CKJ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1148
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CKJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1148
File number(s): MLG 1278 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 4 December 2023 Catchwords: MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal to affirm decision to refuse the applicants a protection visa – whether the Tribunal was legally unreasonable in its failure to exercise its discretionary powers to get information or summon person(s) to give evidence pursuant to ss.424 and 427 of the Migration Act 1958 (Cth) – whether the Tribunal’s findings were otherwise affected by irrational or illogical reasoning to the extent that there was no evidence on which those findings were based or a failure to consider – application allowed. Legislation: Migration Act 1958 (Cth) ss.36, 424, 425A, 426, 427, 474, 476
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Cases cited: AYX17 v Minister for Immigration & Anor [2017] FCCA 2233
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
Craig v South Australia (1995) 184 CLR 163
Hossain v Minister for Immigration and Border Protections [2018] HCA 34
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 16 October 2023 Place: Melbourne Counsel for the Applicants: Mr Kenneally Solicitor for the Applicants: Victoria Legal Aid Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Clayton Utz 2
ORDERS
MLG 1278 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CKJ18
First Applicant
CKK18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application as amended on 8 September 2023 be allowed.
2.A writ of certiorari issue bringing the record of the decision of the Second Respondent dated 17 April 2018 in case number CLF2014/80505 affirming the decision of a delegate of the First Respondent not to grant the Applicants a protection visa into this Court and quashing it.
3.A writ of mandamus issue directing the Second Respondent to re-determine, according to law, the Applicants’ application to it for review.
4.The First Respondent pay the Applicants costs fixed in the amount of $8,987.35.
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
IN SUMMARY
The primary applicant is a citizen of Sri Lanka who claims to fear harm on return for reasons that stem from her performance of charitable works for and connection to the Kotelawala family (who were embroiled in a financial scandal in 2009 which implicated the primary applicant).
The applicants seek review of the Administrative Appeals Tribunal (Tribunal) decision to affirm the decision of a delegate of the First Respondent which refused their protection visa.
For the reasons that follow, the application established jurisdictional error in the Tribunal’s decision and it will be quashed and remitted with costs.
CONTEXT
Application for a protection visa
The primary applicant and her son (applicants) arrived in Australia on 2 May 2014 on a medical treatment visa (subclass 602).
On 4 June 2014, the primary applicant applied for a Protection (subclass 866) visa (protection visa) and named her son as secondary applicant.
On 8 October 2015, a delegate of the Minister for the Department of Immigration and Border Protection (as they then were) refused to grant the applicants the protection visa.
On 17 April 2018, the Tribunal affirmed the delegate’s decision.
On 11 May 2018, the applicants filed this application for judicial review of the Tribunal’s decision. An amended application was subsequently filed on 8 September 2023 which was not opposed.
On 16 October 2023, the amended application proceeded to hearing before the Court as presently constituted. The applicants and the Minister were represented by Counsel and the primary applicant attended the hearing with the assistance of an interpreter.
Grounds of review
By their amended application for judicial review, the applicants identified 4 grounds, the following 3 of which were pressed at hearing:
1.The Tribunal’s finding that the Sri Lankan police had no further interest in questioning the applicant was based on a finding that was irrational or illogical, or for which there was no evidence.
2.The Tribunal failed to consider a mandatory relevant consideration or cogent and critical evidence in the context of the review.
3.The Tribunal unreasonably failed to exercise its powers under s 427 or s 424 of the Act to take evidence or get information from the applicants’ proposed witnesses.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s.474 of the 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 Tribunal’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider 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: Craig v South Australia (1995) 184 CLR 163, 175.
The Applicants lodged their application for a protection visa on 4 June 2014, at which time the applicable legislation was the Migration Act 1958 (Cth) Act No. 62, (commenced 28 May 2014) (Act) which provided, at s.36(2)(a):
(2) 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 under the Refugees Convention as amended by the Refugees Protocol.
Under that provision, consideration of whether an applicant enlivened Australia’s protection obligations was undertaken with reference to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (hereinafter collectively referred to as the Convention).
The term “refugee” was defined by Article 1A(2) of the Convention as a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
By the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), the reference to the Convention was subsequently removed from s.36(2)(a) and definitions of “refugee” and “well-founded fear of persecution” were inserted in the legislation. Part 2 of Schedule 5 of those amending provisions applied to protection visas made on or after 18 April 2015 and, accordingly, the provision of s.36(2)(a) as in force at the time of the Applicants’ protection visa application (and the Convention) remained relevant to the Tribunal’s assessment.
Additional (or alternative) criterion for a protection visa was provided at s.36(2)(aa):
(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.
GROUND 3
By the third ground of the amended application, the applicants contended that the Tribunal acted unreasonably in its failure to take evidence or get information from the 3 witnesses who had provided a witness statement which were before the Tribunal, as it might have done pursuant to s.424 and/or s.427 of the Act.
Factual context
The uncontentious factual context of the Tribunal’s invitation to attend a hearing before it, communication about procedures for requesting witnesses to give evidence at the hearing, and the various responses by and on behalf of the applicants as are relevant to this ground are set out in the following paragraphs.
On 16 January 2017, the Tribunal invited the applicants’ then migration agent (as authorised representative) to attend a hearing scheduled for 21 March 2017. The invitation included a direction to the effect that any witness proposed to give evidence at the hearing was required to provide a witness statement setting out their evidence by 14 March 2017. By the enclosed correspondence, the Tribunal requested that the applicants read and complete the enclosed “Response to hearing invitation – MR Division” form to confirm attendance and any new information they wished the Tribunal to consider. Also enclosed was a leaflet which provided information about Tribunal hearings which included the following guidance:
Can I ask the AAT to obtain evidence?
You may, within 7 days after being notified that you are invited to attend a hearing, give us written notice that you want us to take oral or written evidence from a person or persons named in the notice or to obtain other written material. If you make such a request within that time limit, we will consider your notice but may decide not to obtain such evidence or written material. For example, we may be satisfied on a particular point, or may not consider the evidence to be relevant to your case.
You may use the ‘Response to hearing invitation – MR Division’ form to nominated persons you want us to take oral evidence from. If any person is in immigration or criminal detention, you should advise us immediately. You will need to arrange for any persons you nominate, who are not in immigration or criminal detention, to be available to give evidence.
On 21 February 2017, the applicants’ then migration agent communicated with the Tribunal about a change to the applicants’ contact details.
On 2 March 2017, the applicants’ then migration agent submitted a completed “Response to hearing invitation – MR Division” form which indicated that the applicants did not request that the Tribunal member takes evidence from another person.
On 17 March 2017, a new representative sent the Tribunal an appointment to so act and a covering letter which stated that the primary applicant had been confused about the nature of the hearing and stressed about it and requested an adjournment of the hearing so that they may properly prepare and also requested an interpreter for the primary applicant. That same day, the 21 March 2017 hearing was adjourned and rescheduled for 26 April 2017 and further correspondence was sent to the new migration agent which again invited the applicants to attend a hearing, enclosed the “Response to hearing invitation – MR Division” form and associated leaflet which were relevantly in the same terms as that extracted above. On this occasion, the covering invitation letter asked the applicants to “Please return the completed form within 7 days of being notified of this letter”.
On 29 March 2017, the applicants’ new representative (a Mr Speakman) responded to the hearing invitation. The cover letter confirmed that the attached response form indicated that there would be no witnesses but, if possible, sought to reserve the applicants’ rights in this respect. Mr Speakman expressly sought not less than a week before the hearing date to indicate the details of any witnesses that may be necessary.
On 31 March 2017, the Tribunal responded to note that the response form indicated there would be no witnesses but also to confirm that the member was aware of and agreeable to allowing the applicants’ request to reserve their right to request witnesses.
On 19 April 2017, Mr Speakman again requested an adjournment of the hearing by reason of insufficient preparation and because the representative had been “unable to marshall the facts and evidence in sufficient time for a Hearing on 26 April 2017”. It noted they were acting “pro bono”.
On 21 April 2017, the Tribunal granted a further adjournment and the hearing (previously listed for 26 April 2017) was rescheduled for 10 May 2017. The Tribunal enclosed a “new” “Response to hearing – MR Division” form and requested the applicants “Please return the completed form within 7 days of being notified of this letter.”. Again the Tribunal enclosed a leaflet which was relevantly in the same terms.
On 4 May 2017, Mr Speakman wrote to the Tribunal and requested another adjournment of the hearing by reason of a late withdrawal of a barrister briefed on a pro bono basis and additionally because they were “still engaged in the process of trying to procure evidence from independent witnesses and expert witnesses both in Sri Lanka and Melbourne”.
On 5 May 2017, there is a file note which records that Mr Speakman telephoned the Tribunal which discussion was noted as:
The Rep, Mr Speakerman called the Tribunal to say that there has been another development since he called yesterday. He said they found out that they are not registered to give migration advice and are unable to represent the applicant.
The Rep said they required an extension of time for the applicant to get representation. He said it had been difficult – as he has called up a few migration agents and barristers but none of them are willing to take the case at such short notice.
[…]
(sic.)
On 8 May 2017, the Tribunal refused the latest adjournment request which was appealed by the then representative. Also that day the Tribunal granted another adjournment of the hearing to 4 July 2017. The Tribunal enclosed another “new” “Response to hearing – MR Division” form and requested the applicants “Please return the completed form within 7 days of being notified of this letter.”. Again the Tribunal enclosed a leaflet which was relevantly in the same terms.
On 22 June 2017, a completed “Response to hearing invitation – MR Division” form was submitted to the Tribunal from an email address [email protected] and copied what appeared to be the primary applicant’s email address. On this occasion, the completed form indicated that the applicants did not request that the Tribunal member takes evidence from another person.
On 26 June 2017, a file note was made which records that Mr Speakman telephoned the Tribunal to ensure the applicant(s) had confirmed their attendance, that an interpreter had been booked and inquired if it was too late to advise the Tribunal of any witnesses for the case and Mr Speakman was informed the hearing response form would need to be completed with contact details for the witnesses.
On 27 June 2017, a file note was made which records that Mr Speakman again telephoned the Tribunal to inform there would be 2 witnesses giving evidence via phone, sought guidance as to whether this request was to be made in writing, was advised that if the response form had already been submitted then he could email the Tribunal with the names of the witnesses and their phone numbers and Mr Speakman said he would do so. The file note relevantly stated:
The Rep, Mr Speakerman called to inform the Tribunal the PRA will have two witnesses giving evidence via the phone. The Rep in addition asked if he has to inform the Tribunal in writing regarding this. I asked him whether he had sent in a hearing response already which he replied that the PRA had already sent. In that case, I told the Rep to send an email to the Tribunal with the names of the witnesses and their phone numbers. The Rep said he would do this.
The Rep also asked if he should include an explanation of the relation of the two witnesses. I told him that he should as that would assist the Member greatly.
The Rep also asked if the witnesses would have to swear on a holy book or take an oath of some kind. I confirmed that they would be asked to promise to tell the truth instead of promise on a holy book as they will be giving evidence via the telephone. The Rep said he understood and the call ended.
(sic.)
On 29 June 2017, the primary applicant sent an email to the Tribunal which attached her own witness statement and further stated that she intended to provide written witness statements of her husband, her daughter and her friend (who shall be referred to as PF). Further, that she would like her husband and her daughter to give evidence by telephone at the hearing and requested that the Tribunal let her know how this telephone evidence should be arranged.
On 30 June 2017, the primary applicant sent a series of emails to the Tribunal which respectively attached an unsigned and unsworn witness statement of her husband, her daughter and PF. No contact details for these additional witnesses were included in the email or the attachments.
On 3 July 2017, the Tribunal communicated with Mr Speakman by email to request a document. There is then a file note which recorded that Mr Speakman telephoned the Tribunal in response to their email, advised that he was no longer acting on behalf of the applicant(s) and had sent a notice of the change in May, and also advised that the applicant(s) had further documentation they wished to submit and asked whether it ought be provided by hard copy or email. Subsequently, on that same day, the primary applicant sent an email to the Tribunal which expressed her understanding that Mr Speakman had notified the Tribunal on 21 June 2017 that he was not representing her in the matter and added “So I’m representing by myself in future”.
On 4 July 2017, Mr Speakman sent a letter to the Tribunal by email with reference to his telephone conversations with the Tribunal on 8 May and 3 July 2017. By that correspondence, Mr Speakman confirmed that they were not the representative of the applicant and did not represent them in this matter and requested future correspondence be forward to the applicant and not their office.
On 4 July 2017, the Tribunal proceeded to hearing. According to the Tribunal’s reasons, the hearing was conducted with the assistance of an interpreter: paragraph [5]. The primary applicant gave oral evidence and expanded upon her written claims. No other person gave oral evidence on that occasion.
In its written reasons of 17 April 2018, the Tribunal referred to the statements of the primary applicant’s husband, daughter and friend which were provided in support of the claims but gave them little weight: at paragraph [38] of the Tribunal’s reasons. The Tribunal’s expressed reasoning was:
In the assessment below, the Tribunal has had regard to the statements provided in support of the applicant’s claims from her husband, daughter and close friend. However, the Tribunal gives these statements little weight because they do not provide any more detail that lends to the substance of the applicant’s claims in key areas.
Consideration
As a preliminary matter, on the face of the invitations to the applicants dated 16 January 2017, 17 March 2017, 21 April 2017 and 8 May 2017, there is no reference to s.425A or that the invitation was given “under s.425A” as the expression appears in s.426 of the Act. Nonetheless, it was understood to be accepted on review that only the first communication of 16 January 2017 was relevant and constituted an “invitation” for purposes of the obligation at s.426 of the Act: Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [42]-[49]. And, by that first invitation, that the Tribunal had notified the applicants that they were invited to appear before it to give evidence and had explained the effect of s.426(2): s.426(1)(a) and (b). Further, it was not contentious in the review proceedings that the Tribunal was not obliged to have regard to any written notice that the applicant(s) wanted the Tribunal to obtain oral evidence from named persons because the applicant(s) did not give such written notice within 7 days of being so notified. For completeness, neither did the applicants do so within 7 days of each additional invitation. Accordingly, the obligation at s.426(3) was not engaged and there is no error in this regard.
It was also accepted that the Tribunal did (and does) possess the power to get information including oral, telephone evidence pursuant to s.424 of the Act and to summon a person to give evidence pursuant to s.427 of the Act. There is no obligation on the Tribunal to do so but such discretionary powers are to be exercised within the bounds of reasonableness: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, [45]-[46] & Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), [76]; see also AYX17 v Minister for Immigration & Anor [2017] FCCA 2233 (AYX17), at [39].
Relevant error may be demonstrated where a decision is devoid of an “intelligible justification”, or is a decision at which no rational or logical decision maker could arrive on the same evidence: Li at [76]. The threshold for establishing such error is high.
The Tribunal is obliged to consider any properly made request to hear evidence but its powers to get any information it considers relevant and, for the purpose of its review, to take evidence or summon a person to appear before it to give evidence are not mandatory: AYX17 at [48] and [49].
There is also no obligation on the Tribunal to give written reasons for the decision to exercise a procedural power (or not, as the case may be) like that at s.427(1)(a) of the Act: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, at [16].
In the present case, it may be accepted that the Tribunal was not necessarily obliged to have regard to the applicants’ foreshadowed requests to call witnesses, and at the very least not required to grant those requests, and further that there was no requirement for nor were there any written reasons in relation to the Tribunal’s decision not to call the additional witnesses.
Here, in defending the claim that the Tribunal was nonetheless legally unreasonable, the First Respondent contended that the applicants’ request to call the 3 additional witnesses was “equivocal”. On a careful scrutiny of the materials before the Court, I do not consider it open to so find. The history of the matter, which involved multiple adjournments and therefore multiple invitations to attend the hearing and provide a response form and new response forms, is unfortunate. As the factual context detailed above reveals, the response forms (in each case that they were returned to the Tribunal) were populated as to reflect that no additional witnesses would be called. However, in communications which occurred in parallel to and ultimately superseded the return of the response forms, the communications of Mr Speakman and of the primary applicant repeatedly emphasised an intention to call additional witnesses. The Tribunal’s correspondence was also inconsistent in parts – in its initial invitation it said the applicants could provide additional witness evidence 7 days prior to hearing, subsequent invitations said within 7 days of receipt. Further, the Tribunal agreed to Mr Speakman’s request of 29 March 2017 to effectively reserve the applicants’ rights to call additional witnesses at some later stage and not less than a week prior to the hearing. It may be acknowledged that the first absolute request was made just one day prior to the hearing, wherein the primary applicant communicated to the Tribunal directly and expressly stated her definite intention to call her husband and daughter to give telephone evidence and asked for guidance about the process. There is no record before the Court in this matter of any response from the Tribunal to that request.
The role of Mr Speakman attracted some focus in the first respondent’s submissions in that they sought to downplay or have the Court disregard his communications after 21 June 2017. That is the day when Mr Speakman first advised the Tribunal he no longer acted for the applicants. However, as will be apparent from the above, in the period 21 June 2017 to 3 July 2017, Mr Speakman continued to engage with the Tribunal on behalf of the applicants including by providing information and making requests and the Tribunal continued to engage with him in response. Given the nature of the communications that had in fact occurred between Mr Speakman and the Tribunal in the intervening period, in my opinion, the primary applicant’s 3 July 2017 email may be taken as requesting that going forward the Tribunal deal only with her but did not constitute a withdrawal of Mr Speakman’s requests or communications in the intervening period. Mr Speakman reiterated as much the following day on 4 July 2017 where, for the first time, he asked the Tribunal to stop engaging with him and to communicate with the applicant in the future but did not seek to withdraw any communications made in the interim.
Also relevant to this assessment is that the primary applicant required the assistance of an interpreter at the Tribunal hearing and so her comprehension of the communications and procedure may well have been challenged. The day before the hearing she had sought guidance on how to go about calling her husband and daughter to give telephone evidence and there is no record of any response from the Tribunal. By the transcript of the Tribunal hearing of 4 July 2017, the primary applicant did not agitate this request again at hearing. The transcript disclosed that the Tribunal member essentially lead the hearing by asking a series of questions and at times moving things on. In all of the circumstances including as a recently self-represented applicant on that occasion and the close proximity to her request made just the day prior with no response from the Tribunal, I do not consider it determinative that the primary applicant did not raise the request to call her witnesses to give telephone evidence again at the Tribunal hearing.
Against this backdrop, it is in my view legally unreasonable that the Tribunal would not allow her plain request to call additional witnesses without reasons and then proceed to make adverse findings as to the lack of detail in their relevant witness statements (which could have been tested or developed orally).
In my opinion, in the particular circumstances of this case, the result was material in the sense that there is a realistic possibility that the decision maker could have made a different decision were it not for the error: Hossain v Minister for Immigration and Border Protections [2018] HCA 34 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3. That is particularly so given at least the husband and daughter could give direct evidence about relevant matters to which the applicant was not present. It is more than at least conceivable that the additional witnesses proposed by the primary applicant, namely the husband and daughter, could have given evidence that would have altered the Tribunal’s conclusions.
It was legally unreasonable for the Tribunal to proceed in this way. By proceeding as it did, the Tribunal acted so unreasonably as to result in an injustice and I find this was legally unreasonable in the sense described by the authorities.
Ground 3 therefore succeeds. In light of this conclusion, it is unnecessary to determine the remaining grounds and I decline to do so.
CONCLUSION
For the above reasons, the application for judicial review is allowed. I will order accordingly and that the First Respondent pay the Applicants’ costs fixed in the amount of $8,987.35.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 4 December 2023
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