second applicant had not made separate or individual protection claims herself: CB 138 at [19];
f)noted that:
i)there were only brief details in the applicants’ Protection Visa application;
ii)the applicants had not attended the interviews with the Delegate; and
iii)the applicants had not appeared at the Tribunal Hearing,
and found that it was unable to be satisfied as to any substantive aspect of the first applicant's claims: CB 138 at [22]-[23];
g)on the evidence before it:
i)was not satisfied the first applicant was not paid after finishing work for the Designer;
ii)was not satisfied that the Designer’s employer hired gangsters to beat up the first applicant;
iii)found that the first applicant was not afraid of underground violent gangsters;
iv)was not satisfied that the first applicant had no money or that suppliers would come to him; and
v)was not satisfied that the first applicant’s life was in danger and that he left Malaysia for that reason: CB 138 at [24];
h)considered that the first applicant's failure to apply for a Protection Visa until 17 months after arriving in Australia seriously undermined the credibility of his claims: CB 138 at [25]; and
i)on the evidence before it did not accept that the first applicant faced a real chance of serious harm for a Convention reason or significant harm under the complementary protection criterion: CB 139 at [28]-[34].
Judicial Review Application
The Judicial Review Application contains the following grounds of review:
1. I wasn't given a fair chance to present my evidence to the Tribunal.
2. The Tribunal didn't consider the risks of me if I return to my country.
3. I was misinformed by another person who told me that I can't go to the Tribunal and it was no use for me to go to the Tribunal.
4. It was not fair for the tribunal to say that there is no risks and I will not be harmed under the law.
The first applicant filed an affidavit concurrently with the Judicial Review Application, but that affidavit did no more than attach a copy of the Tribunal Decision.
On 28 September 2016 a Registrar of the Court made orders (“Registrar’s Orders”) to progress this matter to hearing, allowing the applicants the opportunity to:
a)file and serve any amended Judicial Review Application including particulars;
b)file and serve additional supporting affidavits; and
c)file and serve written submissions.
The applicants filed no further materials pursuant to the Registrar’s Orders. Notwithstanding the applicants’ failure to file further materials in support of the Judicial Review Application, at hearing the Court:
a)explained to the applicants that they were required to establish jurisdictional error in the Tribunal Decision, and gave a basic outline of the nature of jurisdictional error to the applicants;
b)heard evidence from the first applicant, particularly in relation to ground 3 insofar as it may have given rise to a case of fraud on the Tribunal by a third party; and
c)heard submissions from the first applicant on behalf of himself and the second applicant as follows:
i)the first applicant did not understand English and did not understand the SMS sent to him from the Tribunal;
ii)the first applicant reported “the matter” to the Malaysian Police, and the Malaysian Police refused to take any further actions to protect him, and the Tribunal did not take into consideration that if he returns to Malaysia, he will be persecuted because even before he fled to Australia, he was kidnapped and physically hurt;
iii)even after the first applicant reported the matter to the police, they still came to him and disturbed him, and the fact that they know that he reported the matter to the police indicates that they have got power in the legal system so that they get information from the from police about any actions he had against them; and
iv)grounds three and four were correct in that the first applicant only got “information” from a couple of people and the Tribunal does not know what happened to him, he is the only person who knows about it.
The Minister made written and oral submissions as follows:
a)no particulars have been provided in support of any of the applicants' grounds and the failure to particularise a ground of review is itself sufficient to warrant dismissal of that ground;
b)the Tribunal Hearing invitation complied with all of the requirements in s.425A of the Migration Act, including that it:
i)gave the applicants notice of the date, time and location of the Tribunal Hearing;
ii)was given to the applicants by one of the methods specified in s.441A of the Migration Act, in that it was sent to the email address provided by the applicants in their application for review to the Tribunal;
iii)gave the applicants the prescribed period of notice, being 14 days, as provided in reg.4.35D(3) of the Migration Regulations 1994 (Cth) (“Migration Regulations”); and
iv)contained a statement of the effect of s.426A of the Migration Act;
c)the first applicant was reminded of the Tribunal Hearing via two SMS messages sent to his mobile phone;
d)the Tribunal, pursuant to s.426A of the Migration Act, was permitted to decide on the review without taking further action to enable the applicants to appear, and was not required to take any further measures to permit the applicants to present evidence, and therefore complied with all of its obligations with respect to giving the applicants a “fair chance” to present their evidence;
e)it was not unreasonable for the Tribunal to proceed under s.426A of the Migration Act given the SMS reminders and the absence of any evidence of close contact or engagement by the applicants with the Tribunal;
f)the Tribunal identified and summarised the claims made by the first applicant: CB 136 at [3]-[8], and at CB 138-139 at [21]-[34] considered the claims articulated by the first applicant in the Protection Visa application, and assessed the claims in detail, and found that it was not satisfied that the first applicant would face, on return to Malaysia, a real chance of serious harm or a real risk of significant harm;
g)there is no evidence to support ground 3, and it plainly does not disclose a jurisdictional error on the part of the Tribunal; and
h)the assertion that it was “not fair” for the Tribunal to reach its conclusion suggests that the applicant is inviting the Court to engage in impermissible merits review.
In submissions in reply the applicants sought to tender evidence that the first applicant had made a report to the Malaysian Police. As indicated to the applicants at hearing the task of this Court is to review the Tribunal Decision for jurisdictional error, not to review the merits of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and whilst the evidence sought to be tendered would have been relevant to the task of the Delegate or the task of the Tribunal, its tender to support a claim that the Tribunal was wrong in its fact-finding is impermissible: SZNOE v Minister for Immigration & Citizenship [2012] FCA 96 at [56]-[57] per Greenwood J, and therefore it was irrelevant to the task of the Court, and therefore inadmissible: Evidence Act 1995 (Cth) (“Evidence Act”), s.56(2).
Consideration
Jurisdictional error required
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal may constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error, so too a lack of intelligible justification in findings made by the Tribunal: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300, or unreasonableness: Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225 (“Li”).
The Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine claims for protection: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicants bear the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [48] per Griffiths, White and Bromwich JJ.
Lack of particulars
The Federal Court has held that a failure to particularise an originating application in migration judicial review proceedings means that the grounds cannot succeed: MZARG v Minister for Immigration & Border Protection [2018] FCA 624 at [25] per McKerracher J; AYE16v 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. More recently (and since this case was argued) the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [9] per Colvin J has held that it will rarely be appropriate to dismiss a ground of review in a migration case for lack of particularisation where a party is self-represented, and it is appropriate for the party to be afforded an opportunity to explain orally the matters with which they take issue. That is, in fact, what occurred in these proceedings, with the Court providing the applicants with the opportunity to give evidence on one ground, and otherwise providing the opportunity for the applicants to make oral submissions. The first applicant took the opportunity to make oral submissions on behalf of both applicants.
Ground 1
Ground 1 is a procedural fairness or unreasonableness ground: the applicants submit they were not given a fair chance to present evidence to the Tribunal.
The Tribunal is required by s.425 of the Migration Act to invite the applicants to appear before it to give evidence and present arguments. The Tribunal Hearing invitation must be a real and meaningful opportunity for the applicant to present evidence and arguments, and not simply a hollow shell or an empty gesture: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31] per Goldberg J.
With respect to the Tribunal Hearing invitation the Court finds as follows:
a)the invitation was addressed to the attention of the first applicant, however the invitation itself was extended to both applicants such that the Tribunal extended a real and meaningful invitation to the first and second applicants to attend the Tribunal Hearing: SZSXV & Anor v Minister for Immigration & Anor [2014] FCCA 1584 at [61] and [70] per Judge Barnes;
b)the time and place of the Tribunal Hearing are clearly marked on the invitation: Migration Act, s.425A(1);
c)the invitation was sent on 20 July 2016 by email, a method prescribed by s.441A(5)(b) of the Migration Act as an accepted form of notification: Migration Act, s.425A(2)(a);
d)by virtue of s.441C(5) of the Migration Act the applicants are taken to have received the invitation at the end of the day on which it was transmitted, being 20 July 2016;
e)having been deemed to receive the invitation on 20 July 2016, the applicants were invited to the Tribunal Hearing 16 days prior to the hearing on 5 August 2016, thereby complying with the minimum 14 day notice period under reg.4.35D(3) of the Migration Regulations: Migration Act, s.425A(3); and
f)the Tribunal attached an information sheet which noted, in accordance with s.425A(4) of the Migration Act, that in the event the applicants did not attend the Tribunal Hearing, the Tribunal may dismiss the application in accordance with s.426A of the Migration Act, and which detailed at length the manner in which an applicant may seek an adjournment if unable to attend the Tribunal Hearing, and the procedure for dismissing an application for non-appearance.
The Tribunal, having complied with s.425A of the Migration Act, was therefore under no further obligation to ensure the applicants were aware of the Tribunal Hearing, or would attend the Tribunal Hearing: Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73; (2006) 150 FCR 439; (2006) 231 ALR 630 (“SZFHC”) at [39] per Spender, French and Cowdroy JJ. Notwithstanding this, the Tribunal sent two SMS reminders of the Tribunal Hearing to the nominated phone number of the applicants on 29 July 2016 and 4 August 2016: CB 137-138 at [17]; Ms Anicic’s Affidavit, Annexure SA1. Section 425 of the Migration Act endowed the applicants with a statutory right to be invited to give evidence and make arguments before the Tribunal. Because the Tribunal invited the applicants, the applicants’ failure to accept the invitation is not a denial of procedural fairness, nor a jurisdictional error: SZFHC at [39] per Spender, French and Cowdroy JJ. The duty of the Tribunal does not extend to ensuring that the applicants in fact take advantage of the opportunity afforded to them: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172; (2000) 74 ALJR 1206; (2000) 173 ALR 648; (2000) 26 Fam LR 237 at [38] per Kirby J; Przybylowski v Australian Human Rights Commission [2018] FCA 25 at [9] per Perry J.
Even though the applicants, having been validly invited to the Tribunal Hearing, did not notify or contact the Tribunal prior to the Tribunal Hearing, the Tribunal was still required to convene the Tribunal Hearing at the scheduled time and place as stated in the invitation: Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20 at [16] per Branson, Emmett and Bennett JJ. The Tribunal Hearing was convened at the stated date and time and upon the applicants’ non-appearance, and pursuant to s.426A(1A)(a) of the Migration Act, the Tribunal made “a decision on the review without taking any further action to allow or enable the applicant to appear before it.” The Tribunal provided the written statement pursuant to s.430 of the Migration Act on 5 August 2016, the written statement being the Tribunal Decision, which accords with the requirements in s.430 of the Migration Act.
AZAFB v Minister for Immigration & Border Protection & Anor [2015] FCA 1383; (2015) 244 FCR 144; (2015) 68 AAR 71 (“AZAFB”) and Kaur & Anor v Minister for Immigration & Border Protection & Anor [2014] FCA 915; (2014) 236 FCR 393; (2014) 141 ALD 619 (“Kaur”) both concerned the Tribunal exercising the discretion to dismiss an application under s.426A of the Migration Act without making any attempt to contact the applicant on the day, and in respect of AZAFB failing to call the applicant’s telephone number provided to the Tribunal. In both cases the Federal Court found the Tribunal to have committed a jurisdictional error because it denied the applicants a proper opportunity to be heard, and because it was legally unreasonable for the Tribunal to make a finding against an applicant pursuant to s.426A of the Migration Act when it had not utilised the information in its own records to attempt to contact an applicant when the applicant failed to appear at the Tribunal review hearing before proceeding: AZAFB at [26] and [28] per North ACJ; Kaur at [133]-[135] per Mortimer J.
In SZVFW & Anor v Minister for Immigration & Anor [2016] FCCA 2083; (2016) 311 FLR 459 (“SZVFW – Circuit Court”) this Court held that the Tribunal’s exercise of its power to make a decision on a review in circumstances where applicants did not attend the Tribunal hearing was legally unreasonable: SZVFW – Circuit Court at [82] per Judge Barnes. In SZVFW – Circuit Court the Court:
a)held that it was unnecessary to resolve whether a letter of invitation to a Tribunal hearing had been dispatched within three working days of the date of the letter so as to come within the prescribed means of communication under s.441A(4) of the Migration Act, thereby satisfying s.426A(1)(a) of the Migration Act: SZVFW – Circuit Court at [51] and] [52] per Judge Barnes;
b)found that it was sufficient that the Tribunal was not able to satisfy itself that the applicants had been formally advised of the Tribunal hearing or that they were in a practical sense aware of the Tribunal hearing date and time: SZVFW – Circuit Court at [75] per Judge Barnes;
c)found that the attendance of the applicants at the Tribunal hearing could have made a difference to the outcome of the review, and that the Tribunal could easily have identified another means of communicating with the applicants, including by means of mobile telephone number and email, but there was no evidence of any attempted communication by these means with the applicants from the Tribunal: SZVFW – Circuit Court at [79] per Judge Barnes;
d)found that the matter had been before the Tribunal for a relatively short time, that there was not a lengthy period during which the applicants had done nothing, and they were not represented, and in those circumstances the absence of a pattern of communication between the Tribunal and the applicants was not determinative: SZVFW – Circuit Court at [78] per Judge Barnes; and
e)found that even assuming that the letter of invitation was dispatched within the prescribed period so that it complied with ss.425, 425A and 426A(1) of the Migration Act, the decision made by the Tribunal to determine the review application without taking any further action to contact the applicants was legally unreasonable: SZVFW – Circuit Court at [82] per Judge Barnes.
Minister for Immigration & Border Protection v SZVFW & Ors [2017] FCAFC 33; (2017) 248 FCR 1 (“SZVFW – Federal Court”) was an appeal by the Minister from SZVFW – Circuit Court. The Full Court of the Federal Court dismissed the appeal holding that:
a)as an appeal by way of rehearing, the role of the Full Court of the Federal Court was correction of any appealable error of fact or law, and it was not to consider the matter afresh and come to its own view: SZVFW – Federal Court at [41]-[43] per Griffiths, Kerr and Farrell JJ; and
b)to determine if the Tribunal acted unreasonably requires an evaluative judgment by this Court, having identified and weighed appropriately all the relevant circumstances and legal principles: SZVFW – Federal Court at [44] per Griffiths, Kerr and Farrell JJ.
In SZVFW – Federal Court at [55]-[56] per Griffiths, Kerr and Farrell JJ the Full Court of the Federal Court found that:
a)Kaur was a case determined upon its particular facts, notably that it was out of character for the applicant not to appear before the Tribunal; and
b)AZAFB turned on its own facts, and does not stand for the proposition that the Tribunal is obligated to search its records to find an alternative way to contact an absent applicant.
In Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 (“SZVFW – High Court”) (a judgment handed down after this matter was argued) the High Court, unanimously, allowed an appeal by the Minister from SZVFW – Federal Court. The High Court held that the exercise of the discretion by the Tribunal, to proceed to determine the matter in the absence of the applicants pursuant to s.426A of the Migration Act, was legally reasonable. In so doing, the High Court observed that:
a)the intention of the scheme of the Migration Act is that the Tribunal be permitted to consider the exercise of its powers under s.426A of the Migration Act if the preconditions for the exercise of that power given by s.426A have been met: SZVFW – High Court at [7] per Kiefel CJ;
b)the task of a court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable, which requires an assessment as to whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power, and thus, in relation to the particular decision in issue, whether the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power: SZVFW – High Court at [78]-[80] per Nettle and Gordon JJ;
c)the reasonableness of a decision made by an administrative decision-maker depends upon the existence of justification, transparency and intelligibility within the decision-making process, but also as to whether the decision falls within a range of possible, acceptable outcomes defensible in respect of the facts and law and, in that regard, error may be identified simply because the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances: SZVFW – High Court at [82]-[83] per Nettle and Gordon JJ; and
d)“legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case …”: SZVFW – High Court at [84] per Nettle and Gordon JJ.
In SZVFW– High Court at [70]-[71] per Gageler J the High Court made the following observations:
[70] Nothing before the Tribunal took the respondents’ application for review into the realm of the extraordinary. To the contrary, the respondents’ failure to respond to the earlier invitation from the Minister’s Department and their failure to provide the Tribunal with any further documentation in support of their claims for protection, both of which considerations were expressly taken into account by the Tribunal, suggested that a further attempt by the Tribunal to make contact with them would be unlikely to elicit a response.
[71] The Tribunal did not act unreasonably in choosing to make the decision without taking any further action to allow or enable the respondents to appear before it. The primary judge’s conclusion that the Tribunal did act unreasonably in so doing was wrong. The Full Court should have so decided.
In SZVFW – High Court at [140]-[141] per Edelman J the High Court observed as follows:
[140] The matters relied upon by the primary judge do not, even in combination, establish legal unreasonableness. In particular, two matters of statutory context require a highly demanding approach in determining whether legal unreasonableness exists in the exercise of the power under s 426A(1), which is in Div 4 of Pt 7 of the Migration Act. First, there was the objective of review of protection visa decisions under Pt 7, expressed in s 420(1) as providing a mechanism that is “fair, just, economical, informal and quick”. Secondly, and in relation to “fairness and justice”, s 422B(1) provided that “[Div 4] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with” and, as Nettle and Gordon JJ observe, the effect of s 441C(4) was to deem the respondents to have received the invitation to the hearing.
[141] The decision by the Tribunal, for the reasons it gave, was not legally unreasonable. Three further reasons, additional to those given by the Tribunal, are also relevant. First, in the original applications by the respondents to the Minister, they undertook to inform the Department if they intended to change their address for more than 14 days while their applications were being considered. No change of address was provided. It was reasonable for the Tribunal to draw the inference that the respondents were still accessing mail at that address. Secondly, the letter from the Department refusing the respondents’ original applications was sent to their nominated address. Thirdly, prior to the decision of the delegate, the respondents had not attended a scheduled interview with the Department, despite apparently being made aware of the interview by letters sent to their nominated address and a telephone call rescheduling the interview. It would have been reasonable to infer that a rescheduled hearing before the Tribunal might have been futile.
In the circumstances of this case, the Court observes as follows:
a)all of the preconditions for the Tribunal to validly exercise its powers pursuant to s.426A of the Migration Act had been met for the reasons set out above: see [17]-[19] above; and
b)the applicants:
i)did not attend the interview before the Delegate, despite being invited to do so: CB 84-85;
ii)did not forward materials in support of the Protection Visa application to the Tribunal to advance their claims: CB 137 at [14]; and
iii)did not attend the Tribunal Hearing, despite being invited to do so: CB 113, and being reminded, twice by SMS, of the Tribunal Hearing: CB 137-138 at [17].
The Court considers the behaviour of the applicants up to the time of the Tribunal Decision indicated a disengagement with the Protection Visa application process inconsistent with applicants legitimately pursuing their Protection Visa application such that there was nothing to suggest to the Tribunal that the applicants’ non-appearance was out of character or amiss, or that there was any basis for concluding that the applicants would attend an adjourned Tribunal Hearing: MZALO v Minister for Immigration & Border Protection [2016] FCA 1339 at [22]-[28] per Mortimer J; SZFHC at [39] per Spender, French and Cowdroy JJ, SZVFW – High Court at [70] per Gageler J and [141] per Edelman J. By reason of the applicants being invited to the Tribunal Hearing in the manner and form prescribed by the Migration Act there was no denial of procedural fairness by failing to give the applicants an opportunity to be heard. Nor was it, in the circumstances set out above, unreasonable for the Tribunal to proceed to determine the applicants’ review application in circumstances where the Tribunal had proper grounds for so doing: there was no abuse, or excess, of power in the Tribunal Decision. There is, therefore, no jurisdictional error on the basis of procedural fairness or unreasonableness in relation to the Tribunal’s invitation, hearing and determination process.
At hearing the applicant made a submission to the effect that he could not understand the SMS messages as he could not read or speak English. Whether or not the first applicant understood the SMS messages is irrelevant as the Tribunal had already complied with its statutory obligations under the Migration Act. The Court notes that in the Protection Visa application the first applicant indicated that he could both speak and read English, and that he had had no assistance in completing the Protection Visa application form: CB 11 and 15. In BZAGU v Minister for Immigration & Border Protection & Anor [2015] FCA 920; (2015) 235 FCR 133 at [19] per Logan J the Federal Court held there is no requirement that clear particulars of information and notice “must be given in a review applicant's native language”. The Court considers the same applies to an invitation to attend the Tribunal Hearing, and notes in any event the Tribunal had no reason to believe the applicant could not understand English when he said that he was able to speak and read English in the Protection Visa application form.
In all the above circumstances no jurisdictional error in the Tribunal Decision is established by ground 1.
Ground 2
In ground 2 the applicants assert that the Tribunal failed to consider an integer of their protection claim, namely the risk that they (and, in particular, the first applicant) will suffer harm if they are returned to Malaysia. If the Tribunal did fail to consider an integer of the applicants’ claims that would constitute a jurisdictional error on the principles established in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J. Contrary to the applicants’ assertion in ground 2 the Tribunal did consider the risks if the applicants were to return to Malaysia. Specifically, the Tribunal stated as follows:
23. On the evidence before it, the Tribunal is unable to be satisfied as to any substantive aspect of the applicant's claims.
24. In particular, and on the evidence before it, the Tribunal is not satisfied the applicant was not paid after finishing work for [the Designer] or that his employer hired some "underground gangsters" to beat him up. On the evidence before it, the Tribunal does not find the applicant was afraid of the underground violent gangsters. Nor is it satisfied the applicant has no money or that suppliers would come to him, or that his life is in danger and that he left Malaysia for that reason…
26. Having regard to all of the evidence before it in this case, the Tribunal does not accept the applicant's claim that when having tea in Selangor, or at any other time or place for that matter, he was abducted, punched or threatened not to go to the police as claimed.
27. Having regard to the evidence before it, the Tribunal rejects that he will face any harm at the hands of the designer for whom he worked, or that person's associates or agents, or anyone else. Nor does it accept, based on the evidence before it, that the applicant could not repay debts or that his creditors would, or will, pursue, threaten or harass him as claimed.
28. Having regard to all the evidence before it, the Tribunal does not accept the applicant's claim that people have been coming to his house looking for him. It is not satisfied, on the evidence before it, that [the Designer] is very powerful, or that he has a close relative who controlled the gang, or that he or anyone has a motive to do very violent and horrible things to the applicant as he claims. Based on the evidence before it, the Tribunal does not accept that he will face any harm, or cruel mistreatment as he claims, if he returns to Malaysia.
CB 138-139 at [23]-[24] and [26]-[27].
The Tribunal rejected each of the first applicant’s claims, and having rejected such claims it was unnecessary for the Tribunal to assess the risk the first applicant would face on return to Malaysia for those reasons: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47] per French, Sackville and Hely JJ. Despite this, the Tribunal went on to find as follows:
29. As the Tribunal finds on the evidence before it that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future if he returns to Malaysia…
30. In relation to the refugee criterion, the Tribunal is not satisfied that the applicant faces, on return to Malaysia, a real chance of serious harm, as defined, as a result of: physical mistreatment by his former employer, or by gangsters or anyone else who might be associated with his former employer.
31. In particular, in relation to the refugee criterion, the Tribunal is not satisfied that the applicant faces a real chance, for a Convention reason, of significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens the applicant's capacity to subsist, or denial of capacity to earn a livelihood of any kind which threatens his capacity to subsist.
32. In relation to the complementary protection criterion, the Tribunal is not satisfied that the applicant faces, on return to Malaysia, a real risk of significant harm, as defined, as a result of: any conflict with his former employer or because of his former employer's association with gangsters or any particular or special relationship with the police or other authorities in Malaysia.
CB 139 at [29]-[32].
It is clear the Tribunal considered the first applicant’s claims, to the extent it was able to do so on the evidence before it, and assessed the risk the applicants would face if returned to Malaysia. No jurisdictional error in the Tribunal Decision is therefore established by ground 2.
Ground 3
Ground 3 suggests the applicants were misled and told by a third party that they were not required to attend the Tribunal Hearing, and that it was of “no use” for them to attend the Tribunal Hearing.
Fraud by a third party will vitiate the Tribunal Decision where the fraud stultifies the Tribunal’s decision-making processes, inhibiting the Tribunal from exercising the statutory function with which it is endowed by the Migration Act: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64 (“SZFDE”) at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
Where an applicant alleges fraud against a third party an applicant must have an opportunity to go into the witness box to give evidence, with the knowledge of the issues needed to be addressed: SZRUR v Minister for Immigration & Border Protection & Anor [2013] FCAFC 146; (2013) 216 FCR 445; (2013) 305 ALR 557; (2013) 138 ALD 46 at [39]-[40] per Robertson J, [53] per Allsop CJ and [59]-[60] per Mortimer J. The level of satisfaction required in cases where fraud is alleged is that which was required in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336; [1938] ALR 334 (“Briginshaw”), CLR at 363 and 368 per Dixon J; Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 (“SZLIX”) at [33] per Tamberlin, Finn and Dowsett JJ; The Briginshaw standard is now codified in s.140 of the Evidence Act: Commonwealth & Anor v Fernando [2012] FCAFC 18; (2012) 200 FCR 1; (2012) 287 ALR 267; (2012) 126 ALD 10 at [128] per Gray, Rares and Tracey JJ; Choudhary v Minister for Immigration & Anor [2018] FCCA 326 at [29]-[30] per Judge Lucev.
The first applicant agreed to enter the witness box and provide evidence as to the claim the applicants (or at least the first applicant) were misled by another person. The first applicant’s evidence was brief but included the following:
HIS HONOUR: All right. Ground 3 of the application that you have filed indicates that you were misinformed by another person who told you that you could not go to the tribunal, and it was no use for you to go to the tribunal. Do you wish to tell the court the circumstances in which that misinformation was conveyed to you and what was said to you?
THE INTERPRETER: So the SMS was just sent to me for no particular reason, and I got the message. I read the message but I couldn’t understand.
HIS HONOUR: Yes. All right. Well, that deals with the SMS, but ground 3 says that the applicant was misinformed by another person who told him that he can’t go to the tribunal, and it was no use for him to go to the tribunal. Now, does the applicant wish to tell us about who it was that misinformed him and what they said?
THE INTERPRETER: I don’t really know.
HIS HONOUR: So “no”?
THE INTERPRETER: I don’t know.
…
HIS HONOUR: In fairness to the applicant, the court should reiterate that in order for ground 3 to have any prospect of success, the applicant’s evidence must establish that there was a fraud on the tribunal which, in common terms, means that it was misled in such a way as to prevent it from doing its job. Having regard to that, does the applicant still not wish to give any evidence in relation to ground 3?
THE INTERPRETER: I don’t really have any evidence to provide to the court. I just don’t understand. I simply don’t understand the contents of the SMS.
The Minister chose not to cross-examine the first applicant.
The first applicant therefore gave no evidence to support this claim, including no evidence as to the identity of the alleged third person, or the applicants’ relationship with the third person. In fact, it might be inferred from the first applicant’s evidence that no third party was involved and that what is alleged is that the Tribunal misled him by reason of the SMS messages. The Tribunal, of course, did not do so.
The applicants’ oral submissions went no further than stating that they agreed with the ground, and that the first applicant is only getting information from a “couple of people”.
The Court notes that there was no migration agent on the record for the applicants at any stage before the Delegate or the Tribunal, and the first applicant asserting he was only getting information from a “couple of people” fails to give an indication that the information was provided fraudulently as opposed to simply being negligent or inadvertent advice from a third party which does not, of itself, establish jurisdictional error: SZFDE at [45] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZLIX at [33] per Tamberlin, Finn and Dowsett JJ.
Nothing proffered at hearing discharged the onus upon the applicants to satisfy the Court they were misled by a third person into not attending the Tribunal. No jurisdictional error in the Tribunal Decision is therefore established by ground 3.
Ground 4
Ground 4 contradicts what the applicants put in ground 2, stating that the Tribunal was unfair in saying there were no risks of harm under the law if returned to Malaysia, whereas ground 2 asserts the Tribunal did not consider the risks of harm if returned to Malaysia. For reasons set out at [31]-[33] above ground 2 was not made out and did not establish jurisdictional error in the Tribunal Decision. That the applicants disagree with the outcome of the Tribunal Decision, and think that it was “not fair” does not amount to jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J. The findings made by the Tribunal were logical and reasonable in circumstances where the applicants had failed to avail themselves of opportunities to provide evidence in support of their claims. That the Tribunal rejected all of their claims was a matter for it as the arbiter of fact. In inviting the Court to consider the Tribunal saying there was no risk is unfair the applicants are seeking to have the Court engage in impermissible merits review contrary to the long-standing principles in Wu Shan Liang. The Court is satisfied that the Tribunal has considered the applicants’ claims, properly evaluated the evidence before it, and adhered to the procedural fairness obligations of the Migration Act, and therefore no jurisdictional error can be established in the Tribunal Decision.
Ground 4 does not therefore establish jurisdictional error in the Tribunal Decision.
Conclusion and orders
The Court has concluded there is no jurisdictional error in the Tribunal Decision and therefore the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 16 January 2019
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