CPL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 519
•6 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CPL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 519
File number(s): SYG 1638 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 6 May 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – judicial review application largely dependent upon the outcome of a related application – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 48A, 424A
Migration Regulations 1994 (Cth)
Cases cited: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
BHB17 v Minister for Immigration & Anor [2019] FCCA 1220
CQH19v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 517
ETT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 518
Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Number of paragraphs: 38 Date of hearing: 17 March 2021 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitors for the Applicant: Dobbie and Devine Immigration Lawyers Pty Ltd Counsel for the Respondents: Mr G Johnson Solicitors for the Respondents: Sparke Helmore ORDERS
SYG 1638 of 2019 BETWEEN: CPL19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
6 MAY 2021
THE COURT ORDERS THAT:
1.The application filed on 2 July 2019 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 June 2019. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.
The applicant is a minor and her mother has been appointed her litigation guardian.
This matter was heard consecutively with proceedings SYG 3154 of 2019 (ETT19) and SYG 1661 of 2019 (CQH19), which concern the applicant’s father and two sisters.
The following statement of background facts relating to this matter is derived from the submissions of the parties.
The applicant is a six year old girl born in Australia to Malaysian parents. The applicant’s father and sister are applicants in other proceedings before the Court.[1] The applicant’s mother and another sister are also applicants in other proceedings before the Court.[2] The Court has ordered that the three sets of proceedings be heard consecutively.
[1] ETT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 518
[2] CQH19v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 517
On 31 August 2016 an application for a protection visa was made on the applicant’s behalf.[3] It was claimed that she feared returning to Malaysia due to the marital status of her parents. Her father married a Malaysian woman after coming to Australia despite being married at the time in Malaysia to another woman. The applicant also claimed to fear harm in connection with difficulties in obtaining a Malaysian travel document in Australia.
[3] Court Book (CB) 1-40
On 7 December 2016 the delegate refused to grant the applicant a protection visas.[4] The applicant applied to the Tribunal for review of the delegate’s decision.
[4] CB 49
As noted above, on 4 June 2019 the Tribunal affirmed the decision under review.[5] The Tribunal was not satisfied that the applicant met the requirements for the grant of a protection visa under s 36(2) of the Migration Act 1958 (Cth) (Migration Act). The Tribunal did not accept at [60]-[61] that the applicant’s parents were in a polygamous relationship, but rather were in a bigamous relationship. The Tribunal observed that laws concerning bigamy in Malaysia were of general application and therefore ordinarily would not constitute persecution.[6] The Tribunal found at [64] that, in the circumstances, the applicant did not have an objectively well-founded fear of persecution on the basis of the marital status of her parents. The Tribunal also did not accept at [67] that “administrative difficulties” associated with the applicant obtaining a Malaysian travel document amounted to persecution. The Tribunal observed that the applicant was “prima facie a Malaysian citizen by de[s]cent” under the Malaysian Constitution.
[5] CB 194
[6] At [62], citing Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233
The Tribunal’s reasons are lengthy. The application concerns specific aspects of those reasons. The applicant describes the bulk of the Tribunal’s reasons in general terms. The applicant addresses those aspects of the Tribunal’s reasons which are critical to the application.
The applicant’s mother, a Malaysian citizen, and another sister, born in Malaysia, also had their cases reviewed by the Tribunal. The Tribunal had the same constitution as the present case and gave its decision on the same date.
The Tribunal’s conclusions in the present matter were as follows:
(a)while the applicant had experienced difficulties in registering her birth with Malaysian authorities in Australia, the Tribunal nevertheless found that the applicant was prima facie a Malaysian citizen under the Malaysian Constitution;[7]
(b)there was no suggestion that the applicant would be separated from her family. In particular, given that “all persons in question are members of the same family unit and all members are currently applicants for review seeking a visa of the same subclass as the applicant, if any of the family members who are currently applying for a valid Australian visa are successful, the applicant can reasonably be expected to remain in Australia with them”;[8]
(c)the applicant’s birth could be registered in Malaysia;[9]
(d)the applicant would not face persecution or relevant harm as the child of a single mother or as an illegitimate child;[10]
(e)the applicant would not face persecution or relevant harm on account of her parents’ marital status;[11] and
(f)while the applicant had experienced administrative difficulties in obtaining a valid Malaysian travel document in Australia, and could experience difficulties of registration upon her return to Malaysia, given that she was prima facie a Malaysian citizen by descent, those administrative difficulties did not constitute persecution or relevant harm.[12]
[7] CB 202 [31]
[8] CB 203 [40]
[9] CB 206 [52]
[10] CB 206-207
[11] CB 208 [64]
[12] CB 209 [67], [69]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 2 July 2019. That application contains three grounds. Ground 1 was not pressed. Grounds 2 and 3 are in the following terms:
2.The decision of the Second Respondent is legally unreasonable or made in the absence of probative evidence.
Particulars:
(A) The decision was made in the absence of probative evidence.
(i)The Second Respondent considered that the Applicant could be issued a travel document to return to Malaysia. That finding was an integral part of the Second Respondent's reasons why it found that the Applicant was not a person to whom Australia owed protection obligations. Despite this, there was no probative evidence before the Tribunal that the Applicant could be issued with a travel document to return to Malaysia.
(B)The decision of the Second Respondent was legally unreasonable:'
(i)The Second Respondent was aware that the Applicant's father and one of the Applicant's sisters had a joint application for a protection visa that had not been finally determined, as it was also before the Administrative Appeal Tribunal. Despite the provisions of ss36(2)(b) and 36(2)(c) of the Migration Act1958 ('the Act'), the Second Respondent affirmed the review before it. It was legally unreasonable for the Second Respondent not to wait for the outcome of that separate review, which was material to determining whether the Applicant was a person to whom Australia owed protection obligations, under ss36(2)(b) and 36(2)(c) of the Act.
(ii)The Second Respondent was aware that the Malaysian authorities, by way of its officials working at the Malaysian Consulate General, had refused to register the birth of the Applicant's sister, …. The Second Respondent was aware that the Applicant had applied to the Malaysian Consulate General to register her birth (and which was relevant, given the claim that the Malaysian authorities had refused to recognize her as a Malaysian citizen). The Second Respondent, by way of a letter issued pursuant to s424A of the Act, and dated 15 February 2019, requested the Applicant to provide a certified copy of her 'Malaysian Birth Registration' by 1 March 2019. On 1 March 2019, the Applicant requested the Second Respondent to wait until the Malaysian authorities had decided the Applicant's birth registration application. The Second Respondent refused to wait until the registration application had been decided by the Malaysian authorities. That decision was legally unreasonable, in the circumstances of the Applicant's claim for protection.
(iii)The Second Respondent found that the Applicant could travel to Malaysia on a travel document and register her birth in Malaysia. The Second Respondent accepted that the Applicant had 'experienced administrative difficulties in obtaining a valid Malaysian travel document in Australia'. In the circumstances where the Malaysian authorities had not registered the Applicant's sister's birth (who was also born in Australia), where the Applicant had not been able to register her birth, and where the Applicant had not been able to obtain a Malaysian travel document, it was legally unreasonable, for the Second respondent to find that the Applicant could obtain a travel document, enter Malaysia, and register her birth.
3.The Second Respondent failed to give genuine consideration to the evidence and claims before it.
Particulars:
(A)The Second Respondent failed to give genuine consideration to the evidence and claims before it, thereby committing jurisdictional error.
(i)The Second Respondent had been informed by the Applicant that the Malaysian authorities, by way of its officials at the Malaysian Consulate General, had refused to register the birth of one of the Applicant's sisters, and that she was not recognized as a Malaysian national. The Second Respondent accepted difficulties that the Applicant had encountered in obtaining a Malaysian travel document (in fact, she was not able to obtain one). Despite this, the Second Respondent proceeded to find that the Applicant was not entitled to Australia's protection, finding that she could return to the Malaysia on a travel document. The reasoning reveals a failure of the Second Respondent to give genuine consideration to the evidence and the claims before it, particular to the Applicant (as opposed to a theoretical analysis of Malaysian citizenship law, as undertaken by the Second Respondent).
I have before me as evidence the court book lodged on 16 August 2019.
CONSIDERATION
Applicant’s contentions
Ground 2 is particularised so that it comprises two sources of complaint. The first may be described as “Ground 2(a)”. It attacks the Tribunal’s finding that the applicant could be issued with a travel document to return to Malaysia. The attack may be treated as one of legal unreasonableness.
The second source of complaint may be described as “Ground 2(b)”. It also addresses the Tribunal’s finding that the applicant could be issued with a travel document to return to Malaysia. However, the essence here is the parallel review by the Tribunal of the case of one of the applicant’s sisters for a protection visa. That sister was also born in Australia.
Ground 3 is again concerned with the Tribunal’s finding that the applicant could be issued with a travel document to return to Malaysia. The ground complains that the Tribunal did not engage with evidence of difficulties experienced by the applicant and her family with the Malaysian authorities, instead preferring evidence as to constitutional guarantees.
The applicant asserts that the Tribunal should have adjourned the proceeding pending the outcome of the review in relation to the applicant’s father and sister. No such complaint can arise in relation to the other review concerning the applicant’s mother and another of her sisters. This is because, for the purpose of the latter, the Tribunal had the same constitution and delivered its decision on the same date.
However, the Tribunal was differently constituted in relation to the applicant’s father and sister and gave its decision on a different date. As the Tribunal itself acknowledged in the present case,[13] the applicant’s visa status could be affected by the outcome of the review with respect to the applicant’s father and sister.
[13] at CB 203 [40]
The Tribunal appears to have assumed that a positive outcome with respect to the applicant’s father and sister at a later date would necessarily operate in favour of the applicant. However, the applicant submits that this would surely only be the case if the applicant’s application for the protection visa were still pending. If it were, and the applicant’s father and sister had been successful, there would then be a question of whether the applicant satisfied clause 866.221(3) of Schedule 2 to the Migration Regulations 1994 (Cth) when read with regulation 1.12.
The applicant contends that it surely requires little explanation that, if the Tribunal in the present case had already decided the applicant’s application for the protection visa adversely to the applicant before the Tribunal, differently constituted, reached a decision with respect to the applicant’s father and sister at a later date, then the subsequent decision of the Tribunal could have no impact on the applicant. This is because the question of whether the applicant satisfied clause 866.221(3) would be academic as the applicant’s application for a protection visa would already have been refused. A further application for a protection visa would presumably be barred by s 48A of the Migration Act.
It is settled that the Tribunal should adjourn a proceeding where there is no intelligible justification for proceeding to a decision without an adjournment.[14] While such unreasonableness could arise where an adjournment is sought by a party before the Tribunal and is then refused by the Tribunal, there is no reason why it cannot also arise where the question of adjournment is raised by the Tribunal’s own findings.[15]
[14] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
[15] compare AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18], [26] per Collier, McKerracher and Banks-Smith JJ and Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47 at [69] per Bromwich and Wheelahan JJ
It is submitted by the applicant that in the present case the Tribunal’s own findings at [40][16] raised the question of whether it should adjourn the proceeding pending the resolution of the review in relation to the applicant’s father and sister. There is said to have been no justification for the Tribunal failing to effect such an adjournment, in circumstances where refraining from doing so would have the effect that the applicant could not take the benefit of a favourable outcome.
[16] CB 203
This complaint would not gain traction if the Tribunal had unassailably concluded with respect to the applicant’s father and sister that they were not entitled to a protection visa. However, as indicated, the Tribunal’s conclusion to that effect is under challenge. The applicant contends that if that challenge succeeds, then the decision of the Tribunal in the present case should be quashed so that the Tribunal can reconsider whether to adjourn the proceeding with respect to the applicant. Of course, it also follows that if the other challenge fails, the challenge in this case to the failure to adjourn will also fail.
This leaves the status of the Tribunal’s findings regarding the capacity of the applicant to obtain a Malaysian travel document. The applicant’s complaint in this respect may be stated briefly. The applicant conceded that it need only be pressed if the challenge of the applicant’s father and sister to the decision of the Tribunal in their case fails, with the result that the applicant’s complaint that the Tribunal’s failure to adjourn her review was legally unreasonable also fails.
The law relating to legal unreasonableness and want of proper consideration has been stated by the applicant’s father and sister in their written submissions in ETT19. It need not, in the interests of brevity, be repeated.
The heart of the applicant’s complaint is a distinction between “law in books” and “law in action”.[17] The Tribunal has referred to a constitutional provision which by the Tribunal’s reading of its terms confers on the applicant a right to Malaysian citizenship.
[17] see generally Roscoe Pound, “Law in Books and Law in Action” (1910) 44 American Law Review 12
From this premise, the Tribunal has reasoned that the applicant must surely get a Malaysian travel document. It has reached this conclusion despite administrative difficulties faced by the applicant and other members of her family either impeding or denying registration, citizenship or a travel document.
It is said to have been legally unreasonable for the Tribunal to proceed in this way or to fail to obtain or engage with material concerning the applicant and her family outside the terms of the Constitution. It may be accepted that, where the Tribunal has no information other than the terms of the Constitution, then reliance upon those terms is not legally unreasonable.[18]
[18] BHB17 v Minister for Immigration & Anor [2019] FCCA 1220 at [47]-[50] per Judge Nicholls
However, the applicant submits that where, as in the present case, there is material diminishing or contradicting the apparent effect of a constitutional provision, it is within the bounds of legal unreasonableness for the Tribunal to simply rely upon the Constitution. It is said to be required to grapple with how far the constitutional provision appears to be applied, or not applied, in practice. This includes practice before the Tribunal, or readily obtainable by it, with respect to the applicant and her family. The foregoing is said to describe failure, and consequent jurisdictional error, by the Tribunal in the present case.
Resolution
I agree with and adopt the Minister’s relevant submissions in this case. I do so in the knowledge that, the second applicant in ETT19 having failed, this applicant must otherwise fail as well.
First ground (Ground 2)
The applicant contends first that there was no probative evidence for the Tribunal’s finding that the applicant could be issued with a travel document to return to Malaysia. However, there was evidence to this effect in the material before the Tribunal. The Tribunal had before it the delegate’s decision, and the delegate expressly referred to country information that supported a finding that the applicant would be able to return to Malaysia as a permanent resident with her mother.[19]
[19] CB 54 at [15], and see footnote 11 to the delegate’s decision
The applicant also submits that the Tribunal erred in failing to wait for the Malaysian authorities to decide the applicant’s birth registration application. The applicant says this was unreasonable. However, for reasons explained in the Tribunal’s decision at [30], [31] and [67], the real issue was not the fact that the applicant had experienced difficulties in registering her birth, but whether she was stateless. The Tribunal accepted there were difficulties in registering the birth, but held that such problems did not amount to persecution. It cannot therefore have been unreasonable for the Tribunal to have proceeded without waiting for confirmation of the birth registration. There was, in any event, an evident and intelligible (and expressed) justification for the Tribunal’s approach. On the applicant’s submissions to the Tribunal, birth registration was unlikely to be approved at all.
Further, the applicant submits that it was unreasonable for the Tribunal to find, in all of the circumstances, that the applicant could obtain a travel document, enter Malaysia, and register her birth. However, the Tribunal accepted at [69] that the applicant “may experience administrative difficulties in registering her birth” in Malaysia. In addition, it was open to the Tribunal to find that the applicant would be able to obtain a travel document to re-enter Malaysia as it held that she was, by operation of law, entitled to citizenship of that country. The applicant presented no evidence to the Tribunal that she, as the young daughter of her Malaysian citizen parents, would be prevented entry into Malaysia. There was information before the Tribunal (referred to expressly in the delegate’s reasons) that indicated that the applicant could return to Malaysia as a permanent resident.
Second ground
In respect of the second ground (Ground 3 of the application), the applicant contends that the Tribunal failed to give consideration to the evidence before it concerning the difficulties the applicant’s sister had experienced in obtaining registration of her birth as a Malaysian national.
The Tribunal set out the submissions made to it on the applicant’s behalf concerning the difficulties she had faced in registering her birth through the Malaysian Consulate at [24]. It acknowledged receipt of relevant correspondence from the Malaysian Consulate concerning this matter. The Tribunal wrote to the applicant under s 424A of the Migration Act inviting comment on particulars of country information, in particular a provision of the Malaysian Constitution that suggested the applicant was entitled to be a citizen of Malaysia by operation of law because she was born outside of Malaysia to a Malaysian parent. The applicant, through her representative, responded to the Tribunal’s invitation to comment. The response sidestepped the issue raised by the Tribunal concerning the applicant’s citizenship, and focussed again on the difficulties with registering her birth. The Tribunal put this apparent confusion to the applicant’s representative at the hearing.[20]
[20] [25]-[27]
The “evidence” the applicant submits was not considered appears to be the information provided in the applicant’s submission dated 5 April 2019.[21] The Tribunal extracted this information and addressed it at [29]. The Tribunal assessed the information before it, and its findings were open to it.
[21] CB 175
CONCLUSION
I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 6 May 2021
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