DPL22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 232
•24 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DPL22 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 232
File number(s): SYG 1637 of 2022 Judgment of: JUDGE MCCABE Date of judgment: 24 February 2025 Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) – protection visa – criticisms of the Tribunal’s fact-finding process – whether the Tribunal was required to provide the Country Information Report to the applicant for comment – where the applicant alleged poor quality of the audio in the Tribunal’s remote hearing – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 360, 425
Migration Regulations 1994 (Cth)
Cases cited: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175
Minister for immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 771
SZVUP v Minister for Immigration and Border Protection [2015] FCCA 1287
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 10 February 2025 Place: Sydney Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr A Gardner, Mills Oakley Lawyers Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1637 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DPL22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
24 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $6,100.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MCCABE:
Mr DPL22 applied for a Protection (subclass 866) visa (protection visa) in 2016 so that he could remain in Australia. A delegate (the delegate) of the first respondent (the minister) rejected the application in January 2017. That decision was affirmed on review by the Administrative Appeals Tribunal (the Tribunal) on 7 October 2022. The Tribunal decided the applicant was not a person in respect of whom Australia owed protection obligations under ss 36(2)(a) or (2)(aa) of the Migration Act 1958 (Cth) (the Act).
In November 2022 Mr DPL22 sought judicial review in this Court of the Tribunal’s decision. He says the Tribunal’s decision is tainted by material jurisdictional error. While his application for judicial review identifies seven different grounds, his central complaint is that the Tribunal made incorrect factual findings. Mr DPL22 says the Tribunal claimed he said things in evidence at the hearing that he did not actually say. Those findings were central to the Tribunal’s decision.
At the hearing before me, Mr DPL22 also raised concerns about the quality of the hearing process in the Tribunal. The Tribunal hearing was conducted remotely using Microsoft Teams. Mr DPL22 said he participated in the hearing from regional Western Australia where the internet coverage was poor. He told me he is concerned the Tribunal may not have heard or understood all his evidence because of connection issues.
Mr DPL22 did not tender a transcript of the Tribunal hearing, and a recording has not been provided. In those circumstances, Mr Gardner, the minister’s solicitor who appeared in these proceedings, suggests the Tribunal’s statement of reasons is the best record of what was said at its hearing. Mr Gardner said he would expect some indication in the reasons if there were difficulties with the connection. While the applicant has (belatedly) raised concerns over his ability to participate effectively in the hearing because of connection issues, Mr Gardner said the Court should find there was no irregularity in the absence of a transcript or recording.
I am not satisfied the applicant has made out any of the grounds of review, nor have I discerned any other material jurisdictional error. I explain my reasons for dismissing the application for review in the paragraphs that follow. I have also decided it is appropriate to make an order for costs.
BACKGROUND
Mr DPL22 is a citizen of Fiji. He entered Australia on a visitor visa in May 2016. He lodged his application for a protection visa on 31 October 2016. The application forms are reproduced in exhibit one (the court book) at pp 1ff. The reasons for claiming protection are set out at pp 32ff. The reasons are not clearly articulated: I note there are references to a fear of persecution as a result of disagreements with the Fijian government; a fear of torture, death and payback; and harm because the applicant had previously held a government job.
Mr DPL22 was not represented by a migration agent in connection with the application for a protection visa. The delegate rejected the application. The delegate’s decision is dated 10 January 2017. Mr DPL22 lodged his application for review of the decision in the Tribunal on 27 January 2017 where it remained for some time because of backlogs.
THE APPLICATION FOR REVIEW AND THE TRIBUNAL’S DECISION
The applicant obtained assistance from a migration agent after lodging his application for review in the Tribunal. In a submission dated 15 September 2022, the agent recounted several incidents that Mr DPL22 had witnessed in Fiji. The submission included details of an incident in 2006 that involved the applicant’s cousin. The submission said the applicant witnessed his cousin’s death after the cousin became embroiled in a property dispute that attracted the attention of the military. The submission records the applicant’s cousin was taken away by soldiers and tortured and killed in the wake of the dispute. The applicant and his family are said to have campaigned for justice but most of the active family members (and, I would interpolate, the applicant) left Fiji before there was any redress: court book at p 111. The representative filed news reports referring to a soldier being convicted of manslaughter in 2009 in connection with the death of Mr DPL22’s cousin: court book at pp 123ff.
The Tribunal hearing took place on 21 September 2022. The hearing was conducted by video conference using the Microsoft Teams format. The applicant had an interpreter available. His representative also appeared. The member asked questions, and the representative made submissions. Following the hearing, on 29 September 2022, the representative provided a further written submission which addressed questions raised by the member about the applicant’s cousin, and some other matters: court book at pp 143ff.
The Tribunal affirmed the decision under review on 7 October 2022. The Tribunal’s statement of reasons is reproduced in the court book at pp 163ff. The statement of reasons begins with what appears to be an uncontroversial generic discussion of the criteria for a protection visa in s 36 and related provisions of the Act, sch 2 to the Migration Regulations 1994 (Cth), and the contents of Ministerial Direction No 84. The Tribunal then began discussing the evidence. At [23]-[26], the Tribunal recorded:
23.The applicant said that there was a public protest about this land grab which he and his cousin participated in 2007 which also opposed the coup that had happened and there was ‘a confrontation with the military and his cousin was killed.’
24.The applicant said that his cousin disappeared and later was found dead, when an ‘opponent reported him’ and ‘he was never found alive again’.
25.The applicant said that this incident involving his cousin ‘was reported in the newspapers.’ The Tribunal asked the applicant if he had the newspaper article available for the Tribunal to observe and read. The applicant told the Tribunal (after searching his documents) that he could not find the article in question but would ‘search and provide it to the Tribunal.’ The Tribunal made it known to the applicant and his Legal counsel that the referred to newspaper article be copied and provided to the Tribunal within 14 days (from 22nd September 2022).
26.The applicant described this dispute (concerning land) as an Indo-Fijian had leased land that bordered the applicant’s family’s land and had proceeded, despite increasing protests from the family, to try and ‘steal more land.’ When the protests broke out with the applicant’s cousin in the forefront, local army members intervened which caused the death of the applicant’s cousin.
The Tribunal referred again to this evidence when it was discussing the applicant’s credit. The Tribunal observed (at [77]):
The applicant claims that his now deceased cousin participated in protests against the military and security forces. There were a series of very public altercations which resulted in violent protests and at one of these protests his late cousin was apprehended, taken away for questioning by the authorities and later it was made known that the applicant’s cousin had been “killed” by the military. The applicant claims that he was engaged (in what followed) in protests and public outcry together with other family members – seeking an investigation into his cousin’s death and the punishment of all persons who were involved or caused his untimely demise. The applicant claims that this involvement has made him a ‘person of interest’ to the current government which has within its ranks those who had instigated the coup.
The Tribunal went on to find (at [78]) it had:
… concerns about the applicant’s recollection of events and concludes that the applicant has exaggerated and embellished his claims about his association with his late cousin and his involvement in his late cousin’s public protests against the coup instigators in 2006 which eventually caused his untimely death.
This adverse credit finding was explained in the paragraphs that followed. The Tribunal relied on information contained in the relevant Country Information Report published by the Department of Foreign Affairs and Trade (DFAT) that the Tribunal said was inconsistent with the applicant’s account of the status of Indo-Fijian indentured workers relative to indigenous Fijians and disputes over land rights in Fiji: at [80]-[81]. The Tribunal was troubled by other aspects of Mr DPL22’s evidence, including the limited details he offered in relation to the land dispute, whether he was actually present on the day his cousin was taken away, and the extent of the applicant’s own subsequent involvement in protests: at [83]-[84]. The Tribunal observed at [86]:
… the applicant offered no explanation in his later written submission with regards to his own role at these protests where he escapes the attention of the authorities, but his cousin is taken away, detained, and subsequently murdered. The Tribunal does not accept the applicant’s claim that he is or would be a person of interest to the current government because of his involvement in protests against the coup in 2007 where his cousin had been killed by units of the Fijian military.
The Tribunal made essentially the same point at [89], where it found:
… the Tribunal accepts that the applicant’s late cousin and his family was involved in a dispute over traditional lands which involved indigenous Fijians of significance and with connections to the Fijian armed forces which instigated the 2006 coup. What the Tribunal does not accept is the claim that the applicant submitted that told the Tribunal of his immediate and direct involvement in the public protests in 2006/7 which resulted in his cousin’s death. The applicant provided no evidence of his direct involvement in these protests or any evidence that he was singled out by elements of the armed forces. [sic]
The Tribunal also doubted whether the applicant would continue to be at risk should he return to Fiji after so much time had elapsed. In reaching that conclusion, the Tribunal again referred to the Country Information Report: at [87].
The Tribunal summarised its findings at [91] of its reasons, before concluding the applicant could not satisfy the criterion in s 36(2)(a) of the Act which applied to claims where the person was said to be a refugee. It then explained at [96] why those findings also meant the applicant could not satisfy the criterion in s 36(2)(aa) applicable to claims for complementary protection.
THE GROUNDS OF REVIEW
Mr DPL22’s grounds of review were prepared with the assistance of a lawyer, but the applicant was not represented at the hearing. I mention that discontinuity of representation because it gave rise to a problem that occurs frequently in this jurisdiction: the unrepresented applicant who has obtained some assistance in drafting grounds of review is unable to subsequently explain what those grounds mean. That complicates the task of the Court as it tries to make sense of the applicant’s case.
That said, the application for review identified seven grounds of review. After discussing those grounds with Mr DPL22 at the hearing, it was apparent he had three substantive criticisms which could amount to material jurisdictional error. The first criticism went to the Tribunal’s fact-finding process. Mr DPL22 said the Tribunal made factual findings that were not based on the evidence. The Tribunal then went onto make adverse credit findings against the applicant on the basis of the flawed factual findings. He argued, in effect, that proceeding to decide the case on the basis of those incorrect findings was unreasonable, and therefore a material jurisdictional error. Second, Mr DPL22 said the Tribunal’s decision was heavily reliant on the Country Information Report and it should have – but did not – put the contents of the report to Mr DPL22 as a matter of procedural fairness. The applicant says that failure of process is also a material jurisdictional error.
The third criticism arose out of the belated assertion that Mr DPL22 was unable to effectively participate in the hearing because of a faulty or poor-quality connection.
Did the Tribunal’s fact-finding process miscarry?
The applicant’s criticism of the Tribunal’s fact-finding process is encapsulated in the statement of particulars attached to the grounds of review. Those particulars provide:
a.The Tribunal erroneously claimed that the applicant said that there was a public protest about the land grab which he and his cousin participated in 2007 which also opposed the coup that had happened and there was a confrontation with the military and his cousin was killed, whereas the Applicant did not make such statements.
b.The Tribunal incorrectly claimed that The applicant claims that his now deceased cousin participated in the protests against the military and security forces, and there were a series of very public altercations which resulted in violent protests and at one of these protests his late cousin was apprehended, taken away for questioning by the authorities and later it was made known that the applicant’s cousin had been “killed” by the military (at para 77), whereas the Applicant did not make such claims.
c.The Tribunal erroneously claimed that the Applicant claimed that he was engaged (in what followed) in protests and public outcry together with other family members in seeking an investigation into his cousin’s death, as the Applicant never claimed that he and his family ever attended in protests and public outcry. [Emphasis added]
Arguments about the Tribunal’s fact-finding are often little more than an invitation to engage in an impermissible process of merits review in which the Court is urged to substitute factual findings that the applicant says should have been made for the facts that were found by the Tribunal. When I questioned the applicant about his concerns at the hearing, I gained the strong impression that he simply disagreed with the findings. He said the Tribunal ‘misunderstood’ his evidence, and the Court should allow the question to be revisited.
The fact a Tribunal makes a factual finding that turns out to be wrong does not inevitably mean there has been a material jurisdictional error. Having said that, I accept the Tribunal may end up making a decision that is illogical or irrational – and therefore legally unreasonable – if the Tribunal’s conclusion is based on findings made without a proper evidentiary basis: see generally Minister for immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135] per Crennan and Bell JJ. A credit finding made “without a logical, rational or probative basis” may well be legally unreasonable in this sense: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ.
Mr DPL22 faces several challenges in making out his case to the extent he alleges unreasonableness on the basis the Tribunal made findings (including findings of credit) without a proper evidentiary basis. First, there is no proper evidentiary basis for the Court to make such a finding in this case. He says, in effect, he was misquoted by the Tribunal. Mr DPL22 says he did not give the evidence which the Tribunal attributes to him. I have not been provided with a transcript or recording of the hearing which includes the applicant’s evidence. Statements made from the bar table about what was said at a hearing the applicant attended two years ago do not provide a proper basis for me to find the applicant was misquoted. In the absence of a transcript or other evidence to the contrary, I am entitled to infer the Tribunal’s statement of reasons accurately recounted what was said at the hearing: SZVUP v Minister for Immigration and Border Protection [2015] FCCA 1287 at [13]-[14]; see also Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 771 at [44].
Second, there is evidence in the material before the Tribunal that provided a basis for attributing to the applicant the statements the Tribunal made in [23]-[26] and [77]. I have already mentioned the applicant’s representative provided written submissions on 15 September 2022 in advance of the hearing. Those submissions are reproduced in the court book at pp 110ff, while further written submissions dated 29 September 2022 which traverse some of the same incidents are reproduced at pp 143ff. Those submissions discuss the incident involving the applicant’s cousin and the applicant’s experience of protests. While the Tribunal has not quoted directly from those accounts in its statement of reasons, the submissions do provide a general basis for the findings – particularly if that evidence was clarified by evidence provided at the hearing as the Tribunal’s reasons appear to suggest.
I am satisfied this criticism of the Tribunal’s decision is misconceived. My conclusion therefore deals with ground one in the application for review; it also deals with grounds three and four which refer to the adverse credit finding being based on the ‘misunderstanding of fact’ referred to in ground one.
Was the Tribunal required to provide the Country Information Report to the applicant for comment?
Ground two contends the Tribunal should have shared the Country Information Report – in particular, those parts of the report which dealt with ‘Indo-Fijians’ leasing land from traditional owners – so the applicant could provide comment. Mr Gardner, who appeared for the minister, said in written submissions that this ground misconceives the Tribunal’s obligations under s 424A of the Act. It is important to remember the procedural fairness obligations governing the Tribunal’s review in a case like this are exhaustively set out in the legislation. Section 424A(1) does oblige the Tribunal to provide information to an applicant for comment in certain circumstances, but there are exceptions to that obligation. In particular, s 424A(3)(a) says (relevantly) the Tribunal is not required to put to the applicant information that is not specifically about the applicant. That exception is available in respect of Country Information Reports. It follows this ground is misconceived and cannot succeed.
Was the applicant denied the opportunity to participate in the hearing because of a bad connection?
Mr Gardner properly conceded the applicant would have been denied his statutory right to participate in a hearing if the connection over which he joined was so poor that he could not be heard, or if he could not hear the other participants. If that were the case, the Tribunal would have failed to perform its statutory review.
Mr DPL22 suggested one reason for the misunderstanding that he particularised in ground one was the poor quality of the audio in the Tribunal’s remote hearing. (I leave to one side my finding that the applicant has not made out ground one.)
Mr DPL22 had not mentioned his concern over audio quality prior to the hearing before me. There is no reference in the Tribunal’s statement of reasons to a problem with understanding the applicant’s evidence. I note the hearing report prepared in connection with the hearing (court book pp 117-118) refers to an audio check at the start of the hearing, and there is no record of any problems (although in fairness it is not clear whether the hearing attendant who prepared the report stayed throughout the event. Tribunal members are often left to fend for themselves once a hearing has commenced). If there had been a problem with hearing and understanding the applicant’s evidence, one would have thought his representative who was on the line would have made an issue of that.
In the absence of a transcript or other evidence pointing to audio problems that were such as to compromise the effectiveness of the hearing, I do not have any basis for criticising the Tribunal’s conduct. Moreover, I note the applicant in his submissions before me was merely surmising the supposed misunderstanding was the product of an audio problem. That submission does not rise above speculation – and I have found I am not satisfied there was misunderstanding in any event. This (new and not previously articulated) ground must fail.
OTHER MATTERS
I will briefly deal with the other grounds set out in the application.
Ground five contends the Tribunal failed to comply with its obligations under s 360 of the Act after the applicant produced additional material following the hearing. That material was referred to and discussed at [63]-[69] of the Tribunal’s reasons. The applicant contends the Tribunal should have reconvened the hearing so he might give further evidence in relation to the fresh matters raised in that material.
The minister’s written submissions point out s 360 has no application to a protection hearing; the relevant provision in these circumstances is s 425. While the minister conceded s 425 might oblige the Tribunal to reconvene a hearing to take further evidence in some cases when additional information comes to hand, the minister says this is manifestly not one of those cases. In this case, the minister says the information provided about the land disputes and other matters was merely supplementary to the material already discussed at the hearing. Mr Gardner argued it was not fresh material and did not appear to raise new issues or make fresh and different allegations of fact. I am satisfied that is right. It follows there is no substance to ground five.
That leaves only grounds six and seven. Ground six contends the Tribunal failed to consider ss 36(2)(a) and (aa) of the Act. There is no substance to this complaint. While the Tribunal does not reproduce the text of those two provisions, it plainly addressed them in its reasons at [91]-[92] (which deal with the criterion in s 36(2)(a)) and [93]-[96] (which deal with the criterion in s 36(2)(aa)).
Ground seven baldly asserts the Tribunal failed to conduct a review. That is not a properly articulated claim, and it must be rejected.
CONCLUSION
The application for judicial review must be dismissed.
I asked for submissions from both parties about whether an award of costs should be made in favour of the successful party. Mr DPL22 appeared to accept an award of costs was appropriate and he did not have any submissions to make about the amount that should be awarded. Mr Gardner asked for an award of costs in a fixed amount of $6,100 in the event the minister was successful. He pointed out that amount was less than the amount indicated according to the Court’s scale.
I am satisfied it is appropriate for costs to follow the event in this case. The minister has clearly incurred expenses in defending the proceedings. Any amount that is not recovered from the applicant must be met out of the public purse. I am not aware of any other reason why costs should not be awarded. I am satisfied an award of fixed costs in the amount of $6,100 is reasonable in the circumstances.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 24 February 2025
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