Cuh20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1309
•10 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CUH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1309
File number: PEG 177 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 10 June 2021 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal’s decision was unfair or unreasonable – whether the Tribunal is required to consider compassionate and compelling circumstances – whether the applicant’s delay in filing visa application was a factor – persons who are owed protection – whether the Tribunal was biased – whether the Tribunal failed to consider material relevant to the applicant’s claims – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth), ss 5AAA, 36, 423A, 424, 476 Cases cited: Craig v State of South Australia (1995) 184 CLR 163
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 113 Date of hearing: 9 June 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr J Papalia Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 177 of 2020 BETWEEN: CUH20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
9 JUNE 2021
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the second respondent quashing the decision dated 19 May 2020.
2.A writ of mandamus issue, remitting the matter to the second respondent and requiring the second respondent (differently constituted) to reconsider and determine the applicant’s application for review according to law.
3.Written reasons for judgment be published from Chambers at a later date.
4.The first respondent pay the applicant’s costs as entitled as a self-represented litigant.
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
This matter was listed before the Court for a final hearing on 9 June 2021. The applicant appeared in person. Mr Papalia appeared on behalf of the Minister. During the course of the hearing, an issue was raised (in part by the applicant in his oral submissions and by the Court) in relation to the Tribunal’s failure to consider material. After hearing from Counsel for the Minister (who conceded that the Tribunal had erred), the Court was satisfied that the Tribunal had fallen into jurisdictional error.
In the circumstances, the Court made the following orders:
1.A writ of certiorari issue directed to the second respondent quashing the decision dated 19 May 2020.
2.A writ of mandamus issue, remitting the matter to the second respondent and requiring the second respondent (differently constituted) to reconsider and determine the applicant’s application for review according to law.
3. Written reasons for judgment be published from Chambers at a later date.
4.The first respondent pay the applicant’s costs as entitled as a self-represented litigant.
These reasons for judgment are those referred to in order 3. They explain why the Court is of the view that the Tribunal fell into jurisdictional error.
BACKGROUND
The applicant is a citizen of Zimbabwe. He first arrived in Australia as the holder of a student visa in August 2008 (Court Book (“CB”) 290). He was granted further student visas in 2010, 2012 and in 2013 (CB 289). He has thereafter remained on bridging visas.
On 20 May 2016, the applicant applied for a Protection (subclass 866) visa (the “visa”) (CB 137-188). The applicant claimed that:
(a)he left Zimbabwe so that he could study and make a better life for his family;
(b)he escaped during a time of political violence;
(c)if he returns, he will find life difficult socially and economically;
(d)he has spoken out against the government on social media;
(e)on two occasions (when he had returned to Zimbabwe) he was harassed because of his association with an opposition leader;
(f)the applicant’s family supported the MDC party; and,
(g)the things that he saw during the election before he left have caused him to suffer mentally.
The applicant attended an interview before a delegate of the first respondent (the “Minister”) on 24 October 2016 (CB 206).
On 10 November 2016, the applicant provided a supporting statement to the then Department of Immigration and Border Protection (the “Department”) (CB 210-215).
On 23 January 2017, a delegate of the Minister refused to grant the applicant the visa
(CB 220-232). The delegate found that the applicant had a right to enter and reside in Uganda and had not availed himself of that right. Accordingly, the delegate refused to grant the applicant the visa.
Following the visa refusal, the applicant applied for a bridging visa. He provided further statements with that application that explained his delay in applying for the visa and why he cannot return to Zimbabwe (CB 233-252).
On 8 February 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 253-260).
On 1 March 2017, the applicant provided a submission to the Tribunal (CB 264-266). A letter of endorsement from the applicant’s local Member of Parliament was also provided to the Tribunal by the Department on 15 March 2017 (CB 267-270).
The applicant provided further information to the Tribunal on 16 January 2019 and 22 January 2019 (CB 271-284).
The applicant attended a hearing before the Tribunal on 12 August 2019 (CB 309-311).
The applicant provided further submissions, information and material to the Tribunal on 20 August 2019 and 24 August 2019 (CB 326-343).
The applicant attended a further hearing before the Tribunal on 12 September 2019 (CB 343-345).
On 8 October 2019, the applicant provided further submissions to the Tribunal (CB 369-377).
The applicant attended a further hearing before the Tribunal on 9 October 2018 (CB 378-380).
The applicant then provided further submissions on 31 October 2019 (CB 387-390).
A further hearing was attended by the applicant on 5 November 2019 (CB 391-392).
Further submissions were again provided on 18 November 2019 and 20 November 2019 (CB 393-401).
On 29 April 2020, the Tribunal invited the applicant to comment or respond to the following information (CB 401-404):
The particulars of the information are:
In addition to the General Country Information surveyed in the delegate’s decision record refusing your original application for protection, the Tribunal draws your attention to the Country Information surveyed by and findings made by the delegate in the first instance in the attached decision record specifically applicable to your ability to enter and reside in a third country other than Zimbabwe before applying for protection in Australia on 26 May 2016 (See pages 6-11). The Tribunal notes that this decision record was provided to the Tribunal by you at the time of your review application.
As discussed with you at the hearings, the Tribunal particularly notes your travel history prior to 26 May 2016, prior to your application for protection.
The Tribunal draws your attention to the following extract from s.36 of the Act:
…
The Country Information and findings relating to available third country protection that are recorded in the attached decision record by the delegate in the first instance referred to above, is information, which if accepted, would be the reason or a part of the reason, for affirming the decision that is under review.
This is because, if the Tribunal were to accept the applicability of the Country Information surveyed in that decision and the subsequent validity of the findings made by the delegate in reliance on that Country Information, it could lead to a finding by the Tribunal that you are excluded under ss.36(3)-(5A) of the Act from being granted protection in Australia.
You are invited to give comments on or respond to the above information in writing.
On 12 May 2020, the applicant provided a response to the Tribunal (CB 405-406).
A further response was sent on 16 May 2020 (and received by the Tribunal on 18 May 2020) (CB 407). The Tribunal advised the applicant that none of the references in the submission related to the subject of “third country protection” (CB 412).
On 19 May 2020, the Tribunal affirmed the delegate’s decision to refuse the applicant the visa (CB 415-439).
The applicant applied for judicial review of the Tribunal’s decision in this Court on 18 June 2020. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 25 pages long and spans 93 paragraphs. Three pages comprise of relevant legislative provisions.
The Tribunal began by identifying the type of visa under review and explained that the delegate had refused the visa on the basis that the applicant was found to have a right to enter and reside in Uganda (at [1]-[3]).
The Tribunal then summarised the criteria relevant to a visa of this sort (at [4]-[8]),
The Tribunal set out and explained in detail s 36(3)-(5A) of the Act as follows:
9. The Tribunal notes that s.36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by ss.36(3), (4), (5) and (5A) of the Act…
…
10. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either ss.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.
11. The Full Federal Court in MIMAC v SZRHU (2013) 215 FCR 35, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
12. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of ss.36(4), (5) or (5A).
The Tribunal also noted that it had had regard to the relevant country information (at [14]).
The Tribunal then detailed the applicant’s migration history and identified the types of visas the applicant had been granted, whether or not he had commenced his studies and when he had returned to Zimbabwe (at [15]-[23]).
The Tribunal noted that the applicant had attended four hearings and did not require an interpreter (at [24]-[25]).
The Tribunal accepted that the applicant was a citizen of Zimbabwe and that Zimbabwe would be his receiving country (at [26]-[27]).
The Tribunal continued:
28. The issue in this case is whether the applicant satisfies the requirements for a protection visa in Australia for the essential and significant reason of his actual or imputed political profile as a supporter of the opposition Movement for Democratic Change (MDC) Party, his actual or imputed political profile as an opponent of the Zimbabwean African National Union – Patriotic Front (ZANU-PF) either through his personal or family association with that party in Zimbabwe and while in Australia; or otherwise as a failed asylum seeker if he were to return to Zimbabwe. In the alternative, whether the applicant satisfies the requirements for a protection visa in Australia on complementary grounds for economic reasons if he were to return to Zimbabwe, now or in the reasonably foreseeable future.
The Tribunal then summarised the principles that are relevant to the assessment of the applicant’s credibility and the relevant Tribunal guidelines (at [30]-[46]). The Tribunal highlighted s 5AAA of the Act and s 423A of the Act – which require an applicant to present all claims at the outset of their application (at [47]-[50]). The Tribunal then referred to ss 36(3) and 36(5) of the Act and outlined the legal principles relevant to the operation of those statutory provisions (at [51]-[57]).
The Tribunal noted that it had read the available country information relevant to economic co-operation and freedom of movement in the southern region of Africa. It identified that there are a number of formal regional agreements in place, including the COMESA and the SADC. However, it stated that these agreements cannot be relied upon in an uncritical manner as a basis for finding that third country protection is necessarily available to the applicant (at [58]).
On the face of the country information, the Tribunal determined that the applicant might have had a right to enter and reside in another country prior to his arrival in Australia. However, the Tribunal noted that it must take a cautious approach in relation to an applicant’s particular circumstances and referred to a different decision of the Tribunal regarding various agreements in countries in the southern region of Africa (at [59]-[60]).
The Tribunal then detailed the delegate’s finding and noted that the country information surveyed by the delegate about the SADC was reasonably detailed. The delegate also highlighted that “non-resident, visa-free travel is possible between Mozambique and the countries of Botswana, Malawi, Mauritius, Swaziland, South Africa, Tanzania, Zambia and Zimbabwe” (at [61]). Further, the delegate noted that the COMESA allowed right of entry for business purposes between member countries of up to 90 days (at [62]). The Tribunal noted that the basis on which the delegate refused the visa was that Kenya and Uganda allowed exemptions for Zimbabwean citizens who wish to enter those countries without a visa.
The Tribunal continued:
63.The delegate then surveyed relevant contemporaneous country information, suggesting that Kenya and Uganda allowed exemptions for Zimbabwean citizens who wish to enter those countries without a visa. The delegate considered the ability of an individual Zimbabwean to ‘reside’ in Uganda, for the purposes of s.36(3) of the Act, as this might apply to a person in the applicant’s circumstances. The delegate, thereafter, took some care to consider whether or not the applicant was excluded from applying for protection in Australia by virtue of s.36(3) of the Act, and found that available country information suggested that this was indeed the case.
64.It was on this basis that the delegate refused to grant a protection visa to the applicant in the first instance.
The Tribunal noted that it was unclear to what extent information relating to freedom of entry and residence in Kenya and Uganda was put to the applicant by the delegate (at [65]).
The Tribunal then explained that it had advised the applicant that his multiple voluntary return visits to Zimbabwe raised potential credibility issues (at [66]). Relevantly, it was noted that the applicant had advised that he returned for personal and family reasons (at [67]).
The Tribunal found that the applicant had not returned to Zimbabwe to engage in political activism. The Tribunal noted the applicant had provided evidence about a car accident while in Zimbabwe and it accepted that evidence (at [68]).
The Tribunal accepted that the applicant was friendly with one or more MDC activists in his local area in Zimbabwe and that he had reconnected with them during his return visits. However, the Tribunal did not accept that the applicant had ever been actively involved in MDC political activism in Zimbabwe. It was noted that during the hearings and throughout the applicant’s submissions he had shown a genuine awareness of political violence in Zimbabwe since 2006 consistent with available country information (at [69]).
The Tribunal detailed that since approximately 2016, the applicant had been involved in various online forums and community events while in Australia that the Tribunal characterised as “pro-MDC”. It accepted that this material may have become known to authorities in Zimbabwe but determined that this would not have been of significance to persons located outside of Zimbabwe (at [70]).
The Tribunal then explained that it had invited the applicant to comment or respond to information about third country protection (at [71]). The Tribunal set out the applicant’s response and noted that he had not meaningfully engaged with the question of effective third country protection. Rather, his submissions related to “his claimed political profile with Zimbabweans in Zimbabwe”. The Tribunal explained that, even if the Tribunal were to accept the applicant’s claims, there was nothing in the evidence to suggest that the applicant’s support of the MDC would be “remarkable to any person in any other relevant third country” (at [75]).
The Tribunal determined that the issue before it was whether the applicant could access third country protection for the purposes of s 36(3) of the Act (at [76]). The Tribunal again set out s 36(3) and noted the caveats in ss 36(5) and 36(5A) of the Act (at [77]-[78]). The Tribunal referred to relevant case law which indicated that the temporary period of residence contemplated by s 36(3) of the Act need not be linked with protection obligations (at [80]).
The Tribunal continued:
81. The applicant has demonstrated some understanding of the freedom of movement which applies in the region of Africa within which Zimbabwe is located. This freedom of movement is exemplified in formal regional agreements including the EAC, COMESA and SADC discussed above. I note that this freedom of movement has not been refuted by the applicant in response to my invitations to comment.
82. On the basis of the country information surveyed above, I find that the applicant has ‘a right to enter and reside in’ Uganda in the sense contemplated by s.36(3) of the Act.
83. On the basis of the country information discussed above, I further find that the applicant does not have an objectively well-founded basis to fear being returned to Zimbabwe from Uganda in the sense contemplated by s.36(5) of the Act.
84. I find, based on the available country information and the evidence provided to me by the applicant, that he does not have a well-founded fear of harm in Uganda from any person or for any reason, now or in the reasonably foreseeable future in the sense contemplated by s.36(5A) of the Act.
85. I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of a right to enter and reside in Uganda, there would be a real chance that the applicant will suffer serious harm in Uganda from any person or for any reason, now or in the reasonably foreseeable future. I further find that are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of a right to enter and reside in Uganda, there would be a real risk that the applicant will suffer significant harm in Uganda from any person or for any reason, now or in the reasonably foreseeable future.
86. Accordingly, I find that Australia does not have protection obligations in respect of the applicant by virtue of the relevant consideration under s.36(3) of the Act.
The Tribunal continued:
COVID-19-related claims
87. It is acknowledged that the international public health crisis arising from the current COVID-19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia. I note that this decision is not a decision on removal. However, I am also mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future. Accordingly, for the removal of doubt, I find that whatever measures may be applicable to the population of Zimbabwe generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.
Mental health-related claims
88. I note that, on a number of occasions, the applicant has mentioned that he suffers from symptoms of anxiety and depression. The applicant confirmed at the hearing on 5 November 2019 that he had been advised to seek assistance with these symptoms but that he did not do this. I acknowledge that his circumstances may be a source of concern to the applicant. However, I note accessibility of mental health care services in a receiving country is not an intentional act or omission for the purposes of complementary protection provisions.
The Tribunal concluded that the applicant had a right to enter and reside in Uganda (at [89]). Further, the Tribunal determined that the applicant did not have a well-founded fear of harm in Uganda and there was not a substantial reason for believing that the applicant was at a real risk of significant harm in Uganda (at [90]).
Finally, the Tribunal found:
91.The Tribunal also finds that the applicant does not have a well-founded fear of being returned from Uganda to a country where he has a well-founded fear of being persecuted. Nor does the applicant have a well-founded fear of being returned by Uganda to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm.
As s 36(3) of the Act excluded the applicant from being owed protection obligations, the Tribunal affirmed the delegate’s decision (at [92]-[93]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed on 18 June 2020 contains 7 “grounds of review” as follows:
1. The assessment was unfair because my life is under threat and persecution but I can’t get protected.
2. They failed to consider the compassion of my case.
3. I deserve to be protected even tho my time of application took long.
4.The factor that life has changed or situation from the time of arrival, that should not cancel the grants of my visa.
5. I believe when people are not safe to go back to their country of origin Australia must be able to grant protection.
6. The member of AAT was quite harsh and biased in dealing with my case.
7. I deserve a reassessment of my application.
The applicant was given an opportunity to file any amended application, supporting affidavits and an outline of written submissions. No further materials were filed.
The materials before the Court thus include the application for judicial review filed on 18 June 2020, a Court Book numbering 439 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 21 May 2021.
The applicant appeared before the Court without legal representation. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Noting the remarks of the Federal Court in particular in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong”.
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that the Tribunal failed to address all of the evidence before it, behaved harshly and aggressively towards him when asking questions and, generally, seemed to have made its mind up before hearing all of the evidence before it.
CONSIDERATION
In its duty to assist self-represented litigants, the Court has addressed all grounds as articulated and interpreted them broadly to ensure that, to the extent that possible legal error is identified, it can be scrutinised: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
Ground 1
Ground 1 provides:
The assessment was unfair because my life is under threat and persecution but I can’t get protected.
The mere fact that the applicant cannot get protection does not make the Tribunal’s decision unfair or unreasonable.
Here, the Tribunal did not find that the applicant’s life would not be under threat in Zimbabwe. Rather, the Tribunal determined that the applicant could enter and reside in Uganda. In that regard:
(a)the Tribunal determined that the applicant did not have a well-founded fear of harm in Uganda. Nor were there reasons to believe that the applicant would face a real risk of significant harm;
(b)the Tribunal found that Uganda would not return the applicant to a country where he might face persecution; and
(c)the Tribunal determined that the applicant did not have a well-founded fear that Uganda would return him to a country where he might be at a real risk of significant harm.
The applicant was, accordingly, taken as not being owed protection by Australia as per s 36(3) of the Act. No error arises in this regard.
Insofar as the applicant believes that the Tribunal acted in an “unfair” manner, the Court notes as follows.
The Tribunal exercised the power in s 424 of the Act to obtain information from the Minister in relation to the applicant’s previous visas (CB 298-299). The Tribunal “had regard” to that information as per s 424(1) of the Act and summarised its content (at [15]-[23]). It was unnecessary for the Tribunal to put this information to the applicant as it was not a reason or part of a reason for affirming the delegate’s decision and it was information included in the delegate’s decision in any event (CB 220-221).
It is noted that the letter dated 29 April 2020 sent to the applicant indicated that it was a request to “provide information” (CB 402). It was not. It was a request to comment or respond to information. While arguably confusing, the erroneous reference to a request to provide information was not material. It did not have any prejudicial effect for the applicant and did not mislead him in any way. It was an erroneous, albeit unfortunate, oversight.
The Tribunal exercised the power under s 424A of the Act to invite the applicant to comment or respond to information that would be the reason for affirming the delegate’s decision. That information, relevantly, was the country information cited in the delegate’s decision as relevant to the applicant’s right to enter or reside in a third country. The invitation to provide information complied with the requirements of s 424B of the Act. It identified and provided the particulars of the information and explained why it was relevant to the review. The correct timeframe for a response was indicated and, notably, the applicant provided a response.
The Court notes that even if there was an error in the request under s 424A of the Act, it would not be material. The “information” that the Tribunal put to the applicant was not “information” for the purposes of s 424A. As the Tribunal noted, the information was country information and it was also information provided in the delegate’s decision. It was, therefore, information that was exempt under s 424A(3)(a) and (b) of the Act. While the Tribunal did not need to put the information to the applicant, doing so does not amount to jurisdictional error. It was, in many regards, a “positive” from the perspective of the applicant as it allowed him to better understand and respond to the issue under review.
The applicant attended four hearings before the Tribunal. The total combined duration of the hearings was over 2 hours in length. Further, the determinative issue was the same as that which was before the delegate. As such, the Tribunal was not required to put the applicant on notice: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. It cannot be said in the circumstance of this case that the applicant was “caught off guard”.
Finally, there is nothing to suggest that the Tribunal was required to exercise a discretion to allow further time for the applicant. Here, the Tribunal appears to have done everything it could have done to give the applicant as much time as possible to present evidence and arguments.
There was nothing “unfair” in this regard.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
They failed to consider the compassion of my case.
“Compassion” is not a relevant consideration for the Tribunal in matters of the sort addressed here. The criteria for the grant of the protection visa do not provide for a consideration of compassionate and compelling circumstances.
Ground 2 is, accordingly, dismissed.
Ground 3
Ground 3 provides:
I deserve to be protected even tho my time of application took long.
Ground 3 argues that the applicant deserves protection despite the fact that he applied for the protection visa some eight years after he first arrived in Australia. It is noted that delegate raised concerns with the applicant’s delay in applying for protection (CB 224 at [4]) and the applicant made a number of submissions explaining the “delay in seeking asylum” (CB 240-245, 249-252, 256-259).
The Tribunal made no reference to the applicant’s delay in applying for the visa. It made no adverse finding and formed no adverse view on the delay. Accordingly, no jurisdictional error arises as the fact that the applicant took a long time to make an application did not arise for consideration by the Tribunal.
Ground 3 is, accordingly, dismissed.
Ground 4
Ground 4 provides:
The factor that life has changed or situation from the time of arrival, that should not cancel the grants of my visa.
Ground 4 is incorrect in law. The Tribunal is required to assess an applicant’s claims at the time that the decision is made: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288. It is not at the time that the applicant left his country or at the time that the visa application is lodged.
Accordingly, the fact that the applicant’s own personal circumstances may have changed or the situation in Zimbabwe may have changed are therefore relevant considerations that may mean that the applicant does not meet the criteria and is refused the visa.
Furthermore, the Tribunal made no observations whatsoever about changed circumstances or conditions. Accordingly, there is no basis to find jurisdictional error in that regard in any event.
Ground 4 is dismissed.
Ground 5
Ground 5 provides:
5. I believe when people are not safe to go back to their country of origin Australia must be able to grant protection.
When people are found not to be safe in their country of origin (such that they meet the requirements of s 36(2) of the Act, Australia is able to grant them protection. However, the legislation has a number of key elements. One of those is that, if an applicant can enter or reside in a third country, then (subject to certain conditions in s 36(4)-(5A)), the applicant will not be owed protection.
As noted above, while the applicant may not agree, the concerns he raises here do not indicate jurisdictional error on the part of the Tribunal. The legislation is clear in identifying when a person will be owed protection.
Ground 5 is, accordingly, dismissed.
Ground 6
Ground 6 provides:
6. The member of from AAT was quite harsh and biased in dealing with my case.
The applicant repeated these concerns in oral submissions to the Court.
It is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
The applicant has not advanced any evidence in support of his assertion that the Tribunal was biased. He says that the Tribunal acted harshly towards him and was aggressive in its demeanour and approach.
Without a transcript of the hearing the Court is confined to determining from the face of the decision record if there were interpretive errors at the Tribunal hearing.
Having close regard to the Tribunal’s decision, there is nothing to indicate any form of bias. Here:
(a)the Tribunal conducted four hearings during which the applicant was given ample opportunity to give evidence and present arguments. The Tribunal put the applicant on notice of issues of concern early on and gave him time to consider any responses (see, [66]);
(b)the Tribunal was of the view that the applicant did not properly understand that the critical issue before it was whether he had the right to enter and reside in a third country (at [71]). Accordingly, the Tribunal put the issue to the applicant in writing so that he could properly respond;
(c)the Tribunal accepted the applicant’s evidence regarding what had occurred on his return visits to Zimbabwe (at [68]-[69]).
There is no evidence of bias or impartiality on the part of the Tribunal here.
Ground 6 is, accordingly, dismissed.
Ground 7
Ground 7 provides:
7. I deserve a reassessment of my application.
Ground 7 does not identify jurisdictional error. It is a plea for relief. The fact that the applicant believes he deserves a reassessment does not mean he is entitled to one. He must first establish jurisdictional error.
Ground 7 is, accordingly, dismissed.
Otherwise
In its duty to assist self-represented litigants, the Court has remained astute and alert to the possibility of error on the part of the Tribunal: MZAIB. The applicant raised concerns before this Court that the Tribunal ignored his evidence about “the situation in Uganda”. For the reasons that follow, the Court shares those concerns.
The Tribunal determined that the applicant had not provided any meaningful response to the issue of third country protection, as follows:
75.It is clear from this submission that the applicant has not engaged meaningfully with the question of effective third country protection. All of his submissions relate to his claimed political profile with Zimbabweans in Zimbabwe. Even if I were to accept the applicant’s claims in this respect on terms in which he has presented them, there is nothing in the evidence presented by the applicant or in his detailed claims to suggest that his support of the MDC reaches a level that would be remarkable to any person in any other relevant third country.
This is incorrect.
Notably, in a submission made to the Tribunal on 1 March 2017 (CB 266), the applicant stated:
38. Uganda experiences difficulties in the achievement of international standards of human rights for all citizens. Uganda has high human rights violation due to poor sanitation facilities, internal displacement and development of adequate infrastructure, injustice politically, high violence in north Uganda and corruption which is known internationally. Uganda is never one of the safe countries to live in in Africa under COMESA. Uganda doesn’t offer permit residency to Zimbabweans “Protection Visa” neither work rights – I have checked with their embassy. So information addressed by immigration under subsection 36(3) is wrong.
- None of the COMESA or SADC country members is offering Zimbabweans protection visa grants. With over 95% unemployment, No water, food, electricity, poor roads, medical facilities, education systems and sewage system if any of these countries was offering residency all Zimbabweans would have left the country easily.
Nowhere does the Tribunal address or refer to this submission.
Section 36(3)-(5A) of the Act provides:
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
At [85], the Tribunal, arguably referencing section 36(4) of the Act, states:
85. I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of a right to enter and reside in Uganda, there would be a real chance that the applicant will suffer serious harm in Uganda from any person or for any reason, now or in the reasonably foreseeable future. I further find that are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of a right to enter and reside in Uganda, there would be a real risk that the applicant will suffer significant harm in Uganda from any person or for any reason, now or in the reasonably foreseeable future.
The applicant’s submissions at CB 266 are undeniably relevant to s 36(4) of the Act. They go to the issue of whether the applicant faced a real chance of harm or real risk of harm in Uganda. The applicant’s submissions raise issues of “human rights violations”. He refers to “poor sanitation facilities, internal displacement and development of adequate infrastructure, injustice politically, high violence in north Uganda and corruption”, as well as an inability to work.
At the very least, the Tribunal was required to consider the applicant’s submissions in this regard. The delegate discussed the situation in Uganda (CB 228-230). The Tribunal did not. It needed to. The applicant’s evidence was directly and unequivocally on point. If the Tribunal chose to reject the applicant’s evidence, that was its prerogative. But it needed to say why it did so. Here there is no “why”. The “analysis” or conclusion simply “floats” without any reference to information that arguably tests the Tribunal’s overall conclusion that no harm would result if the applicant returned to Uganda.
The Tribunal’s approach in this regard is flawed. The Tribunal has failed to consider material directly relevant to the applicant’s claims for protection and has, accordingly, fallen into jurisdictional error – a conclusion with which counsel for the Minister agreed when addressing this Court.
The matter was, accordingly, remitted for reconsideration.
CONCLUSION
While the application for judicial review filed on 18 June 2020 did not identify any jurisdictional error on the part of the Tribunal, the applicant at the hearing raised in part and Court has nonetheless identified an error and notes the agreement of counsel for the Minister in this regard. The application must be, and was, accordingly, allowed.
The Tribunal’s decision dated 20 May 2020 was set aside. The application was remitted to the Tribunal, differently constituted, for rehearing.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 June 2021
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