EHM24 v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 50
•22 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EHM24 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 50
File number(s): SYG 1428 of 2024 Judgment of: JUDGE LAING Date of judgment: 22 January 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the applicant was sufficiently on notice of the issues on the review as required under s 425 of the Migration Act 1958 (Cth) – application succeeds Legislation: Migration Act 1958 (Cth) s 425 Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] FCA 184
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
EHM24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 997
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1
SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486
SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; (2018) 266 FCR 105
Division: General Number of paragraphs: 33 Date of hearing: 29 November 2024 Place: Sydney Appearing for the Applicant: In person Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1428 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EHM24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
22 JANUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal dated 26 April 2024 in case number 1805447.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
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 LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Subclass 866) visa (protection visa).
These reasons follow reasons delivered on 10 October 2024 after orders were made granting an extension of time and an injunction restraining the applicant’s removal from Australia pending these proceedings: EHM24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 997. The background to the matter and summary of the Tribunal’s decision below is largely taken from those reasons.
In those reasons, I considered that an arguable ground of review had been raised. That ground contended that the applicant was denied the hearing required under s 425 of the Migration Act 1958 (Cth) (Act). For the reasons that follow, I conclude that the ground ought to succeed.
BACKGROUND
The applicant is a citizen of Malaysia, who applied for a protection visa on 2 January 2018.
On 12 February 2018, the Delegate refused the application.
On 1 March 2018, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant attended hearings before the Tribunal on 15 April 2024 and 17 April 2024.
On 26 April 2024, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal set out the background to the matter at [1]-[7] of its decision. This included reference to the cancellation of the applicant’s Subclass 030 Bridging C visa, following his conviction for a criminal offence. The Tribunal summarised the criteria and evidence before it at [8]-[23], before reasoning as follows at [24]-[33]:
24.For the reasons that follow, I have a number of concerns with the applicant's evidence and claims to fear harm from unlicensed money lenders.
25.First, the applicant left his wife alone in Malaysia after claiming at the hearing that she was the one who accumulated all the debt. The Tribunal has considered whether a husband who feared for his own safety would leave his wife in danger whilst travelling to Australia for his own safety. When asked how he could leave his wife, he said that she had a new man in her life, and that he had helped her with the debt. This response still does not address the question as to why he would leave his wife with all the debt and danger while he travelled overseas.
26.Secondly, the applicant did not report to the police. He has no documentation as to the loans, the amounts, the amount he has paid, photos of any alleged activity by the money lenders such as the photos of the applicant posted near his home, or the red paint splashed.
27.Thirdly, the applicant first arrived in 2016 and did not apply for a protection visa until 2018. He was unlawful from 3 March 2017 until he applied for the protection visa on 2 January 2018. The Tribunal considers that if the applicant had a genuine fear of the money lenders in Malaysia, he would have applied for a protection visa when he first arrived in Australia and not waited for two years prior to applying.
28.Fourthly, the applicant's evidence was inconsistent. First, he said that his wife accumulated the debt, then he said he took out loans as he had to pay his staff. When asked why he came to Australia, the applicant's first response was because it is good. He did not say he was fearful of the money lenders in Malaysia.
29.Give the overall concerns with his evidence and the lack of documentation, the Tribunal does not accept that the applicant owes $200,000 AUD to money lenders Malaysia, nor that his ex-wife accumulated all this debt. It follows that the Tribunal does not accept that the applicant would face harm from the money lenders or anyone else upon return to Malaysia.
30.Given these findings the Tribunal does not accept that if the applicant returns to Malaysia, he will face a real chance of persecution from unlicensed money lenders, or anyone associated with them. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).
31.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
32.Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Having regard to the above, the Tribunal affirmed the Delegate’s decision (at [34]).
APPLICATION FOR REVIEW
The grounds raised in the application filed by the applicant on 27 June 2024 are as follows:
1.Denial of procedural fairness: a). I applied for a protection visa on 2 January 2018, but on 12 February 2018, a delegate of the Minister for Home Affairs refused to grant me the visa under s65 of the Migration Act 1958 (Cth) (the Act). After my release from prison, I was taken into immigration detention. I appeared before the Tribunal on 17 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from my daughter. Unfortunately, my partner was unable to give evidence as she had to return to work. b). Throughout the process, I faced significant barriers to preparing my case. Due to being in detention, I had very limited access to resources, legal advice, and proper information about the requirements for my hearing. My attempts to secure a legal representative were unsuccessful due to financial hardship and the refusal of my application to Legal Aid NSW. c). I did not have any valuable items or cash to support legal costs, leaving me without any legal assistance. d). The Tribunal did not provide me with clear instructions on what evidence or documentation I needed to bring to support my case. e). As a result, I attended the hearing with only oral testimony, unaware of the importance of submitting had evidence. This lack of guidance and support to present my case effectively.
2.Non-compliance with direction: a). The Tribunal conducted the hearing with the assistance of an interpreter in Mandarin and English. However, I did not receive adequate instructions from the Tribunal on the necessary preparations for the hearing. b). Due to my detention status and the absence of personal belongings such as a mobile phone and computer, I was unable to gather and present crucial evidence. c). The Tribunal failed to comply with procedural directions by not ensuring I had the necessary resources and understanding to present a comprehensive case. d). This non-compliance with procedural requirements further hindered my ability to effectively participate in the hearing and present my arguments.
3.Unreasonableness or irrationality: a). The Tribunal's decision was based on my oral presentation, despite being aware of my precarious situation and the threats I faced from a loan shark in Malaysia. b). The focus on my past relationship with my ex-partner rather than the genuine threats to my safety was unreasonable and irrational. c). The Tribunal did not give due consideration to the full context of my situation and the dangers I faced. d) Additionally, the Tribunal's decision did not take into account the significant barriers I faced in preparing my case due to my detention and lack of resources. e). The decision to refuse my protection visa was made without properly considering all the relevant evidence and circumstances.
In my earlier judgment, I explained why I was not persuaded that the majority of the matters raised by the above grounds identified a serious question to be tried. For similar reasons, I am not persuaded that they demonstrate jurisdictional error.
However, as observed in my earlier judgment, the contentions raised under grounds 1 and 2 potentially also raise the question of whether the Tribunal complied with s 425 of the Act. At the previous hearing, I found that this raised a serious question to be tried regarding whether the applicant was sufficiently on notice of the issues on the review as required by s 425 of the Act: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) at [25]-[50]. It is upon this aspect of the grounds that I have found that the applicant ought to succeed in this matter.
Section 425, as it applied in the present case, was as follows:
Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The issues in question
In the present case, as set out above, the second of the concerns that the Tribunal raised with the credibility of the applicant’s account was that “the applicant did not report to the police” (at [26]). This fed into the Tribunal’s “overall concerns with his evidence” (at [29]), which led to the Tribunal’s rejection of the factual premise of the applicant’s claims (at [29]-[32]). Therefore, two issues that arose on the review before the Tribunal were:
(a)whether the applicant had reported to the police; and
(b)if not, the reasons he did not do so.
These matters were not in issue before the Delegate. Although the Delegate was not satisfied that the applicant was unable to access state protection, she did not find that the applicant had not previously reported to the police nor identified this as a matter capable of bearing upon his credibility.
My finding that these matters ought to be characterised as “issues” runs counter to the Minister’s submissions at hearing. The Minister submitted that the “issue” on the review in this case was whether the applicant’s factual claims regarding owing money to money lenders ought to be believed. Relying upon SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 (SZJUB) (Bennett J), the Minister submitted that the question of whether the applicant reported to the police, and the reasons for this, were factual matters that related to this issue and were not issues in and of themselves.
I am unable to accept the Minister’s submissions. This is not a case such as SZJUB, in which the appellant’s business and child were considered factual matters that related to the issue of risk (of which it had been found that the appellant was sufficiently on notice). Cases such as SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 at [7] (Gray J) and [115] (Besanko J), and ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 at [27] (Bromberg J) suggest that an issue may be required to be defined at a greater level of specificity than suggested by the Minister, depending upon the circumstances of the case.
If an issue were to be defined at the level of generality suggested by the Minister, then the appellant in SZBEL would not have succeeded. In that case, both the delegate and the Tribunal had not accepted the appellant’s factual claims to protection regarding his involvement with Christianity. Their different reasons for doing so gave rise to the outcome in that case, in circumstances where the appellant was found to have been insufficiently put on notice of the relevant issues.
The question, then, is whether the Tribunal in this case sufficiently identified the issues to the applicant.
Were the issues sufficiently identified to the applicant?
The Minister submitted that this was done through the following exchange early in the hearing before the Tribunal (at p 5-6 of the transcript of the 15 April 2024 hearing):
MEMBER: An officer at the Department of Home Affairs has looked at your claims and may have accepted or questioned parts of those claims.
MEMBER: I’m looking at all the information afresh, so I don’t rely upon the findings of the Department in either accepting or denying elements of your claims.
MEMBER: For this reason, I have before me all of the information you have provided to the Department, as well as the information you have provided to the Tribunal, so I already have a reasonable idea of your claims.
Noting that the Delegate had “not entered the fray” on the credibility of the applicant’s claims, the Minister suggested that the above was sufficient to put the applicant on notice that the Tribunal would be looking at all the information afresh, and would not rely upon the findings of the Delegate in either accepting or denying elements of his claims. The Minister submitted that in these circumstances, the Tribunal did not need to put the applicant on notice that it might not accept certain or individual elements of his claims. This was said to be because the Tribunal’s conclusions at [26] flowed from “an obvious and natural evaluation of that material” that was before the Tribunal: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591E-F; 592. The Minister also observed that the Tribunal had “extensively questioned” the applicant about his protection claims at the Tribunal hearing.
I accept that the Tribunal’s statements per the above indicated in general terms that the acceptance or non-acceptance of the applicant’s claims may be in issue. This is when considered in combination with the Tribunal’s statement (at p 16 of the 17 April 2024 transcript), when explaining the “possible outcomes” of its deliberations:
MEMBER: Or if I find- Or if I find that your claims cannot be substantiated, then I will affirm the original decision not to grant you a Protection Visa.
As was found in my earlier judgment, the Tribunal also framed some questions in a way that indicated the applicant’s claims were potentially being doubted, for example, by asking “why if you were so fearful about what would happen to you in Malaysia that you came to Australia for protection, why you waited two years to put in for a Protection Visa?” I accept that these matters sufficiently put the applicant on notice that the veracity of his factual claims may be in issue, despite this not being in issue before the Delegate.
I also accept, as was found in my earlier judgment, that the Tribunal’s questioning of the applicant regarding the leaving of his wife, his delay in applying for protection, the accumulation of the debt and the reason the applicant had come to Australia was sufficient to identify the potential for these matters to be in issue. I accept, for the reasons given in my earlier judgment, that the applicant was sufficiently on notice that the adequacy of his documentation may be in issue.
However, I am not persuaded that either the Tribunal’s general statements considered above, or the Tribunal’s questioning of the applicant, were sufficient to identify to him that also potentially in issue were (a) whether he had reported to the police; or (b) his reasons for not doing so if this were the case.
Nothing in the decision of the Delegate put the applicant on notice that these matters were in issue. I do not accept, as was contended by the Minister, that the Tribunal’s conclusions at [26] flowed from “an obvious and natural evaluation” of the material. It would not have been obvious that the determined failure of the applicant to report to the police was in issue, when he did not give this evidence and was not questioned at any stage of the process as to whether or not he had reported (or why).
In this regard, the Minister relied upon an answer given in the applicant’s protection visa application in response to the question: “Do you think the authorities of that country/those countries can and will protect you if you go back?” (CB 26). The applicant responded: “I cannot go to police”. However, this question and answer were directed towards the applicant’s ability to seek protection in the future. They did not ask, or answer, the question of whether a report had been made to the police by the applicant in the past (or the reasons for this).
I accept, as was submitted by the Minister, that the Tribunal was not required to make the applicant’s case for him, or to advise him of deficiencies in his case or how to remedy them. Nor was the Tribunal required to give the applicant a “running commentary” about what it thought about his claims: SZBEL at [40]; see also SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; (2018) 266 FCR 105 at [38].
However, the Tribunal was required to identify for the applicant the issues on the review in circumstances where they had not been in issue before the Delegate and were not obvious or otherwise apparent to the applicant. I have found above that the Tribunal did not do this. I therefore find that the Tribunal did not comply with the requirements of s 425 of the Act.
Had the Tribunal complied with s 425 of the Act, then it is possible that the applicant could have addressed the Tribunal’s concerns regarding whether or not he reported to the police. Had the applicant done so, then it is possible that the Tribunal’s assessment of his claims could have been different.
On the basis of the above, I find that the Tribunal’s decision was affected by jurisdictional error.
CONCLUSION
The application before this Court therefore succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 22 January 2025
0
8
1