CLT15 v Minister for Immigration
[2016] FCCA 621
•24 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLT15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 621 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – extension of time application – whether it is arguable that the Tribunal made a jurisdictional error by failing to have regard to a particular letter – whether it is arguable that the Tribunal made a jurisdictional error by failing to consider certain alleged integers of the claim that were said to have emerged from the materials – whether it is arguable that the Tribunal failed to comply with s.424A of the Act by failing to put to the applicant an observation that the Tribunal made at the hearing. |
| Legislation: Migration Act 1958 ss.5, 36(2A), 424A(1), 477(1), 477(2) |
| Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; (2004) 219 ALR 27; [2004] FCAFC 263 |
| Applicant: | CLT15, BY HIS LITIGATION GUARDIAN, MZAEO |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2848 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 23 February 2016 |
| Date of last submission: | 23 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2016 |
REPRESENTATION
| Counsel for the applicant: | Matthew Albert |
| Solicitors for the applicant: | Victoria Legal Aid |
| Counsel for the first respondent: | Liam Brown |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The application for an extension of time filed on 23 November 2015, amended on 8 February 2016 and further amended on 23 February 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding, fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2848 of 2015
| CLT15, BY HIS LITIGATION GUARDIAN, MZAEO |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for an extension of time in which to file an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a protection (Class XA) visa.
The applicant is two and half years old. He was born in Australia on 24 August 2013. He is a citizen of Lebanon, as the result of being the child of a man with Lebanese citizenship. The applicant’s mother is a citizen of Jordan and is not a citizen of Lebanon. The applicant’s mother, who was given the name MZAEO in a related proceeding, is the applicant’s litigation guardian.
Prior to and separately from the applicant’s protection visa application, the applicant’s parents and older sister applied for protection visas. A delegate of the first respondent refused those applications. The Tribunal affirmed the refusals. The applicant’s parents and sister sought review in this court. The court found that the Tribunal had made jurisdictional errors and remitted the matter to the Tribunal in MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620.
Extension of time application
The Tribunal’s decision was made on 18 September 2015. Under s.477(1) of the Migration Act 1958 (“the Act”), any application to this court is to be filed within 35 days of the date of the Tribunal’s decision. The application to this court was not filed until 23 November 2015. Consequently, the application was 31 days late.
Under s.477(2) of the Act, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so. In considering whether to grant an extension of time, the court must consider:
a)the adequacy of any explanation for the delay;
b)any prejudice to the Minister arising from granting an extension of time; and
c)the merits of the substantive application.
The Minister conceded that he would suffer no prejudice as a result of an extension of time being granted, and made no submissions about the adequacy of the explanation for the delay. However, the Minister opposed an extension of time being granted on the basis that the substantive application did not have sufficient prospects of success.
The applicant explained the delay in his application on the basis that he had:
a)ongoing health and accommodation concerns;
b)a lack of understanding of the legal process; and
c)a lack of legal assistance.
I consider that those grounds adequately explain the relatively short delay in filing the application in this matter. Therefore, the question falls to be determined on the basis of the prospects of success of the substantive application.
This matter was listed for hearing on 22 December 2015, with MZAEN. However, for one reason or another, it could not be heard with MZAEN on that day. Inadvertently, this matter was adjourned for final hearing, rather than an extension of time hearing, on 23 February 2016.
In any event, as the following discussion shows, there is not sufficient merit in the substantive application to grant an extension of time in this case.
The applicant’s claims
In his application for a protection visa, the applicant said the following, in answer to various questions on the form:
45. I fear that if I return to Lebanon my grandparents will seek my custody and deprive me of the right to a family life. My parents have previously applied for a protection visa, however I was not included in that application having not yet been born.
My grandparents have threatened my parents that they would be seeking custody of me on the basis that they do not approve of my parents (sic) marriage.
Under Lebanese law religious courts have exclusive jurisdiction in family law matters and they are likely to make an adverse finding against my parents in favour of my grandparents. Such laws are discriminatory against women.
46. My grandparents will seek to gain custody and therefor (sic) deprive [me] of the right to a family life.
47. My grandparents to (sic) not approve of my parents (sic) marriage and are bitterly antagonistic towards my mother who is of Palestinian ethnicity.
48. The authorities of my country will not be able to protect me as there are no civil laws pertaining to custody issues. Jurisdiction is (sic) family law matters is wholly conferred upon religious courts which usually make adverse findings against women.
However, in the applicant’s submissions to this court, he said that his claims changed substantially between the making of the protection visa application, the delegate’s decision and the Tribunal’s decision. Essentially, the applicant ultimately claimed that he was at risk of certain sorts of harm because his father had been violent to his mother and their relationship had broken down. It was also alleged that the applicant’s relatives believed that the applicant’s younger brother was the result of an extramarital affair engaged in by the applicant’s mother, and that she may be the victim of an honour killing.
The Tribunal’s reasons
The Tribunal accepted that the applicant’s father had been violent towards his mother but considered that they were likely to remain married. However, the Tribunal considered that if there were a resumption of family violence, the applicant’s parents might divorce.
The Tribunal considered that, if the applicant’s parents did divorce, the applicant was likely to live with his father in Lebanon. However, the Tribunal considered that the applicant’s mother would be able to obtain Lebanese nationality by marriage, and would be able to have contact with her children, including the applicant, in Lebanon.
For reasons that it gave, the Tribunal did not accept that the applicant’s mother would be harmed by the applicant’s father’s relatives for any reason.
The Tribunal said at paragraphs 76 and 77 of its reasons for decision:
76. The applicant, who only turned 2 in August 2015, may initially be distressed that his mother is no longer his primary carer. However, having carefully assessed the evidence of the applicant's parents and having observed the interactions between the applicant and his father, the Tribunal finds that [the applicant’s father] (and his family) will look after the applicant to the best of his abilities and that the applicant will not suffer any physical or psychological harm.
77.On the totality of the evidence, the Tribunal finds that giving custody to the applicant's father or his relatives will not cause the applicant to suffer harm that amounts to serious harm or significant harm.
Ground 1
The first ground of review in the application filed on 23 November 2015, amended on 8 February 2016 and further amended on
23 February 2016 is:
The Tribunal miscarried in its statutory task, namely by failing to form for itself, on the material before it, the requisite state of satisfaction under s 65 of the Migration Act 1958 (Cth) in that it had no regard at all to the letter from Stay in Touch (a multicultural service against domestic violence).
The letter from Stay in Touch was sent to the Tribunal on 4 September 2015. The applicant noted specifically that it was provided in response to a request from the Tribunal and said the following, among other things:
Client is very fearful and concerns her life. She reported to us that she fears going back to Jordan, she knows for sure that she will lose her children and loose her life. She receives daily calls from her father and father in law asking her to return back to Jordan. They also tried to force her husband to send her back but she refused.
Client reported that they sound very angry on the phone, abuse her verbally and made threats to kill her. Her mother told her that her father and oldest brother made plan to kill her when she comes back to Jordan. They believe the in laws story and do not believe hers. They believe she shamed them and damaged the family name and reputation forever. Honour killing in Jordan is very common, and there is no effective laws to protect women or charge perpetrators. Client reported that her female cousin had been killed by her family for the same reason, only 2 years ago. (errors in original)
The applicant said that the Tribunal failed to consider the letter from Stay in Touch, even though it contained entirely new information about the risk to the applicant of psychological harm contingent upon his mother being harmed. The risk to the applicant of psychological harm was not an express claim. However, the applicant argued that it was a claim that arose from the materials.
The applicant relied firstly on the decision of Rares J in Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153; (2008) 107 ALD 474; [2008] FCA 1758 at [106] as follows:
A decision-maker must give proper, genuine and realistic consideration to the merits of the case… In Tickner v Chapman[1995] FCA 1726; (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter… (citations omitted)
The applicant also relied upon the decision of the Full Federal Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; (2013) 136 ALD 547; [2013] FCAFC 114, at [44], [49] and [50] as follows:
44.… what is also absent from the Tribunal’s reasons is any evaluation of the situation in Zimbabwe at the time of its decision. The absence of any such evaluation in the face of what the visa applicant and his adviser submitted, and in the context of the Tribunal’s statutory task, can only signify a constructive failure to exercise jurisdiction.
…
49.The court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].
50.We do not accept the Minister’s submission. The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
In relation to the first respondent’s argument that the Tribunal dealt with the Stay in Touch letter with findings of greater generality or because the factual premise on which the contention rested had been rejected, the applicant noted that Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 was decided in 2003 and submitted that it had been overtaken by the decision of the Full Federal Court in Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105. Paragraphs 64 and 65 of CZBP said:
[64] The Minister submitted that unlike Minister for Immigration and Border Protection v SZSRS[2014] FCAFC 16; (2014) 309 ALR 67 (SZSRS), Minister for Immigration and Citizenship v SZRKT[2013] FCA 317; (2013) 212 FCR 99 (SZRKT), and Minister for Immigration and Border Protection v MZYTS[2013] FCAFC 114; (2013) 136 ALD 547 (MZYTS), this was not a case where the Tribunal overlooked a document or claim in the sense that it was not conscious of it or did not consider it at all. Indeed, consideration of the email and information gleaned from the Amnesty International report were a part of the Tribunal’s reasons for rejecting the visa applicant’s claims. In those circumstances, the primary judge’s reliance on SZRKT and SZSRS was misplaced. His Honour’s real concern was different from the errors found in those cases. It was that the Tribunal did not weigh the contents of the documents (which the primary judge thought corroborated the visa applicant’s claims) against the matters that the Tribunal relied on to reject the claims. In other words, the real concern was that the Tribunal did not give proper consideration to the email or the report. Once this was revealed as the primary judge’s true concern, two difficulties with his Honour’s reasons became apparent. First, the Tribunal gave its reasons for rejecting the visa applicant’s factual claims. The fact that the reasons did not include any evaluation of the email in the way the primary judge thought they should have did not mean that it was overlooked: s 430 did not require a line-by-line refutation of all the evidence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 (Durairajasingham). Secondly, the concept of “proper” consideration, as with “proper, realistic and genuine” consideration could easily lead the court into a review of the merits of a decision: Minister for Immigration and Citizenship v SZJSS[2010] HCA 48; (2010) 243 CLR 164 (SZJSS), citing Swift v SAS Trustee Corporation[2010] NSWCA 182 at [45]; Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts[2009] FCA 330; (2009) 165 LGERA 203 at [37] per Tracey J. That, the Minister submitted, was the error into which the primary judge fell. This was not a case where the Tribunal ignored relevant information that corroborated a central part of the applicant’s case. There was no jurisdictional error and the primary judge was wrong to find otherwise.
[65] The visa applicant submitted that the argument advanced in the Minister’s submissions must fail. The Minister sought to distinguish SZSRS at [55]–[56]; SZRKT at [113]; and MZYTS at [49]–[50] on the basis that, in those cases, the Tribunal overlooked a document or claim in the sense that it was not conscious of it or did not consider it at all. In this way, the Minister’s submissions set up a false dichotomy between whether evidence or a claim was “considered” or whether it was “overlooked”. That argument did not grapple with the ratio of the cases. The cases revealed that the proper inquiry was whether the evidence or claims were addressed in the Tribunal’s decision-making process. So, SZRKT spoke of a failure to “deal with” claims or evidence: at [111]. A Tribunal may be conscious of evidence or a submission but not “deal with” it. Likewise, in MZYTS, the court focused upon whether the Tribunal had “miscarried” in its statutory “task”, namely to form for itself, on the material before it, the requisite state of satisfaction under s 65 of the Act: at [31]–[36]. Again, the focus was on the formation of the state of satisfaction. So too in SZSRS, the court was also concerned with whether a claim or evidence had been “dealt with”: at [56]. The Court emphasised that the critical consideration is “the Tribunal’s decision making process”: at [56]. Importantly, that process could miscarry where important evidence was “ignored” in the course of the Tribunal's “decision-making”: at [54]. Properly understood, that was what occurred in this case. The Tribunal may have been conscious of the contents of the email and the Amnesty International report, but they were ignored in its decision-making process. The primary judge’s reasoning was consistent with these authorities. At [123], his Honour noted the absence of any evaluation of the contents of the email, and correctly emphasised its importance to the Tribunal’s decision-making task. Likewise, at [124], his Honour identified the absence of any evaluation of the Amnesty International report. The correctness of that reasoning was further strengthened by reason of the additional failures identified in the visa applicant’s submissions in relation to ground 1.
The first respondent argued, firstly, that the Tribunal did not need to deal expressly with the Stay in Touch letter because it made findings that obviated the need to. The first respondent noted that the Stay in Touch letter relevantly focussed on what would happen to the applicant’s mother if she returned to Jordan. However, the first respondent noted that the Tribunal found at paragraphs 72 and 73 of its reasons for decision that:
a)the applicant’s mother would obtain a Lebanese passport so that she would be able to be with her children in Lebanon; and
b)she was not at risk of being sent to her family to Jordan who may harm her because they believed that she had a child with a man other than her husband.
It is at least implicit in those findings that the applicant’s mother would not go to Jordan. Clearly, if she had a right to be in Lebanon, and she genuinely believed that she would be the victim of an honour killing in Jordan, she would not go there. That being so, the claims made in the Stay in Touch letter fell by the wayside.
In the alternative, the first respondent said that the Stay in Touch letter was not centrally relevant to the Tribunal’s decision because it was just repeating claims that the mother had made in oral evidence a couple of weeks earlier. The first respondent said that the claims in the Stay in Touch letter were perhaps more detailed than had been made elsewhere, but they to were to the same effect as claims recorded at paragraphs 31 and 73 of the Tribunal’s reasons for decision.
Paragraph 31 of the Tribunal’s reasons for decision records the claim that the applicant’s paternal uncle had threatened to call the applicant’s maternal relatives in Jordan to tell them that the applicant’s mother was pregnant with another man’s child and that the applicant’s mother’s relatives could harm her in an honour killing. That is significantly different from the claim made in the Stay in Touch letter. The Stay in Touch letter said that the applicant’s maternal grandmother had told the applicant’s mother that the applicant’s maternal grandfather and maternal uncle planned to kill the applicant’s mother when she returned to Jordan. That is, according to what the applicant’s mother told the social worker at Stay in Touch:
a)the situation had passed the point of the paternal uncle threatening to tell the maternal family about the alleged affair; and
b)the maternal family knew about the alleged affair and had formulated a plan to kill the applicant’s mother in Jordan.
However, the Tribunal was well aware of that claim. It found at paragraph 73 of its reasons for decision that the applicant’s mother:
can “return” to Lebanon and she is not at risk of being “sent” to her relatives in Jordan who may harm her because they believe that [X] (the couple’s third child) is from another man.
The Tribunal recorded its awareness in paragraph 31 of its reasons for decision that the harm that may befall the applicant’s mother in Jordan was an honour killing. However, the Tribunal found, at least implicitly, at paragraphs 72 to 74 of its reasons for decision, that, if the applicant’s mother had to leave Australia, she would go to Lebanon rather than Jordan.
The Tribunal did not need to “weigh up” the Stay in Touch letter, or give reasons for preferring other evidence to it, because it understood the claims made in the Stay in Touch letter and made findings that addressed those claims. The Tribunal did not need to expressly refer to the Stay in Touch letter because it dealt with the matters leave raised. The Tribunal did not need to consider whether the applicant might suffer psychological harm from his mother being the victim of an honour killing in Jordan, because it did not accept that the applicant’s mother might be the victim of an honour killing in Jordan.
I am not persuaded that it is arguable that there was any jurisdictional error in the Tribunal’s handling of the Stay in Touch letter.
Ground 2
The second ground of review in the application filed on 23 November 2015, amended on 8 February 2016 and further amended on
23 February 2016 is:
The Tribunal erred by failing to consider two integers of the Applicant’s claim, namely:
i.that he was at real risk of serious or significant harm in Lebanon because his mother would be the subject of so-called ‘honour killing’; and/or
ii.he would be at real risk of significant harm because he would be witness to violence by his father against his mother.
To the extent that this ground alleges a risk of persecution, the applicant said that he was a member of a particular social group consisting of the children of women who may be the victims of honour killings.
The applicant relied on the well known passage from Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; (2003) 197 ALR 389; (2003) 77 ALJR 1088; (2003) 24(9) Leg Rep 11; [2003] HCA 26 at [24] that the Tribunal is required to respond to “a substantial clearly articulated argument relying upon established facts”. However, the applicant conceded that he had not clearly articulated the two integers set out in this ground.
Obviously, however, it is enough that the claims arose clearly from the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; (2004) 219 ALR 27; [2004] FCAFC 263 at [60]. The first respondent argued that the claims of harm to the applicant because:
a)his mother might be the victim of an honour killing in Lebanon; or
b)he might witness domestic violence,
did not clearly arise from the materials.
The Tribunal said at paragraph 75 of its reasons for decision:
The Tribunal accepts that some of [the applicant’s father’s] relatives dislike [the applicant’s mother], because she is half-Palestinian and a divorcee. However, she is also related to the applicant’s father. They are first cousins. The Tribunal finds that the applicant’s parents have exaggerated the level of animosity by [the applicant’s father’s] relatives towards [the applicant’s mother]. [The applicant’s father] acknowledged in his evidence that [the applicant’s mother] speaks to [the applicant’s father’s brother], even though he is alleged to be the person she fears the most. On the evidence before it, the Tribunal finds that [the applicant’s mother] will not be harmed by [the applicant’s father’s] relatives, because she is of Palestinian ethnicity, because she is a divorced woman, because she is believed to have become pregnant with [X] to another man or for any other reason.
The Tribunal clearly considered and rejected the claim that the applicant’s mother faced harm at the hands of the applicant’s father’s family. The applicant explained to the court during the hearing that there were repeated references in the material to the applicant’s father’s family all being in Lebanon (Transcript page 24). However, the situation is somewhat clouded by the fact that the applicant’s parents are first cousins, and thus, there is some cross over of the applicant’s maternal and paternal families.
This claim was said to have arisen from the materials because a letter from the Red Cross to the Tribunal said the following:
[The applicant’s mother] informed me that if she or the children returned to Jordan or Lebanon, the male relatives in [the applicant’s father’s] family would arrange for [the two older children] to be taken from her into [the applicant’s father’s] family and [she] would be ‘handed over’ to her family who would most certainly kill her.
On its proper interpretation, this paragraph means that the male members of the applicant’s father’s family would hand over the applicant’s mother to her family, who would kill her. However, the Tribunal expressly found at paragraph 75 of its reasons for decision that the applicant’s father’s family would not harm her. This finding encompasses the idea of the applicant’s mother being handed over to her family for the purposes of them murdering her.
Additionally, as discussed above, the Tribunal found that the applicant’s mother would not be sent back to Jordan. The applicant did not point to any evidence that the applicant’s mother’s family could move to Lebanon. It was suggested by counsel for the applicant from the bar table that the applicant’s mother’s family could move to Lebanon, just as the applicant’s mother had. However, it is difficult to see how the possibility of the applicant’s mother’s family moving to Lebanon for the purposes of an honour killing emerges from the materials. The applicant’s mother may have been able to move more readily to Lebanon than the other members of her family because she is married to a Lebanese national. In any event, it seems to me that it is not arguable that the alleged claim emerges sufficiently clearly from the materials for the Tribunal to have been required to deal with it.
The first respondent did not accept that the harm the applicant might suffer from his mother being the subject of an honour killing was self-evidently serious or significant harm, and submitted that there was no evidence about how the harm might manifest.
Be that as it may, it seems to me that the Tribunal dealt with the prospect of the applicant suffering psychological harm because his mother might be killed by making the findings outlined above that were inconsistent with the applicant’s mother being the victim of an honour killing. It does not seem to me to be arguable that the Tribunal made a jurisdictional error in respect of the first integer in this ground.
In relation to the second integer, there was evidence before the Tribunal that the applicant, at the age of three months, was woken by, and cried because of, domestic violence between his parents. The Tribunal accepted that there had been domestic violence perpetrated by the applicant’s father against the applicant’s mother. The Tribunal also considered that the applicant’s parents were likely to remain married, but that, if there were a resumption of family violence, they would probably divorce. On these findings, there was a possibility that the applicant would be exposed to domestic violence.
There is a considerable body of social science research to the effect that being exposed to domestic violence is harmful to children. However, that research was not before the Tribunal and I do not accept that it is of such common knowledge that harm to a child from exposure to domestic violence could be regarded as an issue that clearly arose on the materials. Certainly, in this court’s family law jurisdiction, it comes as a surprise to many perpetrators of family violence that their actions might be harmful to their children.
Moreover, the first respondent argued that significant harm, as defined in the Act, did not arise in the present case. The first respondent noted that significant harm is defined in s.36(2A) of the Act. Of the various options, the first respondent argued, and I accept, that only cruel or inhuman treatment or punishment could have any application in the present case. That is defined in s.5 of the Act to mean pain or suffering that is intentionally inflicted on a person.
The first respondent noted that there was no suggestion in this case that the applicant’s father intended to inflict pain or suffering on the applicant, as opposed to his mother. Consequently, this is not a case that falls within the definition of significant harm. It cannot be assumed that the applicant’s father, in perpetrating domestic violence against the applicant’s mother, intended to inflict pain or suffering on the applicant. Nor was it incumbent on the Tribunal to perceive and deal with a claim to that effect. It was not a claim that emerged clearly from the materials.
In these circumstances, the first applicant submitted that the case did not rise to the level necessary for the Tribunal to be required to consider the prospect of the applicant suffering psychological harm by reason of exposure to his parents’ domestic violence.
I accept that submission. It does not seem to me to be arguable that the alleged claim emerged sufficiently clearly from the materials to require the Tribunal to deal with it.
Ground 3
The third ground of review in the application filed on 23 November 2015 and amended on 8 February 2016 is:
The Tribunal erred by acting in breach of its obligations under s 424A of the Act in that ‘the reason, or part of the reason, for affirming the decision that is under review’ was that the Applicant’s father ‘appeared to be caring [when] the applicant was asleep in his father’s arms’ during the hearing and the Applicant had no opportunity to respond to that fact being the basis for an inference made by the Tribunal on the risk of harm to him.
This ground arises from a passage at paragraph 59 of the Tribunal’s reasons for decision when the Tribunal was summarising the evidence given by the applicant’s mother. The Tribunal said:
at that time, the applicant was asleep in his father’s arms and [the applicant’s father] appeared to be a caring father.
The Tribunal evidently relied on this observation when making the findings in paragraphs 76 and 77 of its reasons for decision as follows:
76.The applicant, who only turned 2 in August 2015, may initially be distressed that his mother is no longer his primary carer. However, having carefully assessed the evidence of the applicant's parents and having observed the interactions between the applicant and his father, the Tribunal finds that [the applicant’s father] (and his family) will look after the applicant to the best of his abilities and that the applicant will not suffer any physical or psychological harm.
77.On the totality of the evidence, the Tribunal finds that giving custody to the applicant's father or his relatives will not cause the applicant to suffer harm that amounts to serious harm or significant harm.
The applicant submitted that the Tribunal breached s.424A of the Act because it did not put to the applicant the information that the applicant’s father appeared during the hearing to be a caring father.
The first respondent said that was an observation, not information as defined in the Act, and the Tribunal was under no obligation to put it to the applicant.
Subsection 424A(1) of the Act provides that:
Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
There is a substantial body of authority on the meaning of the word “information” as it appears in s.424A of the Act. For present purposes, it is sufficient to note that the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; (2007) 96 ALD 1; (2007) 235 ALR 609; [2007] HCA 26 at [18] adopted with approval what was said by the Full Federal Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 that “information”:
does not encompass the tribunal’s subjective appraisals … .
The Tribunal’s observation in the present case that the applicant’s father was “a caring father” was clearly a subjective appraisal. Consequently, the Tribunal was under no obligation to put it to the applicant.
It should also be noted that the applicant, or, perhaps, more relevantly, his litigation guardian, was present when the Tribunal observed the applicant sleeping in his father’s arms. The applicant’s litigation guardian was able to witness precisely the same events as the Tribunal did. This is not a case of the Tribunal seeing something that the applicant, or his litigation guardian, was not able to observe as well.
It should also be noted that the obligations on the Tribunal are not the same as the obligations on a court. It may well be the case that a court could not have proceeded as the Tribunal did on this issue.
In any event, for the reasons discussed, I do not consider that this ground is arguable.
Conclusion
As none of the applicant’s grounds is arguable, I consider that it would not be in the interests of the administration of justice to grant an extension of time in this case. Consequently, the application for an extension of time will be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 24 March 2016
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