COG18 v Minister for Home Affairs
[2019] FCCA 1092
•1 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COG18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1092 |
| Catchwords: MIGRATION – Protection visa – Whether Tribunal’s decision lacked substantive analysis – whether failure to provide substantive reasons amounts to jurisdictional error – Invitation to respond to request for information – no response within prescribed period – whether extension of time provided valid given that no response received within time – whether email from applicant seeking assistance a “response” or “comment” to the Invitation – whether any response or comment received on time – whether Tribunal erred by proceeding to hearing without allowing applicant to attend – whether Tribunal acted unreasonably by proceeding without allowing the applicant to provide written submissions – no jurisdictional error – appeal dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 65, 98, 101, 359A, 359B, 359C, 360, 414, 423, 424A, 424B, 424C, 425, 426A, 430, 494C, 499 Migration Regulations 1994 (Cth), reg.4.35 |
| Cases cited: Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142 |
| Applicant: | COG18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 262 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 20 March 2019 |
| Date of Last Submission: | 20 March 2019 |
| Delivered at: | Perth |
| Delivered on: | 1 May 2019 |
REPRESENTATION
| For the Applicant: | In person with the assistance of an interpreter |
| Counsel for the First Respondent: | Mr A Gerrard |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for judicial review be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 262 of 2018
| COG18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 19 April 2018.
The Tribunal’s decision affirmed a decision of a delegate of the then Minister for Immigration and Border Protection, now the Minister for Home Affairs (the “Minister”), made on 21 March 2017 to refuse to grant the applicant a Protection visa (the “visa”) under s.65 of the Migration Act 1958 (Cth) (the “Act”).
The Court has received, and reviewed, a Court Book (“CB”) numbering 96 pages. On 5 March 2019, the Court received written submissions from the Minister. The matter came on for hearing on 20 March 2019. The applicant appeared in person with the assistance of an interpreter. Mr Gerrard appeared on behalf of the Minister.
The Court thanks the interpreter and Mr Gerrard for their assistance.
Background
The applicant is a young Malaysian male. He arrived in Australia on 12 August 2016. At that time, he had a visitor visa (CB 21).
On 8 November 2016, the applicant lodged an application for a protection visa.
Relevant to these proceedings, the applicant indicated on his application that he had not been given any assistance completing his visa application (CB 10). This is discussed further below.
The applicant made the following protection claims, which were handwritten on his protection visa application:
a)he is a Shia Muslim and the government are banning Shia activities so he cannot practice his religion freely and will face trial under Sharia Law and be imprisoned (CB 32);
b)he has not previously been harmed in Malaysia but does not think there is any safe place in Malaysia “for what I believe” (CB 33); and
c)he will be harmed if he returns to Malaysia, both physically and mentally, by the authorities and government because they are Sunni, and by other Sunni people generally, as they do not like Shias (CB 34).
On 21 March 2017, a Ministerial delegate refused the applicant the protection visa. Nine pages of the delegate’s decision referred to country information concerning religious practice and state protection in Malaysia. The most recent of those sources was dated August 2016 (CB 46-55). The final two pages of the delegate’s decision provided an analysis of the applicant’s claims and a finding that he did not meet the criterion of s.36(2)(a) and (aa) of the Act (CB 56-57).
On 23 March 2017, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 63-64).
By email dated 23 March 2018, the Tribunal invited the applicant to:
…comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
(CB 72) (the “Invitation”)
The Invitation relevantly went on to provide the following particulars (CB 72-73):
…
In assessing your Application for a Protection visa (Form 866C) the Tribunal notes that you declared that you did not receive any assistance in the completion of the form.
The Tribunal also notes that you have signed the form and declared that the information supplied is complete and correct and up-to-date in every detail.
In assessing your claims the Tribunal has become aware that your answers to question 89 to 96 are worded in a manner that is substantially the same as the answers provided by another Malaysian asylum seeker resident at the same address and whose claims are also currently before the Tribunal.
Specifically, the Tribunal has identified the following claims in the other Malaysian protection visa application form which are substantially identical to your claims:
Question 89 Why did you leave that country(s)?
I am practicing Shiah Muslim religion. Malaysia is a Sunni led government and banning all Shiah activities in the country. Practicing Shiah is violate Islamic law. I don’t have freedom in practicing my religion
Question 90 What do you think will happened to you if you return to that country(s)?
If I get caught by authorities, I will face Shariah Law and I will be imprison.
Question 91 Did you experienced harm in that country(s)?
No.
Question 92 Did you seek help within the country after the harm?
{No response}.
Question 93 Did you move, or try to move, to another part of that country(s) to seek safety?
No.
Give reasons why you did not try to move to another part of the country(s)
I don’t have any safe place to go.
Question 94 Do you think you will be harmed or mistreated if you return to that country(s)?
Yes. Authorities will mistreat me, I’ll put under Shariah law by them. Majority of Sunni also doesn’t like us, they hate Syiah people.
Question 95 Do you think the authorities of that country(s) can and will protect you if you go back?
No. Authorities will not protect us! They all under Sunni government.
Question 96 Do you think you would be able to relocate within that country(s)?
No. Unable to find safe place.
This information is relevant because the answers you have provided are substantially identical as another Malaysian protection visa application lodged by an applicant resident at the same address. This would, subject to any comments that you wish to make in response, lead to the conclusion that your claims for protection are not genuinely held by you.
…
(Without alteration)
While not verbatim, the applicant’s visa application was, in substance, the same as that which the Tribunal had reproduced in the Invitation.
The Invitation provided the applicant until 6 April 2018 to comment or respond to the Invitation. It concluded with:
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
(Emphasis in original)
On 13 April 2018, the applicant emailed the Tribunal. He wrote (CB 75):
I’m just read this email because I’m just recover again my email for this one. What should I do to settle about this problem. I’m really appreciate if you can do something about this.
On 16 April 2018, the Tribunal responded to the applicant as follows (“Second Invitation”)(CB 76):
Please refer to the letter dated 23 March 2018. As no response has been received to the information we provided to you by the deadline of 6 April 2018, the Tribunal is currently considering your application for review on the basis of the information before it. If you wish to respond to the information provided to you in the letter of 23 March 2018, you are advised to provide a written response by close of business on Tuesday, 17 April 2018.
(Emphasis in original)
The applicant did not respond to the Second Invitation of 16 April 2018 – that is, he did not provide any further information by 17 April 2018.
On 19 April 2018 the Tribunal, without seeking further information from the applicant, affirmed the delegate’s decision not to grant the applicant the protection visa.
Tribunal Decision
Given the nature of the visa sought and the complexity of the law in relation to protection claims, the Tribunal’s decision is unusually brief. It spans only 33 paragraphs. The Court has concerns in this regard which it addresses further below.
Prior to the Tribunal considering the information before it and the relevant refugee criterion, the Tribunal:
a)noted that the delegate had refused to grant the visa because country information suggested that any discrimination or harassment experienced by Shia Muslims in Malaysia for the essential and significant reason of their Shia Muslim beliefs does not rise to the level that would give rise to an objectively well-founded fear of persecution if the applicant were to be returned to Malaysia now or in the reasonably foreseeable future, and that the Malaysian state would be willing and able to provide adequate protection to the applicant in his particular circumstances (CB 84 at [6]); .
b)noted that the delegate further found that the applicant outlined his situation in minimal detail and with no supporting evidence (CB 84 at [6]);
c)had regard to the most recent Department of Foreign Affairs and Trade (“DFAT”) country report (dated 19 April 2018) and found that the delegate’s summary of country information relevant to the applicant’s claims for protection was “pertinent and appropriate to the applicant’s claims for protection, and accurately summarises the available country information” (CB 84 at [7]);
d)set out in full the Invitation – or what it said was the Invitation, and the other correspondence this Court has noted above at [11]-[12] (CB 84-85 at [8]-[10]); and
e)noted that there had been no response to the Second Invitation and that the Tribunal had proceeded to determine the application without taking further action to obtain the applicant’s view pursuant to s.424C(2) of the Act (CB 85 at [11]).
In the “Consideration of Claims and Evidence” portion of the Tribunal’s decision, the Tribunal:
a)adopted the delegate’s summary of the applicant’s claims for protection as follows:
• He is a practicing Shia Muslim and the government is banning Shia activities in the country.
• He can’t practice his religion.
• He will face trial under Sharia law.
• He fears physical and mental harm from Sunni Muslims and the authorities.
b)found that the delegate’s summary of the applicant’s claims was “fair and accurate” (CB 86 at [14]-[15]);
c)noted that on his visa application form the applicant had declared that the information he had provided was complete and up to date (and then referred to ss.98 and 101 of the Act). Both provisions concern obligations on a person applying for a visa, including the requirement that no incorrect answers be given (CB 86 at [16]-[17]);
d)noted that the Tribunal had notified the applicant that his answers to question 89-96 in his visa application form are worded in a manner that is essentially identical to the answers provided by other Malaysian asylum seekers residing at the same address as the applicant and whose claims were also currently before the Tribunal (CB 86 at [18]);
e)noted that that this was relevant because, given that the answers the applicant provided were substantially identical other Malaysian protection visa applications lodged by applicants residing at the same address as the applicant, it raised the question of whether his claims for protection are genuinely held by him (CB 86 at [19]);
f)explained that this would, subject to any comments that the applicant might wish to make in response, lead the Tribunal to conclude that his claims for protection are not genuinely held by the applicant (CB 86 at [19]);
g)noted that if the Tribunal makes findings that an applicant’s claims are not credible, that may lead to the conclusion that the Tribunal does not believe the applicant had a genuinely subjective fear of harm (CB 86 at [19]);
h)citing judicial authority, noted that, if that occurred, there would be no need for the Tribunal to proceed any further (CB 86-87 at [20]);
i)considered that the applicant’s failure to address the concerns in the Invitation reflected adversely on the applicant’s claims for protection, and concurred with the delegate’s finding that the inadequate explanation and detail in the applicant’s claims reflected poorly on his credibility (CB 87 at [21]-[22]);
j)therefore found that the applicant does not subjectively hold a genuinely well-founded fear of persecution in Malaysia, now or in the reasonably foreseeable future for the essential and significant reason of his Shia Muslim beliefs, or for any other reason, if the applicant were to be returned to Malaysia now or in the reasonably foreseeable future (CB 87 at [23]);
k)further found, on the basis of available country information, including that which was surveyed by the delegate in their record of decision, that the Malaysian state would be willing and able to provide adequate protection to the applicant in his particular circumstances (CB 87 at [24]);
l)on the basis of these considerations, found that, taken at its highest, the applicant’s claims and evidence lack credibility, are vague, incomplete and lack an appropriate level of corroboration, thus they do not reach a level that demonstrates the applicant faces either a real chance of serious harm, or a real risk of significant harm, now or for the foreseeable future, if he were returned to Malaysia (CB 87 at [25]);
m)was not satisfied the applicant met the definition of a refugee under s.5H of the Act (CB 88 at [26]);
n)having considered the applicant’s particular protection claims individually and then cumulatively, then noting its findings that the applicant does not subjectively hold a genuinely well-founded fear of persecution if he were to return to Malaysia now or in the reasonable foreseeable future and the findings relating to the lack of credibility of those claims and the fact that those claims are inconsistent with country information including that surveyed by the delegate in their record of decision, found that the applicant can obtain protection from the Malaysian authorities such that there would not be a real risk he would suffer significant harm for the purposes of s.36(2)(aa) of the Act (CB 88 at [29] and [30]);
o)rejected any complementary protection obligations; and
p)affirmed the delegate’s decision not to grant the applicant the protection visa (CB 88-89 at [33]-[35]).
Judicial Review Application
To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The applicant filed his judicial review application on 16 May 2018. That application contained two grounds of review:
1. THE TRIBUNAL FAILED TO PROPERLY CONSIDER ALL OF MY CLAIMS.
2. THE TRIBUNAL DIDN’T GIVE ME A CHANCE TO COMMENT ON ONE ASPECT OF MY CLAIMS. PARTICULARLY THAT I WAS NOT INTERVIEWED.
(Without alteration)
The Minister submitted that the application should be dismissed on the basis of a failure to particularise the grounds (because they are, in effect, meaningless).
The Court notes that the applicant does not speak English, is legally unrepresented and that this matter relates to a claim for refugee protection.
In light of the decision Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8]-[9] the Court determined that it would be inappropriate to dismiss the application on the basis of a failure to particularise.
Accordingly, the Court took the applicant through the common categories of jurisdictional error, including, but not limited to, circumstances where the Tribunal may have:
a)identified the wrong issue or asked the wrong question;
b)ignored relevant material, such as the applicant’s claims, or relied on irrelevant material;
c)failed to follow mandatory procedures;
d)denied the applicant procedural fairness (in having failed to follow the mandatory procedures under the Act); or
e)acted illogically, irrationally or unreasonably in the exercise of its powers and discretions afforded by the Act.
(Noting: Craig v State of South Australia (1995) 184 CLR 163 at [198]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28] (“Li”); Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44]).
The Court also emphasised to the applicant that the Court could not consider the “merits” of the Tribunal’s decision or, put another way, engage in an impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 136 ALR 481).
The Court then asked the applicant to explain what he believes the Tribunal “did wrong”.
Unfortunately, the applicant was not able to provide much information or detail. All he was really able to say was that that he did not see the email “inviting him to the hearing”.
The Court took the applicant to the relevant pages of the Court Book that revealed that the applicant was not, in fact, “invited to a hearing” before the Tribunal. Rather, he was invited to “respond to information” in an email (the Invitation).
The applicant had nothing further to add.
This lack of engagement with the Court is not unusual in matters of this sort. This applicant would have benefited greatly from some sort of legal assistance. Regrettably, pro bono advocacy is now rather rare in the Western Australia courts. This is despite the best efforts of the Law Society of Western Australia and a few committed barristers and solicitors (senior and junior) to do what they can do to assist unrepresented applicants. The work of these dedicated lawyers is recognised and much appreciated by the Court. Others would do well to emulate their efforts in this regard.
It was apparent that, like many unrepresented applicants, this applicant had little understanding of the visa application processes and even less understanding of the role of this Court in reviewing the Tribunal’s decision.
Judges of this Court do what they can do to assist applicants like the young man appearing here.
The Court notes the decision of Mortimer J in MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 at [100] and [112] wherein Her Honour notes that that judges of this Court should be alert to the possibility of legal error and raise those possibilities with the Minister where necessary.
Although Her Honour noted that the Court ought not to become an advisor or advocate for an unrepresented party, Her Honour stressed (at [113]):
If, in circumstances involving the exercise of a judicial discretion, a court is or should be put on notice, through the evidence and material before it, of an arguable substantive legal error in the decision sought to be reviewed (including denial of procedural fairness by the Tribunal), then the Court has a duty to assist a self-represented person sufficiently to ensure the arguments about that legal error can be properly developed and considered. What that involves in any given case may vary depending on individual circumstances…
Some may argue that this is a “big ask” of a Court with a workload like that seen in the Federal Circuit Court (noting, for example, that the Perth registry of this Court is now listing migration matters into late 2020 and some judges of this Court (nationally) are, on average, hearing 7-10 migration matters a week). That, however, is a “resourcing issue” for the government of the day. It is not (or should not be) an issue of concern to unrepresented, non-English speaking applicants seeking refuge in this country. For judges to provide anything other than a forensic analysis of the materials before the Court risks creating a second tier of applicants – a situation that no federally appointed judicial officer can support.
With the above in mind, the Court raised with counsel for the Minister the following matters that, arguably, give rise to legal error and which, as such, should be incorporated into the broad grounds of review pleaded in the applicant’s application to the Court:
a)with respect to ground 1 and the assertion the Tribunal did not consider all of the applicant’s claims, the Court raised concerns with the brevity of the Tribunal’s decision, the bare adoption of delegate’s decision without much apparent legal or factual analysis and whether the Tribunal had, in fact, “reviewed” the decision (by turning its mind to the applicant’s claims and engaging in an active and analytical engagement with the material before it); and
b)with respect to ground 2, the Minister was asked to make enquiries into the effect of s.424C of the Act and determine whether the Tribunal had acted in accordance with that section in the applicant’s circumstances as, in relying on s.424C of the Act, the Tribunal effectively ensured that the applicant had lost his right to attend a hearing. Pursuant to that section, if a person is invited in writing under s.424A of the Act to give information and does not give the information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information.
Ground 1
Submissions
As indicated above, the applicant had nothing of substance to add in relation to his grounds of review. When asked to comment on ground 1 he simply (and honestly) advised the Court that he did not really understand what ground 1 meant.
The Court discussed its own concerns with ground 1 (as above) with counsel for the Minister.
The following submissions were advanced on the Minister’s behalf:
a)the delegate’s decision (and analysis) was the only substantive material before the Tribunal;
b)the delegate’s analysis was fulsome and the Court should take the Tribunal at its word when it says that it “assessed” that summary;
c)while the Court’s concern in relation to the Tribunal’s decision is fair, it is not fatal to the application when looking at the matter as a whole. This is so because there were very few claims, the only assessment of any substance was the delegate’s (which was a proper, fulsome assessment of the country information) and the Tribunal went on to make an adverse credibility finding on two bases:
i)the paucity of the information that had been submitted by the applicant and his failure to adequately explain it; and
ii)the failure to respond to the Invitation;
d)it cannot be conceded that the reference to the delegate’s decision in this particular matter was not a sufficient basis upon which the Tribunal could base the findings it made;
e)the Tribunal’s approach has to be considered in context. What was before the Tribunal were bald assertions; and
f)the principal reason for the Tribunal not dealing with the applicant’s limited claims more extensively was that the Tribunal had formed an adverse credibility finding on the basis that the claims, limited as they were, were substantially identical to other claims raised by other applicants, that that had been raised with the applicant, and he had failed to respond – therefore leading the Tribunal to find that those claims were not evidence of harm.
The Court thanks Counsel for the Minister, Mr Gerrard, for his assistance in this matter and for addressing the Court’s concerns comprehensively and in a timely manner.
Consideration
The Court has previously expressed concern in relation to the “minimalist” content of some Tribunal decisions, particularly in relation to protection claims: CHM18 v Minister for Immigration & Anor [2019] FCCA 760. The comments made there are echoed here.
The Tribunal has a statutory duty to “review” the delegate’s decision: Act, s.414.
Further, the Tribunal has an obligation to conduct a de-novo review – that is, to form its own conclusion – of the applicant’s protection claims on the material before it.
Section 430 of the Act provides:
430 Tribunal’s decision and written statement
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based;
…
A failure on the part of the Tribunal to satisfy all of the requirements of s.430(1) of the Act does not itself invalidate the decision or amount to jurisdictional error: Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 at [46]-[47] and [85] (“SZLSP”).
As explained in SZLSP (at [53]) (citing Minister for Immigration and Multicultural Affairs v Gutierrez (1999) 92 FCR 296) in relation specifically to s.430(1)(d), the purpose of s 430(1)(d) “is to arm the reader of the decision with an understanding of the steps by which the Tribunal reached its decision”
Further, as explained in Li at [44], one of the purposes of s 430(1)(d) is to expose error.
The Federal Court continued in SZLSP:
92. The Court’s function is, of course, to review decisions for jurisdictional error, and not to review reasons. There may be cases where what appears on the face of the Tribunal’s reasons to be a jurisdictional error is shown by the record before the reviewing court to be merely a failure to comply with s 430. Such a failure does not constitute jurisdictional error. In the case of a failure to comply with s 430, the appropriate course for an aggrieved applicant is to seek an order compelling the Tribunal to comply with its obligations under s 430. The ensuing written statement may or may not reveal jurisdictional error: cf Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 (‘Ex parte Palme’) at 224-25 [41]-[46] per Gleeson CJ, Gummow and Heydon JJ; and Kennedy v Australian Fisheries Management Authority (2009) 182 FCR 411 at 435 [70] per Tracey J.
Overall, as referred to in SZLSP, the purpose of s.430 is:
94. … to expose to scrutiny what the tribunal in fact did in the four respects (specified in s 430(1)) and by doing so to enable the process of judicial review to be undertaken so as to ascertain whether the decision-maker acted in the performance of his or her statutory power or function according to law.
Section 430(1) is intended to guide decision makers as to what should be addressed so that jurisdictional errors are not made. For example, subsection (d) specifically refers to “evidence or any other material on which the findings of fact were based.” This alerts decision makers to the need to tie their findings to the evidence they rely on. If they do not, then, depending on the facts of the case, their failure to do so might result in an error of law for failing to address relevant evidence. In effect, s.430(1) helps decision-makers avoid mistakes. Those who fail to take note of this legislative umbrella risk mistakes of the sort this Court is asked to identify.
With this in mind, the question here is whether the Tribunal failed to do what this “statutory guide” suggests and, ultimately, and as a consequence, failed to discharge its statutory function according to law.
Turning to the Tribunal’s decision here, the Tribunal starts with an “assessment” of the country information relied on by the delegate in determining whether the applicant would face persecution in Malaysia:
6. The delegate refused to grant the visa on the basis that country information suggested that any discrimination or harassment experienced by Shia Muslims in Malaysia for the essential and significant reason of their Shia Muslim beliefs does not rise to the level that would give rise to an objectively well-founded fear of persecution if the applicant were to be returned to Malaysia now or in the reasonably foreseeable future, and that the Malaysian state would be willing and able to provide adequate protection to the applicant in his particular circumstances. The delegate further found that the applicant outlines his situation in minimal detail and with no supporting evidence.
The Tribunal then continues:
7. The Tribunal has had regard to relevant portions of DFAT “Country Information Report: Malaysia”, 19 April 2018. On the basis of the foregoing, the Tribunal finds that the delegate’s summary of country information relevant to the applicant’s claims for protection is pertinent and appropriate to the applicant’s claims for protection, and accurately summarises the available country information.
Overall, the Court is concerned that there does not appear to be any in depth analysis of the country information the Tribunal says it relies on and how it applies, specifically, to the applicant’s “particular circumstances”.
The Tribunal notes (at [7]) that it has had regard to “relevant portions” of a DFAT report dated 19 April 2018. The Tribunal was, of course, obliged to take into account the DFAT report (Act, s.499). The Tribunal does not, however, outline here (either in the body of its decision or in a footnote) what “portions” of the report it considers relevant.
The Tribunal then refers to the summary of the country information provided by the delegate. The delegate’s decision was handed down one year prior to the Tribunal’s decision.
The phrase, “[o]n the basis of the foregoing” tends to suggest that, having had regard to the updated DFAT report, there did not appear to have been any change in the circumstances in Malaysia to the circumstances reflected in the delegate’s summary of the country information. This is not, however, entirely clear.
The Tribunal then references the invitations sent to the applicant and notes his failure to reply (CB 85 [8] to [10]).
At [14]-[15] the Tribunal noted that the delegate’s summary of the applicant’s claims for protection was “fair and accurate” (CB 86).
The Tribunal then references the similarity between some of the answers on the applicant’s protection visa application form and those of someone living with him (CB 86 at [18]) and the failure of the applicant to respond to the Tribunal’s invitations to provide more information.
At [22] the Tribunal states that it “concurs” with the delegate’s finding that the applicant’s claims were inadequate and lacked supporting evidence (CB 87).
These comments preface the Tribunal’s credibility findings and its findings about the genuineness of the applicant’s claims
The Tribunal then concludes:
23.The Tribunal, therefore, finds that the applicant does not subjectively hold a genuinely well-founded fear of persecution in Malaysia, now or in the reasonably foreseeable future for the essential and significant reason of his Shia Muslim beliefs, or for any other reason, if the applicant were to be returned to Malaysia now or in the reasonably foreseeable future.
At [24] the Tribunal, referencing the country information, states:
24. The Tribunal further finds, on the basis of available country information, including that which was surveyed by the delegate in their record of decision, that the Malaysian state would be willing and able to provide adequate protection to the applicant in his particular circumstances.
The Tribunal then concludes:
25. In light of these considerations, the Tribunal has considered each of the integers of the applicant’s claims for protection individually and then cumulatively. On the basis of these considerations, the Tribunal finds that, taken at its highest, the applicant’s claims and evidence lack credibility, are vague, incomplete and lack an appropriate level of corroboration as discussed above, and do not reach a level that demonstrates the applicant faces either a real chance of serious harm, or a real risk of significant harm, now or for the foreseeable future, if he were returned to Malaysia.
In WADZ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 118 at [10], Spender, O’Loughlin and Gyles JJ stated:
If the Tribunal had deferred to the opinion of the delegate of the Minister on the issue of credibility, or if, to put it another way, the Tribunal had not considered the issue for itself, then the appellant would have ground for complaint.
It cannot be said here that the Tribunal did not “decide the issue for itself” on issues surrounding the applicant’s credibility. The Tribunal canvasses the various invitations and the failure to provide further information when given an opportunity to do so. This sets up the relevant link between a negative credibility finding and a finding that the applicant does not hold a “genuinely subjective fear of harm”.
The Court does, however, have concerns in relation to the Tribunal’s “evaluation” of the country information.
While the Court accepts that where the Tribunal has made a statement that it has “had regard” to material, that statement tends to suggest it did, in fact, have regard to a document: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [100]. This does not mean, however, that some analysis of that information is not required, particularly if it is being used to deny someone refugee protections.
Here, there is little analysis provided of the country information found to be reliable and how that country information supports a finding that the applicant does not face either a real chance of serious harm, or a real risk of significant harm, now or for the foreseeable future, if he were returned to Malaysia.
The Tribunal’s use and analysis of the relevant country information here is problematic. To some extent, the applicant is left guessing.
The question here, however, is whether the Tribunal’s deference to the delegate’s use of the country information amounts to jurisdictional error.
On the facts of this case, the Court finds that the Tribunal’s actions here do not amount to jurisdictional error.
It is an accepted legal principle that how the Tribunal deals with and assesses the country information before it is a matter for the Tribunal within the context of the particular factual background and issues before it. The choice and interpretation of country information is a factual matter for the Tribunal alone: Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419.
Here, the Tribunal states that the applicant’s claims are inconsistent with the country information, including that surveyed by the delegate. It is also noted that the Tribunal refers to a DFAT report dated the same day the Tribunal heard this matter.
While one might expect the Tribunal’s analysis of the information it uses to be more substantive, the Tribunal does refer to country information including that cited in the delegate’s decision and also references the most recent DFAT Report.
In the circumstances it cannot be said that the Tribunal simply deferred to the delegate’s analysis of the country information. The Tribunal here references that information within the context of its own analysis of the most recent DFAT overview of the situation in Malaysia. What the Tribunal does with that information is for the Tribunal alone. While more detail might be preferable (and, indeed, is the norm in most Tribunal decisions), were the Court to require a detailed overview this would risk steering the Court down the slippery path of merits review, going to reliability and accuracy and the Tribunal’s assessment of the country information before it. Here, the Tribunal referenced country information and ultimately made findings that the applicant would not face harm to the requisite standard. There is nothing to suggest that that finding was not open to it.
Even if the Court is wrong in this regard, it cannot be said that any error in relation to the Tribunal’s use of the country information deprived the applicant of a successful outcome or, alternatively framed, made any difference to the Tribunal’s decision: Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780 at [31] (“Hossain”).
At [23], the Tribunal rejected the applicant’s claims on the basis that it was not satisfied the applicant subjectively held a well-founded fear of persecution. The Tribunal made that finding based upon the credibility findings it had drawn – credibility findings which, this Court has determined, the Tribunal “decide[d] for itself”.
The country information findings at [24]-[25], although ultimately somewhat “merged” with the Tribunal’s credibility findings, were nonetheless framed in the alternative – as “further findings” (that were not needed, in any event, within the particular facts of this case).
Once the Tribunal determines that the subjective fear does not arise, the need to consider if the fear is “well-founded” is unnecessary: SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J.
Hence, if the Tribunal erred (and the Court does not find that it did so) any such error was not material to the outcome or jurisdictional in nature (Hossain at [31]) as there was a separate and independent (primary) finding (Ibrahim v Minister for Immigration & Citizenship [2009] FCA 1328 at [14]-[15]) at [23] that was sufficient to dispose of the applicant’s claims – resulting in a finding that he did not meet the criterion of s.5H of the Act
Turning to the Tribunal’s findings in relation to the complementary protection criterion, it is noted that the Tribunal continues:
30. The Tribunal has found above that the applicant does not hold a well-founded fear of persecution if he were to return to Malaysia now, or in the reasonable foreseeable future. Having considered the applicant’s particular protection claims individually and then cumulatively; the Tribunal’s findings relating to the lack of credibility of those claims and the fact that those claims are inconsistent with country information including that surveyed by the delegate in their record of decision, the Tribunal finds that the applicant can obtain protection from the Malaysian authorities such that there would not be a real risk he would suffer significant harm for the purposes of s.36(2)(aa) of the Act.
The Tribunal here refers to the applicant’s claims as “inconsistent with country information”. Again, the Tribunal fails to cite or reference how the country information is inconsistent with the applicant’s claims. It simply relies on the delegate’s findings.
Counsel for the Minister, Mr Gerrard, conceded that the Tribunal should have referred to, or at least footnoted, the country information or the reference to the delegate’s decision in the “usual way”. That is the guidance offered in s.430(1)(d).
It cannot be said here, however, that there is no basis for the Tribunal’s findings in this regard. The Court notes that the Tribunal states that the applicant’s claims are inconsistent with the country information “including that surveyed by the delegate”. It is also noted that earlier the Tribunal refers to a DFAT report dated the same day the Tribunal heard this matter.
Again, as also stressed above, while the Tribunal’s “analysis” could have been better drafted and detailed, the Tribunal does refer to country information “including” that cited in the delegate’s decision. This allows the Court to infer the Tribunal has, in fact, considered other sources of country information (albeit not cited in this section but arguably including the most recent DFAT report) when making the finding the applicant does not meet the requirements of s.36(2)(aa) of the Act.
Again, the Tribunal is entitled to rely upon country information as it deems fit and the accuracy of that information is a matter for the Tribunal: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11].
Here, the Court is satisfied the Tribunal considered the applicant’s claims with respect to the complementary protection criterion sufficiently. It would, obviously, have been preferable for the Tribunal to have referenced the country material in some detail – not because the Court has any authority to review the analysis provided, but simply because it would have given the applicant a more detailed, and deserved, analysis of the Tribunal’s thinking process. This would have made for a more complete decision – one less likely to lead to an unrepresented applicant assuming that the Tribunal did not treat him fairly.
No jurisdictional error can be seen in this regard.
For the sake of completeness, the Court notes that the Tribunal made an error in [8] of its decision where it transcribed what it stated were the contents of the Invitation. There were a number of differences between what the Tribunal transcribed and what appeared on the Invitation. For example, the Tribunal states that the applicant had until 9 April 2018 to respond. In fact, the Invitation stated he had until 6 April 2018.
The Invitation and the Tribunal’s summary at [8] are, in effect, saying the same thing. The Court is satisfied that this one example is a “typographical error”, and other differences are indicative of poor drafting. In this regard, the Court notes the remarks of the High Court in CRI026 v Republic of Nauru (2018) 92 ALJR 529 as follows:
[57] It is unfortunate that such an error should have been permitted to occur … Such errors are likely to create doubts about the validity of decisions which should not arise. Nevertheless, reading the Tribunal’s reasons as a whole, it is plain beyond peradventure that in this case it was not an error in the reasoning process …
Albeit unfortunate, and something that should not have occurred, any concerns that the Tribunal did not actively consider the review application rise no higher than to express caution. As the substance of the Invitation is similar and is clearly directed to the same issues, the Court does not find that that any error in this regard can be said to be jurisdictional: Hossain at [31].
For the reasons outlined above, ground 1 must fail.
Ground 2
Submissions
The applicant appeared to be of the view that he was invited to a hearing before the Tribunal. After hearing the Minister’s submissions in respect of this ground the applicant advised the Court that he lost his mobile phone when the Invitation was sent. The Court asked the applicant why he did not respond to the Second Invitation, and he stated he did not understand what the Second Invitation was asking him to do.
The Court accepts, and it was not challenged by the Minister, that the applicant did not take note of the content of the Invitation until his response on 13 April 2018 and, further, that he did not understand the Second Invitation and what was being asked of him by the Tribunal.
As noted above, Counsel for the Minister foreshadowed that he would comment on the operation of s.424C of the Act as relevant to the circumstances of this case. The following submissions were made:
a)the applicant had an opportunity to raise whatever claims he wished with the Tribunal; however, he failed to respond to the Invitation, that Invitation being sent pursuant to s.424A of the Act;
b)the consequence of the applicant’s failure to respond was that the Tribunal was entitled, in accordance with s.424C, to make a decision without taking any further action to obtain the applicant’s views on the information.
c)the circumstances of this case are the same as those in Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 (“Singh”) and the Full Court there found the Tribunal was entitled to proceed to make a decision without taking any further steps;
d)the Tribunal, by the Second Invitation, allowed the applicant a further opportunity to comment on and respond to the information and the applicant, again, did not do so;
e)the Tribunal acted reasonably in allowing only a limited period of time (1 day) for the applicant to respond to the Second Invitation given the response received on 13 April 2018 was in circumstances where the applicant’s response was another “one liner” which did not ask for any extra time specifically, did not indicate that a response would be forthcoming, did not indicate that he wanted to attend a hearing, and did not indicate what kind of material might be put forward or that there was an intention to provide further material; and
f)the information that had been put to the applicant in the Invitation was simple, the applicant had not responded and as the passage of time in which he was to respond to the Invitation had lapsed before any response was received, the right to a present evidence was lost.
Consideration
Although the central concern in relation to ground 2 relates to the Tribunal’s application of s.424C of the Act, there is a preliminary issue that arises from the applicant’s oral submissions to the Court.
The applicant seemed to suggest that he did not understand the Invitation because he could not read English and did not grasp the content of what was being asked.
As addressed above, applicants who do not speak the English language and who often have limited education find the immigration process and the litigation processes around it complex, alienating and inaccessible.
The Court is, of course, sympathetic and again stresses that much of the confusion here would have been resolved had the applicant had some legal assistance. Despite this, the fact that the applicant was not provided information in his own language or via a different medium does not amount to jurisdictional error. The Invitation specifically referred the applicant to a Translating and Interpreting Service (CB 74). Further, there is no evidence that Tribunal staff were aware that the applicant did not read or would not have access to support. This issue was not raised by the applicant at any time throughout the application process.
While sympathetic to the concerns raised by this applicant, the applicant’s oral submissions to the Court in this regard do not establish jurisdictional error.
In relation to s424C of the Act, the Tribunal proceeded to determine the application before it without inviting the applicant to a hearing. It did so pursuant to s.424C of the Act, which reads:
424C Failure to give information, comments or response in response to written invitation
…
(2) If the applicant:
(a) is invited under section 424A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
Pursuant to s.425(2)(c) and (3) of the Act, if s.424C(2) applies, the applicant is not entitled to be invited to a hearing or appear before the Tribunal. Section 425 provides:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
For s.424C(2) of the Act to be enlivened (ie, for the Tribunal to make a decision without further engaging with the applicant) – the Tribunal must be satisfied that:
a)the Invitation was valid; and
b)the applicant did not comment or respond to the Tribunal within the prescribed time.
The requirements for the Invitation are found in s.424B of the Act:
424B Requirements for written invitation etc.
(1)If a person is:
(a) invited in writing under section 424 to give information; or
(b) invited under section 424A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
…
To repeat the relevant background to this matter, the Invitation of 23 March 2018 invited the applicant to:
…comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
The Invitation then provided clear and relevant particulars of matters of concern to the Tribunal (CB 72-73).
The Invitation gave the applicant until 6 April 2018 to comment or respond to the Invitation. It concluded with:
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
(Emphasis in original)
The applicant did not comment on or respond to the Invitation of 23 March 2018 within the “prescribed period”. He was required to respond by 6 April 2018 (although the Tribunal incorrectly stated in its decision that the date was 9 April 2018).
The applicant did not contact the Tribunal until 13 April 2018. On that day, he sent an email that stated (CB 75):
I’m just read this email because I’m just recover again my email for this one. What should I do to settle about this problem. I’m really appreciate if you can do something about this.
On 16 April 2018, the Tribunal responded to the applicant via the Second Invitation as follows (CB 76):
Please refer to the letter dated 23 March 2018. As no response has been received to the information we provided to you by the deadline of 6 April 2018, the Tribunal is currently considering your application for review on the basis of the information before it. If you wish to respond to the information provided to you in the letter of 23 March 2018, you are advised to provide a written response by close of business on Tuesday, 17 April 2018.
(Emphasis in original)
The applicant did not respond to the Second Invitation of 16 April 2018.
The Tribunal handed down its decision on 19 April 2018. The Tribunal proceeded to make a decision without any input from the applicant.
A number of issues arise from the above.
A preliminary question to be determined is whether the Tribunal actually could grant the applicant the extension of time it provided via its Second Invitation.
Section 424B(4) of the Act states:
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
In Hasran at [45]-[48] the Full Court stated:
45. The question of whether the Tribunal may exercise the power under s 359B(4) to extend the period to respond to an invitation under s 359A after the expiry of the initial prescribed period was left open in Sun at [51].
46. However, in M at [52] Tracey J said that had it been necessary to do so, he would have held that the Tribunal could not enlarge time under s 359B(4) after the expiry of the date prescribed in the s 359A letter.
47. In coming to that view, Tracey J observed that s 359B(4) is cast in the present tense. That is to say, the subsection contemplates a person who “is to respond to an invitation” within the stipulated time. We agree with Tracey J that this indicates that the power to grant an extension is lost since the prescribed time has expired.
48. That view is re-enforced by the provisions of s 359C(2). If an applicant does not give the comments or response “before the time for giving them has passed” the Tribunal’s power to make a decision without taking further action to obtain the applicant’s views is enlivened. This is a further indication that the Tribunal’s discretion to extend time is spent if a request is made after the expiry of the prescribed period. The effect of this subsection, when read with s 360(2), s 360(3) and s 363A is that the gate closes on an applicant who fails to respond to a letter under s 359A within the prescribed time. There is simply no discretion to extend the time to respond.
(Citations omitted, emphasis added)
In Minister for Immigration & Multicultural Affairs v Sun (2005) 146 FCR 498 (“Sun”) a similar situation arose whereby the Tribunal had invited the applicant to comment, the time period had expired, the applicant then sought to provide information, the Tribunal allowed an extra period to provide the information and thereafter decided the review without an oral hearing.
In Sun, the Full Court referred to the fact that the invitation letter sent to the applicant extending time was “not happily worded” (at [45]), but, nevertheless, it could not be said that the Tribunal was derogating from the position that the initial period having expired, the applicant had forfeited the right to appear before the Tribunal (at [46]). The Court went on to say, however, that the additional invitation to comment was not an extension pursuant to s.359B(4) (the equivalent of s.424B(4)); rather, it was an opportunity to comment on or provide information to the Tribunal before it made the decision.
Here, the Second Invitation clearly sought to extend the time for the applicant to provide a response to the Invitation. Relevantly, that extension of time was provided almost one week after the original deadline to provide a response.
In the circumstances here, as in Sun, the Court finds that the Second Invitation to comment was not an extension pursuant to s.424B(4) of the Act. Rather, it was an opportunity to comment on, or provide, information to the Tribunal before it made the decision as per s.423 of the Act, which reads:
Documents to be given to the Tribunal
(1) An applicant for review by the Tribunal may give the Registrar:
(a)a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b)written arguments relating to the issues arising in relation to the decision under review.
Lest the Court be wrong in relation to the above (such that the Second Invitation was, in fact, a valid invitation to provide information in response), it might be suggested that, by allowing the applicant (via the Second Invitation) more time to comply with the First Invitation, the Tribunal was, in effect, extending the original Invitation due date (such that the email of 13 April 2018 from the applicant might now be seen to have been filed “on time”). If that were the case, the question would then arise as to whether the applicant did, in fact, provide a “response” or “comment”, such that he did not forfeit his right to a hearing.
Putting aside the validity of the Second Invitation, there is nothing in the above correspondence that indicates that this was the Tribunal’s intention. The Tribunal makes clear its view that nothing had been received by 6 April 2018 but that the applicant would now have until 17 April 2018 to file a written response to the information outlined in the letter of 23 March 2018. Nothing was received by that date.
Further, it cannot be said here that the contents of the email of 13 April 2018 constitute a “response” or a “comment” (as those words are used in s.424B of the Act) to any invitation to provide information.
In this regard, the Court references the decision of Jagot J in Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233 (“Saba”).
In Saba, the principal issue for determination was whether s.359C(2) of the Act (the equivalent of s.424C(2)) applied to Saba Bros, and consequently s.360(2)(c) of the Act (the equivalent of s.425(2)(c)).
Justice Jagot noted that if s.359C(2) applied to Saba Bros, as the Tribunal considered it did, Saba Bros was not entitled to appear before the Tribunal and the Tribunal was bound to proceed with the review as it did (ss.360(3) and 363A). If, however, s. 359C(2) did not apply to Saba Bros, the Tribunal was obliged to invite Saba Bros to appear before it in accordance with s.360(1). Breach of this obligation, the effect of which would be to deny Saba Bros a hearing, would constitute a jurisdictional error.
Relevantly, His Honour outlined the background to this matter as follows:
12.On 27 October 2008, Saba Bros applied to the Tribunal for review of the delegate’s decision.
13.On 25 January 2010, the Tribunal wrote to Saba Bros. It is not in dispute that the letter (the Tribunal’s invitation) was purportedly sent under s 359A of the Migration Act. The letter included the following passages (emphasis in original):
[…]
Saba Bros Tiling Pty. Ltd. is invited to comment on or respond to information that the Tribunal considers would, subject to any comments or response it makes, be the reason, or a part of the reason, for affirming the decision that is under review.
The particulars of the information are:
….
This information is relevant to the review because the Tribunal may find that for the purposes of regulation 5.19(1C)(a)(iii), the applicant, Saba Bros Tiling Pty. Ltd. is the subject of an action that is described in section 140L of the [Migration] Act (as it existed prior to 14 September 2009) and in that case, the application must be rejected pursuant to regulation 5.19(1C)(b). The Tribunal may find that the reference to s.140L in regulation 5.19(1C)(a)(iii) is a reference to the now repealed s.140L or to the new section 140M which came into force on 14 September 2009. This may lead the Tribunal to find that the application must be rejected pursuant to regulation 5.19(1C)(b).
Saba Bros Tiling Pty. Ltd. is invited to give comments on or respond to the above information in writing.
[…]
If the Tribunal does not receive Saba Bros Tiling Pty. Ltd’s comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain its views on the information. Saba Bros Tiling Pty. Ltd. will also lose any entitlement it might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.
….
15.On 22 February 2010, Saba Bros’ solicitors sent the following letter to the Tribunal (the 22 February letter):
We refer to section 351 notice [sic] and note adverse information therein. We have put the adverse information to our client, however we are instructed that he would still like the opportunity of an oral hearing.
16.On 23 February 2010, the Tribunal responded to Saba Bros. It noted that it did not regard the 22 February letter as either a response to or a comment on the information put to Saba Bros in the Tribunal’s invitation. It stated that, on this basis, the Tribunal considered that Saba Bros had lost its right to an oral hearing.
17.On 23 April 2010, the Tribunal made its decision without having invited Saba Bros to appear before it. … The Tribunal determined that Saba Bros’ application was required to be rejected …
(Emphasis in original)
In determining whether the letter of 22 February 2010 constituted a response or a comment to the request for information of the sort that would preserve Saba Bros’ right to attend a hearing before the Tribunal, His Honour found:
30. Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: “comment on or respond to” the information in the case of s 359A(1)(c), and “the comments or the response” in the case of s 359C(2)(b). This indicates that an applicant may either “comment on” or “respond to” the information in the invitation, or both comment on and respond to the information. The choice – to comment, respond or both – is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines “to comment” as “to make comments or remarks [upon]”; by contrast, “to respond” is simply “to answer in speech or writing; to reply”. An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.
31.It is true that s 359C(2)(b), read with s 359A(1)(c), requires a response to the information in the invitation. But beyond that the Migration Act imposes no minimum requirement of content for a response or a comment. Accordingly, on the face of the provisions, any reply or answer directed to the information itself will constitute a response.
32.Nothing in the context of or purpose underlying the relevant provisions indicates that the word “respond” should be given other than its ordinary and natural meaning of “to answer” or “to reply”. As Saba Bros submitted, the option of responding to (as opposed to commenting on) information under s 359A was inserted into the Migration Act by the Migration Amendment (Review Provisions) Act 2007 (Cth). If, as the Minister contended, a “response” requires an applicant expressly to state a position in relation to the information, the distinction between comment and response introduced by Parliament in 2007 would be rendered redundant.
33.On the basis of the ordinary and natural meaning of the terms contained in the relevant statutory provisions, the 22 February letter from Saba Bros’ solicitors constituted a response to the information raised in the Tribunal’s invitation. The letter said that Saba Bros’ solicitors “noted” the “adverse information” in the invitation and had put this adverse information to Saba Bros, but that Saba Bros had instructed the solicitors that it still wished to proceed with an oral hearing. The Minister contended that this was insufficient to constitute a response to the information because the “whole point of ss 359C(2) and 360 is that the applicant is not entitled to a hearing unless he or she has made some response to the information”. This submission, however, elides the consequences of not making a response or comment with the argument that such a comment or response must have some required content or quality. Contrary to the Minister’s submission, the fact that the consequence of not making a response or comment is the loss of the entitlement to a hearing which would otherwise exist supports a construction of s 359C(2)(b) which does not import into the section any subjective requirement relating to the content or quality of the comments or response.
34.The 22 February letter cannot be characterised as other than a response to the information. First, the letter characterised the information as “adverse information”. This indicates that the recipient of the letter had considered the information and concluded (albeit, in this case, erroneously) that it was adverse to the application for review. If the Minister were correct in saying that a comment or response must satisfy some minimum standard of content, then the mere characterisation of the information as “adverse” to Saba Bros’ application in the letter from its solicitors would suffice. Second, the letter said the information had been put to Saba Bros. Third, the letter said that Saba Bros had given instructions to its solicitors in the context of, and thus implicitly in response to, the information. Fourth, the instructions so given were communicated to the Tribunal as being to the effect that Saba Bros still would like the opportunity of an oral hearing. In so stating, the letter impliedly asserted that the information did not require the Tribunal to refuse Saba Bros’ application for review despite the recipient’s belief that the information was adverse to the application. The letter did not state why this was so, but the statutory provisions imposed no requirement that it do so. Brief the letter may have been; but it was a response to the information in the Tribunal’s invitation nonetheless.
Mr Gerrard, for the Minister, conceded that a response to the Invitation did not require any substantive remark or observation from the applicant but stressed that any response must be “directed to the information” in the Invitation.
The Court agrees.
Here, on the evidence, it is simply not clear what the applicant was addressing and/or asking for. In Saba, the applicant, through his lawyers, clearly indicated that they had put the information in the Invitation to their client and, importantly, that the client wanted an opportunity to attend an interview. That is not the case here. Here, the communication is neither a statement on matters of fact, nor arguments concerning the review of the decision. It does not reference the hearing or the Invitation or indicate that the applicant wishes to present oral evidence. If anything, read as a whole, the communication suggests that the applicant had no understanding of what was happening or what was in the relevant correspondence. Rather, he was simply seeking some sort of legal assistance.
The validity of the Second Invitation and timing aside, it cannot be said in the circumstances of this case that the applicant’s email of 13 April 2018 is a response to or comment on the Tribunal’s invitation to provide information.
Overall, regardless of how one frames the argument, in the circumstances of this case, the applicant lost his right or entitlement under s.425(1) of the Act to appear before the Tribunal for a hearing as he had not responded to the Invitation before the time for providing a response had passed: Act, s.424C(2)(b); Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413 (“Hasran”).
The Court is thus satisfied that, having failed to respond within the prescribed time to the Invitation, the applicant lost his right, or entitlement, under s.425(1) of the Act to attend a hearing.
Although the applicant had no right to attend before the Tribunal, the Tribunal still retained the discretion to seek information from him: SZQLJ v Minister for Immigration & Citizenship [2011] FMCA 932.
The question here is whether, in not doing so, the Tribunal acted unreasonably. In Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713 at [12]-[13] per Kiefel CJ (“SZVFW”) referred to the principles guiding a Court when considering unreasonableness in the exercise of a discretion:
[12] In Minister for Immigration and Citizenship v Li reference was made to what had been said in Klein v Domus Pty Ltd regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts.
[13] The Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. In reviewing a decision the Tribunal is required to act according to substantial justice and the merits of the case. Clearly enough s 426A is directed to the aims of efficiency contained within these objectives, although it is not to be exercised in a way which would be contrary to the others. Consistently with what has earlier been discussed, it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case.
SZVFW concerned the Tribunal’s exercise of the discretionary power under s.426A of the Act to make a decision on a review upon an applicant failing to appear at a hearing, without taking any further steps to contact the applicant. Like s.426A of the Act, the Court considers s.424C of the Act to be directed at ensuring efficiency on the part of the Tribunal. As such, the Court recognises that the Tribunal has a degree of latitude and decisional freedom when determining whether the exercise of the discretion in any given case is fair and just.
In relation to this matter, it is noted that once the Tribunal received the applicant’s email of 13 April 2018 requesting assistance, the applicant was, in effect, only given a one day extension within which to respond to the First Invitation. The applicant would be deemed to have received the Second Invitation at the end of the day on 16 April 2018 (Act, s.494C). That, in effect, gave the applicant just 24 hours to respond to the information.
The question arises, given this short period of time, whether the Tribunal’s decision to proceed without providing more time to make submissions was unreasonable.
On a purely emotional level, it does seem that requiring a legally unrepresented, non-English speaking applicant who has just sent an email that makes it clear that he has absolutely no idea what is happening is “harsh”. But that is not the test here. Nor is the test whether this Court might have acted differently. As stressed in Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 at [92] per Wigney J:
The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision or if the decision is within the “area of decisional freedom” of the decision-maker, it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently.
(Citations omitted)
The Tribunal is not required to ensure that an applicant takes advantage of an opportunity given to them. It must merely offer the opportunity. Further, it is not the Tribunal’s role to help an applicant articulate their case: Sullivan v Department of Transport (1978) 20 ALR 323. The Tribunal must, however, act fairly.
The applicant’s application for review to the Tribunal was made on 23 March 2017. The Tribunal acknowledged receipt of the review application on 27 March 2017 and asked the applicant to provide material and arguments to the Tribunal “as soon as possible” (CB 66-67). Nothing was provided by the applicant.
The Invitation was sent on 23 March 2018, one year after the application for review was filed. Nothing was received by the applicant during this period.
The applicant was provided the minimum statutory period to respond to the Invitation (Migration Regulations 1994 (Cth), reg.4.35(3)). He did not do so.
The Second Invitation further indicated that the Tribunal was considering the application on the information before it.
There is no evidence to suggest that the applicant did anything to progress his case from the date of filing his review application in the Tribunal.
In the circumstances, it appears that the Tribunal allowed one day on the basis of an evaluation of what the applicant had (or had not done) in the proceeding period.
Given the applicant’s history to date and his lack of any active engagement in the visa process, the decision to provide only one more day to provide submissions was itself reasonable and justified. That does not mean, however, that the Tribunal member could not have granted more time.
The decision was made on 19 April 2018. The Tribunal acted quickly and efficiently, as per its legislative objectives, in assessing the applicant’s review application.
The Court notes that in Singh, the Tribunal received a request for an extension of time for the applicant to respond to a notice under s.359A of the Act. The applicant requested an extension of time until 15 February 2015, and noted that it was expected that a different visa application would be lodged on 31 January 2015 and the present application withdrawn (at [26]).
The Tribunal in that case indicated it would provide until 23 January 2015 for the applicant to respond to the notice and the Court considered whether it was legally unreasonable for the Tribunal to proceed to make its decision, pursuant to s.359C of the Act, instead of waiting until 15 February 2015. The Court said:
79.Both the original period of time given by the Tribunal and the extension of time complied with the terms of the Act and the Regulations, and the appellant did not submit otherwise. His complaint appeared to be that the Tribunal should have waited until the date unilaterally nominated by his representative – namely 15 February 2015. However, that was the date the appellant’s representative foreshadowed withdrawing the review application. That date appears to have been nominated by reference to the date the representative informed the Tribunal the new visa sponsorship application would be lodged: namely, 31 January 2015. The 2 January email, in its timing and content, was more apparently referable to the Tribunal’s s 359A letter and the (then) present intention of the appellant’s representatives concerning a response. There was, in my opinion, a justification for the Tribunal’s response to the 2 January 2015 email by way of granting an extension of time, and obviously doing so in accordance with the periods prescribed was entirely reasonable.
80. Nor can it be said that the Tribunal’s conduct in proceeding to finalise its review shortly after 23 January 2015 was legally unreasonable, in the sense of being without any intelligible justification. Quite the contrary: the Tribunal’s conduct was entirely intelligible. The extension of time letter sent by the Tribunal on 9 January 2015 expressly warned the appellant and his representative that if no comments were received by the extended date of 23 January “the Tribunal may make a decision on the review without taking any further action to obtain your views on the information”. Section 359C(2) expressly permitted it to do just that, and there was nothing in the facts and circumstances of this review which could have put the Tribunal on notice that the only reasonable course to take would have been to wait for a longer (unspecified) period of time before finalising the review.
In this matter, after outlining the contents of the Invitation, the Second Invitation and the applicant’s email of 13 April 2018, the Tribunal states that “pursuant to s.424C(2)” of the Act, it has proceeded to decide the application without taking any further action to obtain the applicant’s views on the information contained in the Invitation.
The Tribunal is not required to explain why it has not exercised a discretion in an applicant’s favour: CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641 at [49]. Whether not doing so amounts to jurisdictional error is contextual and fact specific.
Here, the Invitation warned the applicant that if he did not respond he would lose the entitlement to attend a hearing. It further advised that the Tribunal might make a decision on the review without obtaining any further information from him. The Tribunal assessed all of the correspondence to and from the applicant, noting the relevant time frames and the applicable legislation. This assessment included the contents of the applicant’s email of 13 April 2018.
Echoing Mortimer J in Singh (at [80]), there was nothing in the facts and circumstances of this review process which should have put the Tribunal on notice that the only reasonable course to take would have been to wait for the applicant to provide some sort of response to the Invitation and/or any other information he might wish to produce.
Here, the applicant had had limited involvement throughout the entire visa process. He does not appear to have attended an interview with the delegate and at no stage chose to put forward any information beyond the bare statements contained in his visa application. The Tribunal was, in these circumstances, justified in making a decision without exercising the discretion to invite the applicant to provide information.
While reasonable minds might differ as to how this matter should have been handled, it cannot be said here that the Tribunal’s approach was legally unreasonable (in the sense of being without any intelligible justification).
No error arises in ground 2. Ground 2, accordingly, fails.
A final observation
This Court has expressed concern with the substance of the decision the subject of these proceedings.
In Zhang v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 384 at 410 French J (as he then was) commented:
This case is not an occasion for a general review, criticism or endorsement of the merits of the administrative procedures used by the Minister’s delegates and officers. The court has no direct knowledge of the resource implications of particular procedures, nor of the resources available to the Department to implement them. Oral hearings by the ultimate decision-makers could be provided for all applicants using the simple artifice of increasing the number of persons with appropriate delegations. However it may be, and there is some hint of this in the evidence, that such a solution would also put the final decision-making responsibility in the hands of more junior and less experienced officers than those who currently hold delegations. In my opinion, courts should be reluctant to impose in the name of procedural fairness detailed rules of practice, particularly in the area of high volume decision-making involving significant use of public resources.
The Court appreciates that the Tribunal is an adjudicative body with an extraordinarily demanding workload. Its members are highly regarded by this Court. They are some of the hardest working adjudicators in the country. They have also, of late, been the subject of unprecedented media scrutiny – much of it unjustly critical of individual decisions and individual decision makers.
The Court does not intend for these reasons to be critical of the Tribunal, its members or its staff. The Court merely seeks to emphasise the importance of ensuring that, when considering a protection visa application, the applicant is provided an in-depth analysis of the relevant law and the Tribunal’s reasons. Applicants in migration and refugee proceedings need (and deserve) confidence that their voices are being heard and assessed and considered with care and diligence.
Conclusion and Orders
The Court has failed to identify jurisdictional error in the grounds of the judicial review applications, or otherwise on the face of the Tribunal’s decision.
The application, therefore, must be dismissed.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 1 May 2019
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