DCO16 v Minister for Immigration
[2017] FCCA 3113
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DCO16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3113 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to re-open case – tender and rely on partial transcript of Tribunal hearing – leave to re-open refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 424AA, 438 |
| Cases cited: AVO15 v Minister for Immigration & Border Protection [2017] FCA 566 | ||
| Applicant: | DCO16 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2868 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 23 November 2017 |
| Date of Last Submission: | 1 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| The applicant appeared in person by his litigation guardian. |
| Counsel for the First Respondent: | Ms N Laing |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The first respondent’s application to re-open his case is refused.
A writ of certiorari issue quashing the decision of the second respondent dated 29 September 2016.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 18 March 2015 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2868 of 2016
| DCO16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant was born on 15 May 2013 in Griffith, New South Wales to parents of Indian nationality. On 10 June 2014, when the applicant was barely one year of age, his parents lodged an application for a protection visa on his behalf. On 18 March 2015, a delegate of the Minister made a decision to refuse to grant the applicant a visa. The applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision. On 17 August 2016, the applicant and his mother appeared before the Tribunal and the applicant’s mother gave evidence and made submissions on his behalf. On 29 September 2016, the Tribunal affirmed the decision of the delegate. The applicant now seeks judicial review of that decision. His mother was appointed litigation guardian and appeared for the applicant at the hearing of the matter.
Background
The applicant’s mother is a Sikh and met the applicant’s father, a Hindu, in 2007. She claimed to have become aware of the religion of the applicant’s father only shortly before they were married and that he converted to Sikhism in the days following the marriage.
The applicant’s parents first arrived in Australia on 16 April 2009 as holders of student visas. The applicant’s mother returned to India on 26 August 2009 and gave birth to the applicant’s sister on 15 March 2010. During her visit, the mother stayed with her sister rather than in her home village. The mother returned to Australia on 15 March 2010 with the applicant’s sister remaining in India.
The applicant’s parents applied for protection visas on 23 December 2011. A delegate of the Minister refused the application and that decision was affirmed by the Refugee Review Tribunal[1] (RRT). The applicant’s parents then applied for judicial review of the RRT’s decision and were unsuccessful in both this Court and the Full Court of the Federal Court. The applicant’s parents were also unsuccessful in their request for Ministerial intervention.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The applicant claimed that he feared harm upon returning to India on the basis of his parents’ inter-caste and inter-faith marriage and that as a result he was considered untouchable and a sin and would be targeted by both families.
However, at the Tribunal hearing the applicant’s mother stated that the applicant did not fear harm from his grandparents but from Hindu religious people. The applicant’s mother further claimed that, at the request of leaders of the Hindu community, a person came to her mother’s house seeking that the applicant’s parents present themselves so they could be harmed for their marriage and conversion.
The Tribunal made its decision on 29 September 2016 affirming the delegate’s decision.
Tribunal’s decision
The Tribunal did not accept that the applicant would face harm for reason of being a child of an inter-caste and inter-faith marriage because it did not consider the claims made on behalf of the applicant to be either credible or substantiated by the evidence.
In its reasons, the Tribunal set out eleven matters which it considered gave rise to concerns about the applicant’s claims. It will be necessary to consider one of those concerns in some detail later in these reasons. For present purposes, it is sufficient to note that the Tribunal concluded that due to those “multiple concerns” it did not accept that the applicant was the child of an inter-faith and an inter-caste marriage or would be at risk of harm in India from any person or for any reason. Having rejected all of the applicant’s claims, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and so affirmed the delegate’s decision.
Consideration
There are two grounds in the application that are formulaic and have little, if anything, to do with the facts of this case.
First ground
The first ground is that (without alteration):
1.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India.
The applicant’s claims to fear significant harm were based on factual claims which were all rejected by the Tribunal. In light of its rejection of those claims, the Tribunal was not required to, and did not consider, whether the harm feared amounted to significant harm within the meaning of s.36(2A) of the Migration Act 1958 (Cth) (Act). This ground has nothing to do with the Tribunal’s decision and is rejected.
Second ground
The second ground is that the Tribunal failed to comply with s.424A of the Act. The applicant asserts that the Tribunal did not provide any written particulars of information. He does not specify what that information was and ignores the fact that the Tribunal, both sent a letter to him giving particulars of information it considered would be the reason, or part of the reason, for its decision and gave oral particulars of such information to the mother at the hearing: see [18]-[20] and [28]-[29] of the Tribunal’s reasons. Further, there was no evidence to support the conclusion that, at the hearing, the Tribunal did not give particulars of whatever other information fell within s.424A(1) and otherwise did not follow the procedure set out in s.424AA of the Act. This ground is rejected.
Further issues
Two further issues arise in this matter that were not raised by the applicant:
a)first, there was a certificate before the Tribunal purportedly given under s.438 of the Act (certificate) but which was invalid; and
b)secondly, there is a question whether one of the reasons for which the Tribunal rejected the applicant’s claims was based on a misunderstanding of the law.
Certificate purportedly issued under s.438 of the Act
The certificate was invalid because it was based on the fact that the documents to which it related to, contained information relating to an “internal working document and business affairs”: MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081. The effect of the invalidity depends on the circumstances of each case, particularly the effect of the departure from s.438(1) of the Act on the decision under review, including whether or not the documents said to be covered by the certificate could be regarded as material to the decision under review: Minister for Immigration & Border Protection v CQZ15 [2017] FCAFC 194 at [76].
The certificate related to the following documents:
a)a confirmation of an on-site interpreting request;
b)a print out of electronic records concerning the visa and travel history of the applicant’s parents; and
c)a photocopy of a compact disc.
None of those documents had anything more than a passing contextual relevance to the issues before the Tribunal and, for that reason, I consider that there was no unfairness in the non-disclosure of them or the certificate to the applicant: AVO15 v Minister for Immigration & Border Protection [2017] FCA 566.
Tribunal’s fifth concern about the applicant’s credibility
The second further issue was raised by the Court at the hearing and the parties were given time to file supplementary submissions in respect of it. The issue requires examination of the fifth concern which the Tribunal had about the applicant’s credibility, and which was set out in the following paragraph of its reasons:
21.Fifthly, there is the delay in lodging the application for Protection by the applicant. The applicant was born on 15 May 2013, he was not included in the Protection application of his parents, and it was not until 10 June 2014 that a claim was made on his behalf. The applicant mother claimed that she was not sure whether they could include the applicant in their application or not. The Tribunal asked whether she had sought any advice on this matter and she claimed that she had not. The Tribunal has difficulty accepting this response when at the time the applicant mother was pregnant with the applicant she appeared before the RRT, after he was born she took the matter to the Federal Circuit Court and Full Federal Court. The Tribunal considers it improbable that while ensconced in this process of review of her migration status she did not make enquiries about the situation for the applicant. It was only when the applicant’s parents had exhausted their opportunities for review of their Protection application, and after their application for Ministerial Intervention had been finalised, that an application was made on behalf of the applicant. The Tribunal considered that the delay was suggestive of the fact that the application under review was part of a strategy by the applicant parents to remain in Australia, and that the application was contrived. Further the delay in lodging the applications demonstrated that his parents did not have any genuine fear of harm for the applicant if he returned to India when he was born.
It is open to question whether there is any logical justification for the conclusion in this paragraph. It is almost beyond question that, had the parents been successful in their application for either a protection visa or Ministerial intervention, the applicant himself would have been entitled to remain in Australia. However, that is not the issue that arose at the hearing and it is unnecessary to consider it further.
The issue that arose at the hearing, and which has been addressed by the parties in supplementary submissions, is whether the Tribunal wrongly acted on the basis that it was possible for the applicant to be joined to his parents’ protection visa application, given that he was only born after it had been refused and that the decision had been affirmed on review.
The Minister conceded that such an understanding would have been wrong. In light of that concession, it is unnecessary to examine the intricacies of when, where and how valid applications for visas must be made: cf. SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487; [2008] FCAFC 91; Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495; [2000] FCA 906; Phanouvong v Minister for Immigration & Multicultural Affairs (1999) 60 ALD 438; [1999] FCA 1489; Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486; [2000] FCA 1456.
The issues are first, whether the Tribunal actually had that understanding, and secondly, if so, whether that infected its decision with jurisdictional error.
The Minister submitted that properly understood, [21] of the Tribunal’s reasons shows that the Tribunal did not proceed on the basis that it was possible for the applicant to be joined to his parents’ visa application. The Minister sought leave to re-open his case in order to rely on a partial transcript of the Tribunal hearing which, he submitted, supported that submission.
I refuse the application to re-open for the following reasons:
a)first, I have significant doubts that what the Tribunal says at a hearing is admissible to prove what its reasons for decision were, and the Minister did not point to any authority to establish that it would be admissible for that purpose; and
b)secondly, in any event, I would refuse leave to re-open because the part of the transcript relied on by the Minister does not establish that the Tribunal properly understood the law.
The Minister relies on the following statement by the Tribunal made to the applicant’s mother at the hearing:
… I don’t accept that response because you were already trying to pursue an application in the migration system for protection. You had experience with the Department. I put to you that if you had genuine concerns about your son, you would have lodged an application on his behalf very soon after he was born.
This passage, if accepted as an accurate record of what the Tribunal said, shows only that, at the hearing, the Tribunal was of the view that the fact that the applicant’s mother did not lodge a protection visa application for her son soon after his birth, indicated that she did not in fact fear for his safety. That statement does not suggest, however, that the Tribunal did not think that it was also open for the applicant’s mother to join her son to her application, either as a primary applicant (i.e. on the basis that he feared harm in India) or as a secondary applicant (i.e. as the dependent of one or both of his parents). The fact that somebody says one thing does not mean that they do not believe another.
The Minister submitted that the issue of concern raised by the Tribunal in [21] of its reasons is the delay in the applicant lodging his protection visa application after the time of his birth. That is made clear in the last sentence of [21]. Given that the applicant was a minor, this delay was attributable to his mother who, as set out by the Tribunal, had experience in dealing with migration processes in respect of protection visas, having lodged a protection visa application herself and having sought review with the RRT and Courts.
I do not accept the Minister’s submissions and conclude that the Tribunal acted on the basis that it was possible for the applicant to be joined to his parents’ visa application.
It is true, as the Minister submits, that the Tribunal’s central concern in [21] of its reasons was the delay in the application for a visa by the applicant. It is also true that the delay was attributable to his mother. However, the following matters lead me to conclude that the Tribunal acted on a misunderstanding of the law:
a)first, the Tribunal records that the mother said she was not sure if she and her husband could include the applicant in their application or not;
b)secondly, the Tribunal did not respond to that evidence in its reasons by stating that an application could, and should, have been made in the applicant’s own right. Rather, it records that it asked the mother whether she had sought advice about including her son in her application and then stated that it had difficulty accepting her response to that question. The reason for that rejection was the mother’s experience in the process of visa applications and judicial review. She was, it noted, “ensconced in the process of review”. That experience was directly related to the preceding issue, namely, the possibility of joining the applicant to her own visa application. The Tribunal’s statement about the failure of the mother to make enquiries about “the situation for the applicant” must, logically, be a reference to the failure by the mother to enquire about whether she could add her son to her own application. If it was only a reference to lodging a new application for the son, it would have been based on a misunderstanding of the mother’s evidence and so without any rational basis: the mother did not say that she had not enquired about making such an application; and
c)thirdly, the Tribunal found, as a fact, that the applicant’s parents had formulated and implemented a strategy to remain in Australia, part of which was to delay lodging the application for the son. This finding too, followed immediately from, and must have been based on its rejection of the mother’s evidence, that she had not made enquiries about joining the applicant to her own visa application.
The remaining question is whether the Tribunal’s misunderstanding of the law infected its decision with jurisdictional error.
The Minister argued that there were two reasons for which there was no jurisdictional error. The first was because the particular concern in which the error was made was based on the delay within a finite period of time, that is, from 15 May 2013 to 10 June 2014. That period existed regardless of whether the applicant’s claims were made in the parents’ application or not. Secondly, is that the concern about the delay was only one of a number of matters that led the Tribunal to reject the applicant’s claims.
The difficulty with both of these arguments is that it is very difficult to excise any particular consideration from the Tribunal’s reasons without engaging in some form of merits review. That is particularly the case where, as here, the finding went to the credibility of all of the claims made on behalf of the applicant and led to their rejection. Questions of credibility are often matters of impression and matters that seem insignificant to one decision-maker may take on far greater significance in the mind of another: Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [4] (Gleeson CJ).
The Minister did not argue that the fact that any misunderstanding went only to an issue of credibility meant that there was no jurisdictional error. He was correct not to do so. As explained by the Full Court of the Federal Court in CQG15 v Minister for Immigration & Border Protection (2016) 70 AAR 413; [2016] FCAFC 146 at [36]-[38] there are a number of well-established bases on which credit findings may be impugned.
The question is whether the Tribunal’s misunderstanding was material to the decision. That is a different question to whether the error was trivial or had a minimal impact. The critical matter for the Tribunal was whether it was satisfied that the applicant met the criteria for the grant of a protection visa. That satisfaction had to be reached on a proper understanding of the law, after consideration of all the relevant material before it, and the basis of findings of fact that were open to it on that material: see, for example, the analysis by Robertson J in Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 of what constitutes jurisdictional error.
In SZLGP v Minister for Immigration & Citizenship (2009) 181 FCR 113 at [37]; [2009] FCA 1470 Logan J held that a Tribunal will fall into jurisdictional error by applying “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”. Here, one of the premises for the Tribunal’s rejection of the applicant’s claims was legally incorrect. There is no basis to distinguish that from a factually false premise. The premise was material to one of the matters that were material to the Tribunal’s ultimate decision and, for that reason, infected that decision with jurisdictional error.
Although not raised by the Minister, it is possible to argue that there is a line of authority in the Federal Court that requires a different outcome. The authorities in question deal with the impact of illogical or irrational findings made in the course of decision-making. They were summarised by Wigney J in Minister for Immigration & Border Protection v SZUXN (2016) 69 AAR 210 at [55]; [2016] FCA 516:
… allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].
(Emphasis added)
His Honour’s remarks were endorsed by the Full Court in Muggeridge v Minister for Immigration & Border Protection [2017] FCAFC 200 at [35] (Charlesworth J, Flick and Perry JJ agreeing).
However, both the emphasised portion of that paragraph and the authorities to which Wigney J refers make plain that, even in the context of illogicality and irrationality, the question of whether there is jurisdictional error turns on an analysis of the reasons for the impugned decision. On that basis, in light of the reasons for the decision here, those authorities may be distinguished. The question remains, as I have stated, whether the error was material to the decision. In my view the error here was material and so infected the decision with jurisdictional error.
There is no basis for refusing to grant relief.
Conclusion
The decision must be quashed and the matter remitted to the Tribunal for consideration according to law.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 15 December 2017
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