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 |
| Applicant: | COG18 |
| First Respondent: | MINISTER FOR HOME… |
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Details
- Case
- [2019] FCCA 1092
- Decision Date
CaseChat Overview and Summary
The applicant, COG18, sought judicial review of a decision by the Minister for Home Affairs, affirmed by the Administrative Appeals Tribunal, to refuse to grant a protection visa. The dispute centred on whether the Tribunal had committed jurisdictional error by failing to provide adequate reasons for its decision and by proceeding to determine the application without allowing the applicant to present further submissions. The matter was heard in the Federal Court of Australia before Judge Kendall.
The legal issues before the Court were whether the Tribunal’s decision lacked substantive analysis, whether this failure to provide substantive reasons amounted to jurisdictional error, and whether the Tribunal erred by proceeding to a decision without allowing the applicant to attend or provide written submissions, particularly given the applicant's delayed response to an invitation to provide information. The Court was also required to consider whether the applicant's email seeking assistance constituted a "response" or "comment" within the prescribed period.
The Court reasoned that a failure to comply with the requirements of section 430(1) of the Migration Act 1958, which mandates the provision of reasons, findings of fact, and the evidence on which those findings are based, does not in itself constitute jurisdictional error. Citing *Minister for Immigration & Citizenship v SZLSP*, the Court explained that the purpose of section 430(1) is to expose the decision-making process to scrutiny to enable judicial review for jurisdictional error, and that a failure to comply with its provisions may lead to an order compelling compliance rather than invalidating the decision. The Court found that the applicant's email of 13 April 2018 was not a substantive response to the invitation to comment on the information provided, and that the Tribunal was therefore entitled to proceed with its review. While the Court expressed concerns about the brevity of the Tribunal's decision, it concluded that no jurisdictional error had been demonstrated.
The appeal was dismissed.
The legal issues before the Court were whether the Tribunal’s decision lacked substantive analysis, whether this failure to provide substantive reasons amounted to jurisdictional error, and whether the Tribunal erred by proceeding to a decision without allowing the applicant to attend or provide written submissions, particularly given the applicant's delayed response to an invitation to provide information. The Court was also required to consider whether the applicant's email seeking assistance constituted a "response" or "comment" within the prescribed period.
The Court reasoned that a failure to comply with the requirements of section 430(1) of the Migration Act 1958, which mandates the provision of reasons, findings of fact, and the evidence on which those findings are based, does not in itself constitute jurisdictional error. Citing *Minister for Immigration & Citizenship v SZLSP*, the Court explained that the purpose of section 430(1) is to expose the decision-making process to scrutiny to enable judicial review for jurisdictional error, and that a failure to comply with its provisions may lead to an order compelling compliance rather than invalidating the decision. The Court found that the applicant's email of 13 April 2018 was not a substantive response to the invitation to comment on the information provided, and that the Tribunal was therefore entitled to proceed with its review. While the Court expressed concerns about the brevity of the Tribunal's decision, it concluded that no jurisdictional error had been demonstrated.
The appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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. 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]); ande)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]).
Decision
Reasons for decision
Section 430 of the Act provides: 430 Tribunal’s decision and written statementWritten 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.
Ratio Decidendi
Legal Principle Established
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