CQH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 517
•6 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CQH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 517
File number(s): SYG 1661 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 – whether the Tribunal should have adjourned the review pending the outcome of a related case considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 36, 427
Migration Regulations 1994 (Cth)
Cases cited: CPL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 519
ETT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 518
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408
Singh v Minister for Home Affairs [2019] FCAFC 3
Number of paragraphs: 27 Date of hearing: 17 March 2021 Place: Sydney Counsel for the Applicants: Mr O Jones Solicitors for the Applicants: Dobbie and Devine Immigration Lawyers Pty Ltd Counsel for the Respondents: Mr G Johnson Solicitors for the Respondents: Sparke Helmore ORDERS
SYG 1661 of 2019 BETWEEN: CQH19
First Applicant
CQI19
Second 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 4 July 2019 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 June 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are two applicants who are a mother and her daughter, who is a minor.
This matter was heard consecutively with the proceedings SYG 3154 of 2019[1] and SYG 1638 of 2019.[2]
[1] ETT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 518
[2] CPL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 519
Background facts in this matter are otherwise derived from the parties’ submissions.
Noting that the challenge is made by the second applicant through the first applicant as her litigation guardian, I will refer to the second applicant in these reasons as the applicant and the first applicant as the applicant mother.
The applicant mother is a citizen of Malaysia. The applicant, her daughter, was born in Malaysia in 2008. The applicant mother’s husband and another daughter are applicants in other proceedings before the Court (ETT19). The applicant mother has another daughter, who is the applicant in other proceedings before the Court (CPL19).
The following events are of importance:
(a)15 September 2016 – the applicants apply for the visa;[3]
(b)13 October 2017 – the delegate refuses the applicant mother a protection visa;[4]
(c)4 June 2019 – the Tribunal decides to affirm the delegate’s decision;[5] and
(d)4 July 2019 – the applicants apply to the Court for judicial review of the Tribunal’s decision.
[3] Court Book (CB) 50
[4] CB 174-202
[5] CB 244
As already noted, on 19 December 2016 the applicant mother applied for the protection visa. She claimed to fear harm if returned to Malaysia on the basis of her membership of various particular social groups: women in polygamous marriages, concubines, mothers of illegitimate children; and de facto spouses. The applicant claimed to fear harm if returned to Malaysia as the daughter of a concubine from a polygamist relationship.
On 13 October 2017 the delegate refused to grant the applicants protection visas.[6] The applicants applied to the Tribunal for review of the delegate’s decision.
[6] Court Book (CB) 174-202
On 4 June 2019 the Tribunal affirmed the decision under review.[7] The Tribunal was not satisfied that either of the applicants met the requirements for the grant of a protection visa under s 36(2) of the Migration Act 1958 (Cth) (Migration Act). In particular, the Tribunal did not accept at [46]-[47] as credible the applicant mother’s claim that she had a subjective fear of harm on account of being the wife of a man who was in a polygamous relationship. It also rejected at [55] her claim to fear harm on the basis of being imputed to be a single mother. It also did not accept at [64] her claim concerning familial and societal rejection on the basis of having given birth to a child in Malaysia without the presence of the child’s father.
[7] CB 244
The Tribunal’s reasons are lengthy. The application concerns specific aspects of those reasons. The applicants describe the bulk of the Tribunal’s reasons in general terms.
The Tribunal’s conclusions were as follows:
(a)the applicant mother did not face relevant harm on account of being in a polygamous relationship;[8]
(b)the applicant mother did not face harm on account of being a single mother in Malaysia;[9]
(c)the applicant mother did not face harm on account of having given birth to a child in Malaysia in the absence of the father;[10]
(d)the applicant mother did not face harm on account of being an imputed “concubine” or due to her partner’s migration history;[11]
(e)the applicant did not face harm in the sense of being unable to survive in Malaysian society;[12] and
(f)the applicant would be protected by the Malaysian authorities to the extent she would be living in a “distorted and chaotic society” upon her return and did not face harm on this account.[13]
[8] CB 255 [47]
[9] CB 256 [56]
[10] CB 258 [64]
[11] CB 258 [68]-[70], 260 [79]
[12] CB 264 [100]
[13] CB 267 [116]- 268 [117]
The Tribunal was mindful of the concept of a “family unit” for the purposes of a protection visa.[14] However, the Tribunal proceeded to exercise its jurisdiction, seemingly comfortable that, differently constituted, it would at some stage do the same with respect to the father and other daughter.[15]
[14] CB 259 [75]
[15] CB 261 [84]
I have before me as evidence the court book filed on 9 September 2019.
Procedural orders were made in this matter by Judge Barnes on 30 July 2019. At that time no litigation guardian was appointed for the applicant but I made an order by consent at the trial on 17 March 2021, appointing the applicant mother as litigation guardian. I note that the applicant mother filed an affidavit of consent in that regard on 4 July 2019.
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 4 July 2019. That application contains two grounds but only the first ground was pressed. That ground states:
1.The decision of the Second Respondent is legally unreasonable.
Particulars:
(A) The decision of the Second Respondent was legally unreasonable.
(i)The Second Respondent was aware that the First Applicant's partner and one of the First Applicant's children (being …, who is also the sister of the Second Applicant) 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 Act 1958 ('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 Applicants were persons to whom Australia owed protection obligations, under ss36(2)(b) and 36(2)(c) of the Act.
CONSIDERATION
Applicants’ contentions
The applicants rely on the submissions made in CPL19 and ETT19. The Tribunal’s consideration of the review for the father and other daughter effectively raised the question of an adjournment in the present case.
The applicants note that each would be a member of the family unit within the meaning of clause 866.221(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) when read with regulation 1.12.
Further, in order to take the benefit of that status, then, as in the related proceedings, it would be necessary for their review to remain pending before the Tribunal as presently constituted before the Tribunal as otherwise constituted made a decision.
The materiality of this error depends upon the submissions for the applicants in ETT19 being successful.
Minister’s contentions
The applicants advance a sole ground. They contend that the Tribunal’s decision is affected by jurisdictional error because the Tribunal failed unreasonably to adjourn the review pending the outcome of the review the Tribunal (differently constituted) was conducting in relation to the applicant’s husband and other daughter. The Minister submits that the ground cannot succeed.
It may be accepted that the Tribunal has discretion to adjourn the review from time to time.[16] Further, it may result in a constructive failure to exercise jurisdiction if the Tribunal fails unreasonably to exercise that power.[17] The test for unreasonableness is necessarily stringent because the Courts will not lightly interfere with the exercise of a statutory power involving an area of discretion.[18] Ultimately, the question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker. The question involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power.[19]
[16] Migration Act, s 427(1)(b)
[17] Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
[18] Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [11] (Kiefel CJ)
[19] Singh v Minister for Home Affairs [2019] FCAFC 3 at [61] (Reeves, O’Callaghan and Thawley JJ), citing Stretton and SZVFW at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J)
In the circumstances of the present case, there was no unreasonable failure by the Tribunal to adjourn the review. Not only did the applicant and applicant mother elect to pursue their own application for a protection visa, in which each of them asserted their own claims for protection, and expressly did not seek to meet the requirements for the grant of the visa as members of the family unit of either the applicant mother’s husband or other daughter, but neither of them requested that the Tribunal adjourn the review for this (or any other) reason. The applicants were represented before the Tribunal by a migration agent and may be taken to have been advised of their options in conducting the review. Whilst it is not necessary in all cases for an adjournment to be sought by a review applicant in order to permit a finding of a legally unreasonable refusal to adjourn, the absence of any request is a relevant factor.
In any event, any such adjournment would have been immaterial to the outcome because the father and other daughter were ultimately unsuccessful in their review (the Tribunal affirmed the decision under review in that matter on 4 November 2019). That the father and other daughter have sought judicial review in this Court of the Tribunal’s decision in their case is not a matter the Tribunal in the present case needed to take into account for the purposes of the exercise of its discretionary powers.
In the circumstances, it cannot now be said to have been legally unreasonable for the Tribunal not to have adjourned the review.
Resolution
I agree with and adopt the Minister’s submissions at [22] and [23] above. Further, the applicants in ETT19 having failed, this application must also fail.
CONCLUSION
The applicants have failed to establish 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 twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 6 May 2021
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