ESX21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 58
Federal Circuit and Family Court of Australia
(DIVISION 2)
ESX21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 58
File number: PEG 275 of 2021 Judgment of: JUDGE LADHAMS Date of judgment: 6 February 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant protection visa to applicants – whether Tribunal failed to consider applicants’ complementary protection claims under s 36(2)(aa) of the Migration Act 1958 (Cth) – whether Tribunal misapplied s 36(2)(aa) – whether Tribunal denied applicants procedural fairness – whether Tribunal acted unreasonably in failing to consider adjourning hearing or, alternatively, deciding not to adjourn hearing – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5, 5J, 5K, 36, 425, 427, 430, 476, 477, 499, 501CA Cases cited: Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairsand Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62,
BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93
BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35; [2018] FCAFC 114
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10
Dunasemant v Minister for Immigration [2021] FCA 128
FJK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 211
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of hearing: 17 October 2022 Place: Perth Counsel for the Applicants: Mr S Zanotti Stagliorio Solicitor for the Applicants: Fisher Dore Lawyers Counsel for the First Respondent: Mr T Lettenmaier Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 275 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ESX21
First Applicant
ESY21
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
6 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
Introduction
Before the Court is an application filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), by which the applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 3 December 2021 the Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicants Protection (Subclass 866) visas (protection visa).
The applicants rely on an amended application filed on 19 September 2022 which contains three grounds of review. These grounds allege that:
(a)the Tribunal failed to consider whether the applicants met the complementary protection criterion in s 36(2)(aa) of the Migration Act in the light of its finding that the first applicant was discriminated against by being denied employment as a police officer, or alternatively the Tribunal misinterpreted s 36(2)(aa);
(b)the Tribunal denied the applicants procedural fairness because, in circumstances where the applicants were surprised by their representative’s non-attendance at the hearing, the Tribunal misled the applicants by indicating at the start of the hearing that it would give them an opportunity to tell the Tribunal at the end of the hearing if they had been disadvantaged by not having a representative, and then not giving them this opportunity; and
(c)the Tribunal failed to consider whether to adjourn the hearing when the applicants were surprised by their representative’s non-attendance, or alternatively the Tribunal’s decision not to adjourn the hearing was legally unreasonable.
For the reasons explained below, I have found that there is no jurisdictional error in the Tribunal decision and I dismiss the application to the Court.
Background
The applicants are citizens of Vietnam who arrived in Australia in December 2011 as holders of subclass 457 visas.
On 30 May 2017 the applicants lodged an application for a protection visa. The first applicant claimed to fear harm if she returned to Vietnam on the basis that her father was a former South Vietnamese government worker who was captured and made to undergo re-education. The first applicant also claimed that her family has been subject to discrimination and persecution as a result of her father’s previous association with the South Vietnamese government. The second applicant, who is the husband of the first applicant, was included in the application as a member of the same family unit as the first applicant.
On 22 December 2017 a delegate of the Minister refused to grant the applicants protection visas.
The applicants sought review of the delegate’s decision by the Tribunal. The procedural history of the review application before it came before the Tribunal for hearing is relevant to one or more of the grounds of review and it is therefore appropriate to set it out in some detail. The relevant procedural history of the application is as follows:
(a)The applicants first lodged an application to the Tribunal for review of the delegate’s decision on 4 January 2018 (first Tribunal application). In the application, the applicants indicated they were represented by Mr Galloway, who was identified as a registered migration agent.
(b)The applicants then lodged a second application to the Tribunal seeking review of the same delegate’s decision on 8 January 2018 (second Tribunal application). This application indicated that they were represented by Mr Lo, who was identified as a registered migration agent.
(c)On 13 February 2019, Mr Lo sent an email to the Tribunal attaching an Appointment of Representative, Appointment of Authorised Recipient form indicating that he now also represented the applicants in the first Tribunal application.
(d)On 7 October 2021 the Tribunal sent an email to Mr Lo inviting the applicants to attend a hearing scheduled for 28 October 2021 in relation to both Tribunal applications. The Tribunal received an email from Mr Lo on 19 October 2021 requesting an adjournment of the scheduled hearing for a period of at least two months. The Tribunal refused the adjournment request.
(e)On 20 October 2021 a solicitor, Mr Au, sent an email to the Tribunal advising that the applicants had instructed him to take carriage of the first Tribunal application and attaching a completed Appointment of Representative, Appointment of Authorised Recipient form indicating that he was now the representative for the applicants in the first Tribunal application. In the same email Mr Au requested an adjournment of the hearing to give him sufficient time to review the file and advise his clients. The Tribunal refused the adjournment request.
(f)On 27 October 2021 Mr Au sent an email to the Tribunal attaching an Appointment of Representative, Appointment of Authorised Recipient form indicating he also represented the applicants in the second Tribunal application.
(g)On 28 October 2021 the applicants attended the scheduled hearing. Mr Au, as their representative, also attended the hearing. This hearing was adjourned because it was evident to the Tribunal that the applicants were suffering from symptoms of ill-health.
(h)On 29 October 2021 the applicants withdrew the second Tribunal application.
(i)On the same day, the Tribunal sent an email to Mr Au inviting the applicants to attend a resumed hearing scheduled for 15 November 2021.
(j)On 1 November 2021 Mr Au emailed the Tribunal requesting that the hearing be rescheduled because he would be on annual leave on the day of the resumed hearing. The Tribunal refused the adjournment request by email to Mr Au on 3 November 2021. On the same day, Mr Au sent to the Tribunal an email attaching a response to hearing invitation form indicating that the applicants would be in attendance at the hearing, and that he would not.
The hearing resumed on 15 November 2021. The applicants attended the hearing and were assisted by a Vietnamese interpreter. Mr Au did not attend the hearing and the applicants did not have the benefit of a representative at the hearing.
On 3 December 2021 the Tribunal affirmed the delegate’s decision.
Tribunal decision
The Tribunal noted that the applicants were surprised by their representative’s absence at the hearing, but they did not seek to adjourn the hearing because of his absence. The Tribunal expressed concerns about the conduct of the various representatives for the applicants and considered it to be plausible that the applicants may not have been aware of the content of the various documents filed by their representatives, or may not have been properly advised about the evidence they should provide. Due to these concerns, the Tribunal did not challenge the first applicant’s credibility on any basis that might reasonably be attributable to the problems arising from her representation history.
The Tribunal accepted that the first applicant’s father was a former employee of the South Vietnamese government. The Tribunal accepted that there was historic discrimination against the children of former US allies in Vietnam and accepted that the first applicant may have experienced some discrimination, including that she was prevented from becoming a police officer in around 2004. However, the Tribunal found that the discrimination she faced did not rise to the level of persecution, and her capacity to subsist was never threatened. The Tribunal found that the first applicant was able to earn a livelihood, albeit not in her first career choice as a police officer, and there was no evidence that services were withheld from her.
The first applicant also advanced a claim that she would face harm as a result of an imputed political opinion, based on an exchange of text messages with two friends, with whom she reconnected when she returned to Vietnam briefly in 2015. The Tribunal accepted that the first applicant and her friends exchanged messages, and that her friends told her that they had been involved in protests against the Vietnamese government. However, the Tribunal found that there was no evidence that the messages sent and received by the first applicant would give rise to a real chance or a real risk of serious or significant harm. The Tribunal did not consider that the applicant would be identified by the Vietnamese government from the text messages. Further, the Tribunal noted that there was no evidence to suggest that her friends themselves had been persecuted as a result of their involvement in protests. The first applicant’s evidence also indicated that she had never been involved in any political parties or organisations and had never attended any protests or demonstrations, nor had she joined any organisations in Australia or spoken out publicly against the current Vietnamese government. The Tribunal therefore found that the text messages between the first applicant and her friends did not give rise to a real chance that she would face serious harm or a real risk that she would suffer significant harm if she was removed to Vietnam.
The Tribunal did not accept that the first applicant was genuinely afraid of suffering serious harm on her return to Vietnam. However, the Tribunal accepted that she did not want to return to the economic and social conditions in Vietnam and that she is of the view that there is discriminatory conduct awaiting her in Vietnam.
The Tribunal noted the first applicant’s claim that her need to have a letter from her father certified meant that it had come to the attention of a lot of people that she was trying to prove that she was mistreated by the Vietnamese government. The Tribunal also noted that, even if this was accepted, the content of the information provided to the first applicant by her father amounts to such of his past treatment that is already on record with the Vietnamese government, and that there is nothing added that would materially change the government’s understanding of her father’s history or relationship with the first applicant or result in a materially elevated level of discrimination.
The first applicant claimed that she would face limited options for employment and residence in Vietnam but accepted that she could survive as a farming labourer in Vietnam. Taking into account country information, the Tribunal did not accept that this would result in economic hardship of the kind contemplated in s 5J of the Migration Act. The Tribunal found that there was no evidence to suggest that the capacity of the first applicant’s family to subsist was threatened by their engagement in agricultural labouring roles, or that the first applicant’s opportunities would be less than those available to her siblings and parents. The Tribunal found that the first applicant might reasonably be expected to live above the mere subsistence level.
After considering the first applicant’s claims individually and cumulatively, the Tribunal found that the first applicant did not meet the refugee criterion in s 36(2)(a) and the complementary protection criterion in s 36(2)(aa) of the Migration Act. The Tribunal also found that the second applicant did not satisfy s 36(2)(b) or (c) of the Migration Act.
Proceedings in this Court
The originating application for judicial review was filed on 17 December 2021 which is within 35 days of the Tribunal decision, as required by s 477(1) of the Migration Act.
By amended application filed on 19 September 2022, the applicants advance three grounds of application which are set out under separate headings below.
The evidence before the Court comprises:
(a)the court book;
(b)an affidavit of Ms Caitlin Barbara White filed on behalf of the applicants on 19 September 2022 which annexes transcripts of the Tribunal hearings on 28 October 2021 and 15 November 2021; and
(c)an affidavit of Ms Georgina Roberta Ellis filed on behalf of the Minister on 3 October 2022 which annexes copies of two emails between the Tribunal and the applicants’ representatives, which were inadvertently omitted from the court book.
GROUND 1
Ground 1 of the applicants’ amended application reads:
Having found that the first applicant had been discriminated against by having being denied employment as a police officer in Vietnam because of her father’s involvement with United States’ allies, the Tribunal failed to consider whether such discrimination satisfied s 36(2)(aa) of the Migration Act 1958 (Cth). Alternatively, the Tribunal misinterpreted the provision. Either way, the error was jurisdictional.
Particulars
Background
a)On 30 May 2017, the first applicant applied for a protection (subclass 866) visa, with the second applicant, her husband, as the secondary applicant.
b)On 22 December 2017, a delegate of the first respondent (Minister) refused to grant the applicants a protection visa.
c)On 3 December 2021, the second respondent (Administrative Appeals Tribunal) accepted the discrimination claim, but purported to affirm the delegate’s decision.
Limb 1
d)The Tribunal’s reasons reveal that it comprehensively considered whether the discrimination satisfied s 36(2)(a) of the Act, as it should, finding that it did not.
e)Discrimination was capable of also satisfying s 36(2)(aa), which referred to a real risk of a protection visa applicant suffering, if returned to their home country, “significant harm”, which was defined in s 36(2A), which in turn referred to terms defined in s 5(1).
f)All such definitions under s 5(1) were capable of being satisfied by reason of discrimination, including but not limited to the definition in s 36(2A)(c) of “torture”, which was expressly defined by reference to “discrimination that is inconsistent with the Article of the [International Covenant on Civil and Political Rights]”, Article 1(1) of which recognised the right of all peoples to freely pursue their economic, social and cultural development, which included the right to obtain employment of their choice.
g)Thus, the Tribunal was also required to consider whether the discrimination satisfied s 36(2)(aa).
h)The Tribunal did not consider whether the discrimination satisfied s 36(2)(aa), merely stating that the provision was not satisfied.
Limb 2
i)If the Tribunal considered whether the discrimination satisfied s 36(2)(aa), it erroneously found that “mere discrimination is not by itself enough” to satisfy that provision.
Materiality
j)A different outcome could have been realistically possible in the absence of error, in circumstances where: the Tribunal found that there was discrimination; and where conduct in the form of discrimination was plainly capable of satisfying s 36(2)(aa).
Limb 1: Whether the Tribunal failed to consider the first applicant’s discrimination claim under s 36(2)(aa) of the Migration Act
The applicants allege in the first limb to ground 1 that the Tribunal failed to consider the first applicant’s discrimination claims in its assessment of whether she satisfied the complementary protection criterion in s 36(2)(aa) of the Migration Act, instead only considering those claims in the context of the refugee criterion in s 36(2)(a).
To the extent that the factual basis for an applicant’s claims under s 36(2)(a) and s 36(2)(aa) overlap, when considering an applicant’s complementary protection claims under s 36(2)(aa), the Tribunal is entitled to rely on its findings of fact made in the context of its assessment of the applicant’s refugee claims for the purposes of s 36(2)(a): see DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10 at [27]; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]. However, the statutory tests posed by s 36(2)(a) and s 36(2)(aa) are different and if, in assessing complementary protection, the Tribunal relies on its earlier findings of fact, it will still need to consider whether, in the light of those facts, as a necessary and foreseeable consequence of being removed from Australia to the receiving country, there is a real risk that the applicant will suffer ‘significant harm’. Pursuant to s 36(2A) of the Migration Act, a non-citizen will suffer ‘significant harm’ if any one or more of the following apply:
(a)the non-citizen will be arbitrarily deprived of his or her life;
(b)the death penalty will be carried out on the non-citizen;
(c)the non-citizen will be subjected to torture;
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
In the present case, the Tribunal relied on the findings of fact made in the context of its consideration of whether the first applicant met the refugee criterion in assessing whether she met the complementary protection criterion. It is therefore necessary to look closely as the Tribunal’s findings in relation to discrimination made in its consideration of both the refugee and complementary protection criteria.
Under the heading ‘Father’s involvement with the South Vietnamese government’, the Tribunal found at [56] of its reasons that the first applicant’s father was employed with the South Vietnamese government and that he underwent re-education in 1974-1975, followed by a period of probation which concluded in 1978. The Tribunal then accepted at [57] that the first applicant is ‘a first-generation descendant of a former employee of the South Vietnamese government’.
Under the heading ‘Did the primary applicant suffer serious harm and systemic and discriminatory conduct prior to leaving Vietnam in … 2011 or during her visit in 2015?’, the Tribunal:
(a)acknowledged the first applicant’s evidence that she had not suffered any harm in Vietnam, but emphasised that she and her family were victims of discrimination that had a serious economic impact on them: at [58];
(b)accepted that there was historic discrimination against the children of former United States’ allies in Vietnam, basing this finding on country information which suggested that Vietnamese people previously allied to the United States were punished and their children denied opportunities, and that children of former government officials of South Vietnam may face career and political barriers if employed in state institutions: at [59] and [60];
(c)found that the first applicant was prevented from becoming a police officer in or around 2004, noting that this sole specific instance of discrimination to which the first applicant took the Tribunal to was consistent with country information: at [61];
(d)referred to the first applicant’s evidence that she had not been prevented from obtaining any of her formal documents or permits: at [62]; and
(e)found at [64]:
The Tribunal accepts that the primary applicant may have experienced some discrimination in that she was not able to pursue her career of choice when she left school, possibly because of her father’s background. However, the Tribunal finds that such discrimination did not rise to the level of persecution. The primary applicant’s capacity to subsist was never threatened. She was able to earn a livelihood, albeit not in her first career choice. There is no evidence that services were withheld from her.
Under the heading ‘Is there a real chance the applicant will be persecuted?’ the Tribunal:
(a)considered a letter that the first applicant’s father wrote on her behalf and then said at [90]:
The Tribunal has accepted that both she and her family has suffered some discrimination, but not that it rises to the level of persecution. There is no evidence to suggest that the father’s letter would result in a materially elevated level of discrimination, such as might put the primary applicant at serious or significant risk of harm.
(b)did not accept that working in low skilled work, such as agriculture, would result in economic hardship of the type envisaged by s 5J(5) of the Migration Act, noting that there was no evidence that the first applicant’s family did not have the capacity to subsist and no basis to conclude that the first applicant’s opportunities would be less than those available to her siblings or parents: [93];
(c)noted the first applicant’s submission that for descendants of former South Vietnamese government employees, official documents could only be obtained by bribery, and further noted the first applicant’s evidence that she had not paid a bribe to obtain a passport or twice depart Vietnam: at [95];
(d)accepted based on country information that corruption was still an issue in Vietnam, but noted that it did not appear to affect the first applicant directly and there was nothing to suggest that it would pose a significant barrier to her in the future such as to comprise serious or significant harm: at [96]; and
(e)found at [98]:
The Tribunal finds that there is not a real chance that the primary applicant will come to serious harm if she returns to Vietnam. For the same reasons, the Tribunal finds that there is not a real risk that the primary applicant will suffer significant harm if she is removed to Vietnam.
The Tribunal’s findings in relation to complementary protection are set out at [100] of its reasons, which is under the heading ‘Conclusions’. The Tribunal said:
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 there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on her for the reasons specified in paragraphs (a - e) of the definition of ‘torture’ in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional inflection of severe pain or suffering, or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s.5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty.
The applicants submitted that the Tribunal’s findings in relation to the first applicant’s discrimination claims occurred only in the context of s 36(2)(a) of the Migration Act and not in the context of s 36(2)(aa). This submission was based on the headings and terminology used by the Tribunal, with phrases such as ‘serious harm’, ‘systemic and discriminatory conduct’ and ‘persecuted’ associated with the refugee criterion in s 36(2)(a). The applicants acknowledged that the Tribunal also referred to ‘significant harm’, which is relevant to the assessment of the complementary protection criterion, at [90], [94] and [96], but submitted that in these paragraphs, the Tribunal was addressing the refugee criterion, given the headings it used, and its references to ‘significant harm’ indicate that the Tribunal was being loose with language and treating the phrases ‘serious harm’ and ‘significant harm’ as synonymous.
The applicants acknowledged that the Tribunal made a finding about ‘significant harm’ at [98] where it said, ‘[f]or the same reasons, the Tribunal finds that there is not a real risk that the primary applicant will suffer significant harm if she is removed to Vietnam’. However, the applicants submitted that this is merely a conclusion and not reasons. The applicant’s submitted that the phrase ‘for the same reasons’ is meaningless given that the tests for ‘serious harm’ and ‘significant harm’ are different, and any finding that the discrimination the applicant may face does not amount to ‘serious harm’ says nothing about whether it amounts to ‘significant harm’ and why. The applicants also submitted that the Tribunal’s reasons at [100] merely paraphrase the definition of ‘significant harm’ and state a bare conclusion that the definition is not satisfied without any analysis as to why this finding was reached, which is a sharp contrast to its detailed analysis of the refugee criterion.
I do not accept the applicants’ submissions. The Tribunal’s reasons need to be read as a whole and when this is done, it is clear that the Tribunal understood the different statutory tests that apply in relation to the refugee criterion and the complementary protection criterion. This can be seen from its discussion about the criteria for a protection visa at [41] to [49] of its reasons, and also from its consideration of the first applicant’s claims.
The Tribunal’s reference to the ‘same reasons’ incorporates the findings of fact that it made in reaching the conclusion that the discrimination the first applicant may face in the future does not amount to serious harm. Importantly, those findings of fact include the findings that:
(a)the only incidence of specific past discrimination that the first applicant identified was not being able to pursue the career of her choice when she left school;
(b)any discrimination affecting the ‘employability’ of the first applicant or her family members has not and is not likely to threaten their capacity to subsist;
(c)although the first applicant claimed that official documents could only be obtained by bribery, she did not have to pay a bribe for her passport or to leave the country;
(d)although corruption is still an issue in Vietnam, it has not affected the applicant directly so far and there is nothing to suggest that it will pose a significant barrier in the future, to amount to serious or significant harm; and
(e)there is not a real chance that the first applicant will not be able to access official documents in Vietnam.
It is in the light of these findings that the Court should view the Tribunal’s consideration at [100] of its reasons explaining why the first applicant did not face ‘significant harm’. In expressing the view that none of the limbs of the definition of ‘significant harm’ were met, the Tribunal should be understood to be explaining that, on its findings of fact made about the level of discrimination the first applicant would face, none of the types of discrimination would meet any of the limbs of the definition of significant harm. It is not simply a recitation of the statutory definition of ‘significant harm’ that should be considered in isolation to the rest of the Tribunal’s reasons. Further, I do not place any weight on the Tribunal’s failure to expressly acknowledge the reference to discrimination in the definition of ‘torture’ in s 5(1) of the Migration Act, which the applicants’ Counsel submitted was ‘telling’ in the context of his submission that the Tribunal had, at [100], simply paraphrased the definition of ‘significant harm’ without consideration of the facts of the case. The Tribunal at [47] of its reasons acknowledged that the terms ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are defined in s 5(1) of the Migration Act and there is nothing in the Tribunal’s reasons to suggest that it did not properly understand those definitions.
Further, any references to ‘significant harm’ in the Tribunal’s discussion in the context of the refugee criterion should be properly understood as the Tribunal, for efficiency, expressing a view that the treatment the subject of the finding would not amount either serious harm or significant harm, and thereby making a finding for the purpose of its subsequent consideration of the complementary protection criterion. They do not indicate that the Tribunal has been loose with its language or that it has misunderstood the relevant statutory tests.
The applicants relied on a previous judgment of mine, FJK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 211 (FJK20), to support a principle that the phrase ‘in view of the above findings’ is not sufficient to constitute consideration of complementary protection. This judgment does not assist the applicants in the present case. Each case is fact specific and FJK20 does not stand for any general principle that an expression such as ‘in view of the above findings’ will never be sufficient to show proper consideration of an applicant’s complementary protection claims: see FJK20 at [89] and [90]. The present case is readily distinguished from FJK20 for a number of reasons, but most notably because in FJK20 the Tribunal, in its consideration of the refugee criterion, found that s 5K of the Migration Act applied and did not make comprehensive findings about the chance of harm to the applicant in the reasonably foreseeable future. In the present case, the Tribunal has made express findings about the nature and severity of the discrimination that the first applicant faced in the past and the likely impact of any discrimination she may face in the reasonably foreseeable future.
I accept the Minister’s submission that, when the Tribunal’s reasons are read as a whole and considering the nature of the claim, the Tribunal’s concern was that the first applicant’s discrimination claims did not give rise to a magnitude of harm required for the purposes of satisfying ss 36(2)(a) and 36(2)(aa), and the Tribunal’s reasons for its conclusions with respect to complementary protection were open to it on the evidence.
Limb 2: Whether the Tribunal misinterpreted s 36(2)(aa) of the Migration Act
The second limb to ground 1 is an alternative to the first limb if I find that the Tribunal considered the first applicant’s discrimination claim under s 36(2)(aa) of the Migration. The applicants assert by the second limb that the Tribunal misinterpreted the complementary protection criterion in s 36(2)(aa).
This is said to be evident from [94] of the Tribunal’s reasons where it said:
The Tribunal put to the primary applicant at the hearing that discriminatory conduct by the government of her country of origin did not, of itself, comprise serious or significant harm to her and invited the applicant’s further comment as to why she said that the discrimination amounted to serious or significant harm.
The relevant part of the transcript of the Tribunal hearing records is where the Tribunal member said to the first applicant:
I don’t think you’re lying about discrimination. I believe you when you say there is discrimination, but that’s not the test for being a refugee. I need to decide if you have a well-founded fear of persecution. The test is real chance of serious harm if you go back to Vietnam. That might involve discrimination, but mere discrimination is not by itself enough. There are some types and levels of discrimination that exist in every country. So I don’t want you to think that you are not believed about discrimination in Vietnam, but that’s not the test by itself. I am having trouble seeing why you are afraid that serious harm will happen to you. Your father does not seem to have suffered serious harm since you were born. Your brothers and sisters in Vietnam are not suffering serious harm. Is there something you want to tell me about that?
It can be seen from the language used in these two extracts that the comments made at the hearing were directed primarily, if not solely, to the refugee criterion, and the Tribunal’s observations at [94] of its reasons were directed to both the refugee criterion and the complementary protection criterion. Given that the comments at the hearing were not directed to complementary protection, they do not assist the Court in determining whether the Tribunal has misunderstood the complementary protection criterion.
The Tribunal’s comments at [94] of its reasons do not suggest that the Tribunal proceeded on the incorrect understanding that discrimination cannot ever amount to significant harm. When the Tribunal reasons are read as whole, it is clear that the Tribunal properly identified and understood the statutory tests (see in particular [41] to [49] of the Tribunal reasons). Further, while some discrimination can amount to significant harm, not all discrimination will amount to significant harm. I accept the Minister’s submission that the Tribunal reasons at [94] are fairly understood as reflecting the uncontroversial proposition that not all harm gives rise to a protection visa being granted.
Ground 1 is not established.
Ground 2
Ground 2 of the applicants’ amended application reads:
The Tribunal denied the applicants procedural fairness, thus making a jurisdictional error.
Particulars
Background
a) Particulars 1(a)-(c) are repeated and relied upon.
b)The applicants’ representative did not attend the hearing held on 15 November 2021.
c)The applicants claimed at that hearing that they were expecting him to attend it.
d)The Tribunal then promised as follows at that hearing (emphasis added): “The Tribunal is going to proceed with the hearing today in the absence of your agent. I will ask you at the end of the hearing if there is anything else that you want to tell me about your matter and I will give you the opportunity to tell me if you think there is any problem that has arisen because you did not have an agent today…”
e) The Tribunal never rejected the claim referred to at particular 2(c).
f)The Tribunal found at CB 222-223 [28]: “The applicants do not appear to the Tribunal to have the sophistication necessary to hold their representatives to proper account. … It is plausible that the applicants have not been aware of the content of the various documents filed by their representatives and/or have not been accurately advised on what information and evidence needs to be before the Department and Tribunal.”
g)One such document filed by the applicants’ representative, with his signature, but without the applicants’, indicated that he would not attend that hearing.
Error
h)The Tribunal was obliged under s 425 of the Act to give the applicants a meaningful opportunity to give evidence and present arguments.
i)The Tribunal never fulfilled the limb of the promise referred to and emphasised at particular 2(d).
j)By not fulfilling that aspect of its promise, the Tribunal misled the applicants, who lost an opportunity to argue whether any problems arose from the lack of representation.
k) The Tribunal’s misleading promise amounted to a denial of natural justice.
Materiality
l)There is nothing to justify departure from the prima facie rule that errors in the form of denials of procedural fairness are material and therefore jurisdictional.
Ground 2 alleges that the Tribunal breached s 425 of the Migration Act, by failing to afford the applicants a real and meaningful opportunity to give evidence and present arguments.
Section 425(1) of the Migration Act provides:
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.
The invitation to attend a hearing must be a real and meaningful invitation and not a ‘hollow shell or an empty gesture’: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759 at [31]. In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126, the Full Court considered cases where the courts had found that the Tribunal breached s 425 and provided the following summary at [37]:
On the other hand, it is also clear that s425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
The obligation to afford an applicant a real and meaningful invitation to attend a hearing does not, however, require that the Tribunal afford the applicant the best possible opportunity to give evidence and present arguments. After considering a number of High Court cases regarding s 425, Keane CJ said in Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 (SZNVW) at [30]:
None of the decisions of the High Court to which reference has been made affords support for the view that a hearing does not conform to the requirements of s 425 of the Act merely because the applicant might, if better advised, have chosen to present a more compelling case.
In the present case, the applicants rely on a representation made by the Tribunal at the commencement of the hearing. The following exchange took place between the member and the applicants (emphasis added):
MEMBER HENDERSON: … Were you expecting Mr Au to be here today?
INTERPRETER: He was here on the 28th of October so I thought he will be appear today as well.
Member Henderson: Did he tell you that he could not attend today?
INTERPRETER: No, I haven’t heard anything from him.
MEMBER HENDERSON: Have you heard anything from him at all since the previous hearing of this matter?
INTERPRETER: He did send me some emails. I think - I thought that’s all the documents finished for me, but I didn’t know today he didn’t appear.
MEMBER HENDERSON: The Tribunal is going to proceed with the hearing today in the absence of your agent. I will ask you at the end of the hearing if there is anything else that you want to tell me about your matter and I will give you the opportunity to tell me if you think there is a problem that has arisen because you did not have an agent today…
Towards the end of the hearing, the Tribunal asked the applicants three times whether there was anything further they wished to say. The Tribunal expressed the view that they had not been disadvantaged by not having a representative at the hearing, but indicated that it would give the matter more thought.
The applicants submitted that the Tribunal breached s 425 of the Migration Act by failing to afford them a meaningful opportunity to give evidence and present arguments, because it did not, at the conclusion of the hearing, fulfil its promise to the applicants to give them an opportunity to tell the Tribunal if they thought any problems arose because they did not have a representative at the hearing. This was said to be an obligation arising from its promise at the start of the hearing that was distinct from the more general opportunity for the applicants to say anything further about the matter. The applicants drew attention to the Tribunal’s observations that the applicants did not appear to have the sophistication necessary to hold their representatives to account, and that they may not be aware of the content of all the documents that were before the Tribunal.
At the hearing, Counsel for the applicants submitted that, were it not for the Tribunal’s unfulfilled promise, it is reasonable to assume that the applicants would have said something about the non-attendance of their representative and that might have prompted the Tribunal to change the way it conducted the review. Counsel for the applicants submitted that the obligation in s 425 refers to an opportunity to ‘give evidence and present arguments’ and a representative will often make submissions at the conclusion of a Tribunal hearing. Were it not for the unfulfilled promise, the applicants might have told the Tribunal that they were disadvantaged by the absence of their representative and would have made submissions to the Tribunal about why they should have been able to have their representative next to them to make submissions, and the representative may then have made submissions that might have changed the Tribunal’s mind on the issues in the proceeding.
The Minister submitted that it was for the applicants to make out the case before the Tribunal and if they wished to make a submission about any problems they considered arose from the representative not attending the second hearing it was open to them to do so. Not only did the applicants fail to raise issues during the hearing but they also failed to raise any issues in the two weeks between the conclusion of the hearing and when the Tribunal made its decision. The Minister submitted that it was also relevant that the Tribunal commented at the end of the hearing that it did not think there had been any difficulty because of the representative’s failure to attend and noted that the applicants did not disabuse the Tribunal of this notion prior to the adjournment of the hearing.
The Minister submitted, with respect to the applicants’ contention that the Tribunal found them to be unsophisticated, that the Tribunal’s findings was not that the applicants were so unsophisticated that they could not make out their claims and raise issues to the Tribunal, but rather that they did not have the sophistication to make a professional complaint. The Minister submitted that overall the Tribunal afforded the applicants a meaningful opportunity to attend a hearing before it and give evidence and present arguments. The hearing lasted for over two hours and the Tribunal canvassed the applicants’ claims for protection throughout that hearing.
In support of this ground, the applicants relied on Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26 (Nathanson), and the references within Nathanson to Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 (WZARH).
Nathanson involved an application for review of a decision not to revoke the mandatory cancellation of the appellant’s visa on character grounds. The delegate in making the decision was required to apply a direction made pursuant to s 499 of the Migration Act known as Ministerial Direction No 65, which set out a number of factors that the decision-maker was required to take into account in exercising the discretion to revoke (or not revoke) the cancellation of the appellant’s visa. Shortly before the Tribunal hearing, Ministerial Direction No 65 was replaced by Ministerial Direction No 79. The Tribunal applied Ministerial Direction No 79, as it was required to do. Ministerial Direction No 79 was similar in many respects to Ministerial Direction No 65, but relevantly it contained an additional paragraph articulating a principle that crimes of a violent nature against women and children are viewed very seriously regardless of the sentence imposed. At the hearing, the Tribunal gave the appellant a copy of Ministerial Direction No 79, with the changes from Ministerial Direction No 65 marked in red, and represented to the appellant that there were only minor changes to the Direction, with most of the changes related to how the Tribunal is to treat crimes where women and children are involved and, with respect the appellant’s conviction history, suggested those changes would be of minor relevance. The Tribunal did not put the appellant on notice that domestic violence was to be viewed seriously and the appellant did not address this in his closing submissions. The Tribunal then had regard to two incidents of domestic violence in its reasons, which it viewed as ‘very serious’.
While the main principle considered in Nathanson relates to materiality, the applicant in the present case seeks to draw an analogy between Nathanson and the present case by suggesting that in each case, the Tribunal misled the applicants into thinking that one state of affairs would occur, and then something different occurred.
The applicants rely in particular on [41] of Nathanson, where Gageler J refers to the joint judgment of Gageler and Gordon JJ in WZARH, including the following passages:
There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.
Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.
In WZARH, the respondent was interviewed by an independent merits reviewer in relation to his request for a refugee status assessment, the reviewer told the respondent at the interview that she would undertake a fresh re-hearing of the respondent’s claims and would then make a recommendation about whether he is a refugee, which would be provided to the Minister. For some reason, after the interview the reviewer became unavailable and the independent merits review was completed by a different reviewer, who did not conduct a fresh interview, but rather based his decision on the audio and transcript of the interview with the original reviewer, as well as the other documents available. The reviewer found that the respondent was not a refugee, and based this decision in part on his impression of the respondent’s credibility. The High Court found that the respondent had been denied procedural fairness because the new reviewer did not give him an opportunity to be heard on the question of how the review should proceed once the process was altered by the withdrawal of the original reviewer. The majority emphasised the importance of the decision-maker being able to assess demeanour, and considered the matter to be an example of a circumstance referred to by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [25] in which ‘the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision’.
Neither Nathanson nor WZARH relate to reviews conducted under Part 7 of the Migration Act where the Tribunal is required to comply with s 425. While I have had regard to both judgments, they are not analogous to the present case.
I do, however, accept that a departure from a representation by a Tribunal member as to the procedure to be adopted can, in some circumstances, amount to a breach of s 425 of the Migration Act. For example, in Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairsand Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62, the Tribunal identified inconsistencies in the appellant’s evidence and told the appellant that she would write to him about the inconsistencies in the dates and numbers of his alleged detentions, and he would then have an opportunity to respond. The Tribunal did not in fact write to the appellant as it indicated it would. The Court held that the Tribunal member’s comments at the end of the hearing represented a view that the hearing was incomplete, and there was no indication that she had subsequently changed her mind. The High Court said at [27]:
One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.
In the present case, I accept that, after indicating to the applicants that it would give them an opportunity at the end of the hearing to comment on whether they had been disadvantaged by not having a representative, the Tribunal did not expressly afford them that opportunity at the end of the hearing. However, I am not satisfied that this amounts to a breach of s 425 of the Migration Act.
The failure to expressly afford the applicants an opportunity to comment on whether they were disadvantaged by their representative’s non-attendance will only amount to a breach of s 425 if it denied the applicants a real and meaningful opportunity to give evidence and present arguments in relation to the issues arising in relation to the decision under review. Any disadvantage that the applicants may have faced as a result of the non-attendance of their representative is not itself an ‘issue arising in relation to the decision under review’. To resolve this ground, it is necessary to consider the impact of the failure to invite the applicants to comment on any disadvantage arising from their representative’s non-attendance, on their opportunity to otherwise give evidence and present arguments on the issues arising in relation to the decision under review. The issues arising in relation to the decision under review in the present case arose from the first applicant’s claims for protection as articulated before the delegate and before the Tribunal.
The hearing was reasonably lengthy, lasting over two hours. The first applicant was given an extensive opportunity to discuss her claims for protection. The detail she provided to the Tribunal easily exceeded the level of detail contained in her written application and also appears to be greater than the detail she provided to the delegate. In addition to responding to the Tribunal’s specific questions, the first applicant was invited at the end of the hearing to tell the Tribunal anything else she wished to say. She confirmed to the Tribunal that she had already given all the documents on which she relied to the Department and the Tribunal. The second applicant was also given an opportunity to tell the Tribunal anything he wished to say. In circumstances where the second applicant did not advance his own claims for protection, his evidence was much briefer and, in effect, amounted to a submission that the first applicant was telling the truth. There is nothing in the transcript and no other evidence before the Court to suggest that either applicant lacked the capacity to adequately respond to the Tribunal’s questions and there is nothing to suggest that either applicant had any difficulty understanding the Tribunal or being understood by the Tribunal.
It is clear that the applicants were afforded a real and meaningful opportunity to discuss their claims for protection. It is clear from the Tribunal’s comments at the conclusion of the hearing that the Tribunal’s initial impression was that the applicants had been afforded a real and meaningful opportunity to give evidence and present arguments in relation to the issues arising from the decision under review.
It seems to me that, at its highest, the Tribunal’s failure to invite the applicants to comment on whether they were disadvantaged by not having a representative amounted to the denial of an opportunity to tell the Tribunal whether, with a representative, they might have been able to present a stronger case. However, that does not mean that the applicants were not afforded a real and meaningful opportunity to give evidence and present arguments about the issues arising from the decision under review. As discussed above, the obligation in s 425(1) is not breached simply because an applicant might have presented a stronger or more compelling case if better advised: SZNVW at [30]. Therefore, to the extent that the Tribunal might have ‘misled’ the applicants about the procedure it would follow, I am not satisfied that it did so in a way that deprived the applicants of a real and meaningful invitation to attend a hearing to give evidence and present arguments in relation to the issues arising from the decision under review.
I am satisfied that the Tribunal complied with its obligations under s 425 of the Migration Act. Ground 2 is not established.
GROUND 3
Ground 3 of the applicants’ amended application reads:
The Tribunal was required, but failed, to consider, on or after the hearing of 15 November 2021, whether to adjourn it, which was a consideration that clearly arose from the circumstances. Alternatively, the Tribunal’s decision not to adjourn that hearing was legally unreasonable. Either way, the error was jurisdictional.
Particulars
Background
a) Particulars 2(a)-(g) are repeated and relied upon.
Limb 1
b)The Tribunal failed to consider whether to adjourn that hearing, upon new circumstances coming to light at that hearing, namely the never rejected claim that the applicants were expecting their representative to attend that hearing.
c) That failure amounted to a constructive failure to exercise its jurisdiction.
Limb 2
d)Alternatively, if the Tribunal considered whether to adjourn that hearing on or after 15 November 2021 in light of such new circumstances, the decision not to adjourn was legally unreasonable: it would be difficult to reconcile a proposition that the decision not to adjourn was legally reasonable with the passage in the Tribunal’s decision where it expressly acknowledged that the applicants were unsophisticated and possibly did not know what documents should be, or were (including the form signed by the representative, but not by the applicants, indicating that the representative would not be attending the hearing), before the Tribunal.
Materiality
e)Limb 1: an adjournment would have allowed the representative to attend an adjourned hearing, which in turn would have allowed him to assist the applicant during that hearing.
f)Limb 2: errors in the form of legal unreasonableness are always material and thus jurisdictional.
As identified in the applicants’ submissions, the Tribunal has a power conferred by s 427(1)(b) of the Migration Act to adjourn a hearing from time to time. The issues raised by this ground are:
(a)whether the Tribunal was required to, but failed to, consider the possible exercise of its discretion to adjourn the hearing in circumstances where the applicants were surprised by their representative’s non-attendance at the hearing (limb 1); and
(b)if the Tribunal did exercise the discretion, whether the Tribunal acted unreasonably in not granting an adjournment.
Limb 1
The applicants submitted that, even though they did not seek an adjournment, the need to consider exercising the discretion to adjourn the hearing arose from the circumstances, including:
(a)the applicants’ surprise at their representative’s non-attendance at the second hearing;
(b)the absence of any rejection by the Tribunal of the applicants’ surprise; and
(c)the Tribunal’s finding that the applicants were unsophisticated and may not have been aware of the documents filed on their behalf, including perhaps the response to the hearing invitation on which the representative indicated that he would not attend.
The applicants submitted that, given the otherwise detailed reasons given by the Tribunal for refusing the various adjournment requests, the conspicuous absence of any reasons to explain why it did not adjourn the second hearing upon new circumstances arising at that hearing, namely the applicants surprise at their representative’s non-attendance, indicates that it did not consider exercising its discretion to adjourn the hearing.
The applicants acknowledged that the Tribunal said at the conclusion of the hearing that it did not consider that they had been disadvantaged by not having a representative at the hearing, but was going to give the matter some more thought. However, the applicants submitted that the Tribunal reasons at [28] indicate that the only thought the Tribunal gave to this issue was whether the Tribunal should use discrepancies in the history of the matter to test the credibility of the applicants.
The Minister submitted that no requirement to consider whether to adjourn the hearing arose because:
(a)an applicant not being assisted by a representative is not, in and of itself, a basis to adjourn a hearing;
(b)while the Tribunal did not expressly reject the applicants’ claim that they had expected their representative to attend the second hearing, it did not positively accept the claim and found that the non-attendance was ‘allegedly’ unexpected;
(c)the Tribunal’s finding that the non-attendance was allegedly unexpected should be considered along with other matters, including that the applicants through their representative indicated prior to the hearing that the representative would not attend, that the first applicant told the Tribunal she had already given all her information to the Tribunal and Department, that the applicants have not had contact with their representative since a hearing on 28 November 2021, and that the representative’s request for an adjournment was made on the basis that he was on leave, and not because he wanted further time to provide submissions of material in support of the application;
(d)the applicants were given an opportunity to give evidence at the hearing; and
(e)the Tribunal did not make adverse findings in relation to any inconsistency between the first applicant’s documentary evidence and the evidence she gave at the hearing.
It is unnecessary for me to decide whether, in the circumstances, the Tribunal had an obligation to consider whether to adjourn the hearing. This is because I am not satisfied that the applicants have established that the Tribunal failed to consider whether or not to adjourn the hearing as a result of the applicants’ surprise at the non-attendance of their representative at the hearing.
There was some dispute between the parties as to whether the absence of express reasons addressing whether or not the Tribunal considered granting an adjournment upon the applicants being surprised that the representative did not attend the hearing indicated that the Tribunal had not considered the exercise of the discretion. The applicants relied on Dunasemant v Minister for Immigration [2021] FCA 128 (Dunasemant) to support the proposition that a conspicuous absence from otherwise detailed reasons of a reference to a particular consideration might indicate that it is unlikely that the Tribunal incorporated this consideration in its reasons. The Minister submitted that the applicants’ reliance on Dunasemant was misplaced because it concerned a decision under s 501CA(4) of the Migration Act and related to a failure to make a finding with respect to a material fact not a procedural step. The Minister further submitted that there is no requirement on the Tribunal to expressly refer to its consideration of a procedural step in its reasons: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 (SZGUR) at [69] (per Gummow J). In reply, the applicants submitted that SZGUR merely states that s 430 of the Migration Act does not create a general requirement that the Tribunal record the procedural steps taken and the applicants are not asserting by ground 3 that any such general obligation exists. Rather, by ground 3 the applicants call attention to the conspicuous absence from otherwise detailed reasons of any reasons to indicate that the Tribunal considered whether to grant the applicants an adjournment upon their surprise at their representative’s non-attendance at the hearing. The applicants submitted that whether the step is substantive or procedural, the authority in Dunasemant arises as a matter of logic and common sense.
It can be seen from this that both parties accept that the Tribunal is not required to record its reasons in relation to procedural steps. The dispute between the parties relates to the inferences to be drawn from the absence of discussion in the Tribunal’s reasons about whether the Tribunal hearing should be adjourned because the applicants were surprised by the representative’s non-attendance, where it otherwise set out its reasons for refusing other adjournment requests.
I accept that the Tribunal is not required to set out its reasons for procedural decisions: SZGUR at [69]. It follows that a failure to refer in its reasons to any consideration of whether or not the Tribunal considered adjourning the hearing upon the applicants’ surprise at their representative’s non-attendance does not, of itself, mean that the Tribunal did not consider the possible exercise of the discretion: see, for example, BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35; [2018] FCAFC 114 (BVD17) at [49]. I also accept that there may be some cases where a failure to refer to the exercise of a discretion in its reasons may support an inference that the Tribunal did not consider the exercise of the discretion: BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [50]; BVD17 at [50]; CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [39]. However, I do not consider that the Tribunal failed to consider whether or not to adjourn the hearing in the present case.
The Tribunal in its reasons referred to previous applications for an adjournment under a heading ‘Background’ and the subheading ‘History of representation for the applicants’. When viewed in their proper context it appears to be more accurate to describe these paragraphs, and in particular [9]-[27] of the Tribunal’s reasons, as amounting to a recitation of the procedural history of the matter based on documents in the Tribunal file, rather than an explanation of the reasons for procedural decisions made by the Tribunal. The paragraphs largely extract or summarise the content of communications between the Tribunal and the applicants and their representatives. When understood in this context, the reference to other procedural decisions in the Tribunal’s reasons does not give rise to an inference that the lack of any reasons to explain whether or not it considered adjourning the hearing upon the applicant’s advising that they were surprised the representative did not attend shows that the Tribunal did not in fact consider this.
The Tribunal then said at [27] and [28] of its reasons:
27.Mr Au subsequently filed a hearing certificate confirming that he would not be attending the hearing. Notwithstanding that prior confirmation to the Tribunal, the applicants indicated that they were surprised by his absence at the hearing. However, they did not seek to adjourn the proceedings on the basis that their representative had not appeared.
28.The Tribunal has real concerns about the conduct of this matter by the various agents for the applicants. The applicants do not appear to the Tribunal to have the sophistication necessary to hold their representatives to proper account. The consequence is that the Tribunal has been reluctant to use discrepancies in the history of the matter to test the credibility of the applicants or the consistency of their claims. It is plausible that the applicants have not been aware of the content of the various documents filed by their representatives and/or have not been accurately advised on what information and evidence needs to be before the Department and Tribunal.
These paragraphs do not indicate that the Tribunal failed to consider whether or not to adjourn the hearing upon the applicants indicating their surprise at the representative’s non-attendance. Paragraph 27 is simply a recitation of factual matters, including that the applicants did not seek to adjourn the hearing on the basis that the representative had not appeared. Paragraph 28 is an observation about the conduct of the matter by the representatives engaged at various times on behalf of the applicants and the concerns that the Tribunal held as a result of the unsatisfactory conduct of the applicants’ representatives. The paragraph says nothing about the impact of the most recent representative’s failure to appear at the hearing or the impact on the applicants’ ability to give evidence at the hearing. I cannot draw any inference from [28] as to whether or not the Tribunal considered the possible exercise of its discretion to further adjourn the hearing based on the applicants’ surprise at the representative’s non-attendance.
There is therefore nothing in the reasons themselves from which I can infer that the Tribunal did not turn its mind to whether or not it should further adjourn the hearing as a result of the applicants’ surprise at the representative’s non-attendance.
I have also considered the transcript of the Tribunal hearing in its entirety. There is nothing in the transcript which gives rise to any inference that the Tribunal failed to consider the exercise of the discretion. When the applicants expressed surprise at the representative’s non-attendance, the Tribunal expressly stated that it was going to proceed with the hearing in the absence of the representative. The Tribunal then said at the end of the hearing:
I don’t think you’ve been disadvantaged by not having an agent today, but I’m going to give that some thought. I’m going to adjourn the hearing now and I will either make a decision or I will write to your agent and give him the opportunity to make submissions. I haven’t decided which one of those I’m going to do yet. The Tribunal will adjourn now and you will hear from us one way or the other.
I cannot infer on the basis of these comments that the Tribunal failed to consider the exercise of the discretion. The express words of the Tribunal acknowledging that the hearing will proceed do not indicate that the Tribunal did not consider whether or not it ought to adjourn the hearing. If any inference is to be drawn from the Tribunal’s words at the end of the hearing, that inference would be that those words, in conjunction with the Tribunal’s conduct of simply making a decision without inviting further submissions, reflect that the Tribunal considered whether to seek further submissions from the representative after the hearing and decided not to exercise that discretion. It says nothing about whether or not the Tribunal failed to turn its mind to whether or not the applicants should be granted a further adjournment.
The applicants bear the onus of establishing that the Tribunal failed to consider exercising its discretion to adjourn the hearing (assuming that an obligation to consider the exercise of the discretion in the particular circumstances of this case arose). The applicants have not discharged that onus and therefore the first limb of ground 3 fails to establish jurisdictional error.
Limb 2
The second limb to ground 3 proceeds on the alternative premise that the Tribunal considered whether or not to adjourn the hearing upon the applicants’ expression of surprise that the representative was not in attendance, and decided not to adjourn. The applicants assert that any decision not to adjourn the hearing was unreasonable. The applicants submitted that it is difficult to reconcile the Tribunal’s decision not to adjourn the hearing with its express acknowledgement at [28] that the applicants were unsophisticated and possibly did not know what documents should be, or were, before the Tribunal. The applicants submitted that the only way of reconciling such propositions would be to assume that such knowledge could not possibly change the Tribunal’s mind, whatever the content of the documents to be submitted to the Tribunal, which would indicate a closed mind. The applicants rely on a passage from the case of Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93, where a lack of any time sensitive aspect to the Tribunal’s review and no objective basis for any urgency in making a decision were seen as relevant factors in the Court’s finding that the Tribunal’s refusal to adjourn the review was unreasonable.
The Minister submitted that the Tribunal’s decision not to invite further submissions was reasonable given the Tribunal did not think that the applicants had been disadvantaged, and the fact that it did not make any adverse findings in relation to inconsistencies between the applicants’ oral and documentary evidence, and given that it clearly considered the oral evidence.
In my view, any decision not to adjourn the review or invite further submissions on the basis that the applicants were surprised by their representative’s non-attendance was not legally unreasonable.
Contrary to the applicants’ submissions, it is not difficult to reconcile the Tribunal’s decision not to adjourn the hearing and its observations that the applicants appeared to lack the sophistication necessary to hold their representatives to account and that they may not have been properly advised on what evidence they would need to provide. The assertion of unreasonableness is not based on the applicants needing a further opportunity to provide evidence to the Tribunal. Rather, the assertion is that the Tribunal acted unreasonably in not adjourning the review in circumstances where the applicants expected to have a representative at the hearing, but that representative did not attend. This is a separate issue to whether the applicants were able to hold their representatives to account and were properly advised by the representatives, although I do acknowledge that the history of the matter and the difficulties with the applicants’ past representation may form part of the factual matrix in which unreasonableness is to be assessed.
The Tribunal had regard to the evidence that the applicants previously provided, including documentary evidence and evidence given at an interview with the delegate. The Tribunal also conducted a lengthy hearing at which it gave both applicants an opportunity to present evidence, and the Tribunal elicited evidence from the first applicant that appears to be more detailed than any evidence the first applicant had previously given, including when she was assisted by a representative.
It is not uncommon for applicants, even those who are represented, to appear at a Tribunal hearing without a representative. Tribunal members are experienced and skilled in eliciting oral evidence from applicants including from those who are not represented. It does not follow from the possibility that the applicants may not have been properly advised on what evidence to provide prior to the hearing that it was unreasonable for the Tribunal to proceed with the hearing and to give the applicants an opportunity to give oral evidence in the absence of their representative. It is notable that, after conducting the hearing and eliciting evidence from the applicants, the Tribunal formed the view that the applicants were not disadvantaged by their representative’s non-attendance.
While the applicants are correct to say that their representative did not have an opportunity to make submissions at the hearing, the representative was aware prior to the hearing that he would not be in attendance and did not make any request to have an opportunity to make submissions after the hearing. The applicants had an opportunity to tell the Tribunal anything they wanted to say and it was not unreasonable for the Tribunal not to adjourn the hearing or otherwise afford the applicants a further opportunity to make submissions.
The other matter referred to by the applicants is the lack of any urgency to the Tribunal hearing. While I accept that there does not appear to be anything in the circumstances of this case that required the Tribunal to urgently conduct the hearing, it does not follow that a failure to adjourn a hearing where there is no urgency will necessarily be unreasonable. I do not accept that the lack of urgency in the present case is a basis for inferring that the Tribunal decision not to adjourn the hearing was unreasonable.
The second limb of ground 3 is therefore not established.
Conclusion
I have found that the applicants have not established that the Tribunal decision is affected by jurisdictional error. It follows that the application to this Court is dismissed.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 6 February 2023
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