Ett19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 518
•6 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ETT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 518
File number(s): SYG 3154 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 6 May 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants found not to have well-founded fears of harm – whether the Tribunal erred in considering the second applicant’s nationality and residency status considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 2, 5J, 36, 65, 91R, 414, 415, 359, 473DC, 476, 504
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151
BOO19 v Minister for Immigration,Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3461
BWX15 v Minister for Immigration and Border Protection [2018] FCA 64
CHP16 v Minister for Immigration,Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1818
CJE19 v Minister for Immigration,Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1620
CPL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 519
CQH19 & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 517
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Immigration and Citizenship v Le (2007) 164 FCR 151
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719
Mouflih v Minister for Home Affairs [2019] FCA 1744
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
Number of paragraphs: 80 Date of hearing: 17 March 2021 Place: Sydney Counsel for the Applicants: Mr O Jones Solicitors for the Applicants: Dobbie and Devine Immigration Lawyers Pty Ltd Counsel for the Respondents: Mr G Johnson Solicitors for the Respondents: Sparke Helmore ORDERS
SYG 3154 of 2019 BETWEEN: ETT19
First Applicant
ETU19
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
6 MAY 2021
THE COURT ORDERS THAT:
1.The application filed on 2 December 2019 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 November 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. The first applicant is the father of the second applicant. In these reasons I refer to the second applicant as “the applicant” because she is the applicant making relevant claims. The applicant has two sisters and a mother who pursued separate protection visa applications and which were heard consecutively by this Court.[1]
[1] CQH19 & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 517and CPL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 519
The background facts relating to this matter are otherwise derived from the submissions of the parties.
The applicant father is a citizen of Malaysia. The applicant, his daughter, is stateless. As already noted, the applicant father’s wife and two other daughters are applicants in other proceedings before the Court.
On 24 June 2013 the applicant father applied for a protection visa. He claimed to fear harm if returned to Malaysia on the basis of his Chinese ethnicity, Buddhist religion, political activity he has engaged in whilst in Australia, and for economic reasons. The applicant was born in Australia in 2011. She claimed to fear harm if returned to Malaysia due to her “unverified status” because her father is legally married to two Malaysia citizen wives.
On 24 November 2015 the delegate refused to grant the applicants protection visas.[2] The applicants applied to the Tribunal for review of the delegate’s decision.
[2] Court Book (CB) 126
On 4 November 2019 the Tribunal affirmed the decision under review.[3] The Tribunal was required to consider whether the applicant father satisfied s 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). The applicant father had previously been refused a protection visa in 2003. His subsequent protection visa application, initially deemed invalid, was then deemed valid following the Full Federal Court’s judgment in SZGIZ v Minister for Immigration and Citizenship[4]. The Tribunal considered whether the applicant satisfied either s 36(2)(a) or (aa) of the Migration Act, and additionally whether she was entitled to the grant of a protection visa under s 36(2)(c) on the basis of her membership of the applicant father’s family.
[3] CB 289
[4] (2013) 212 FCR 235; see CB 129; 293 [27]-[28]
The Tribunal was not satisfied that either of the applicants met the requirements for the grant of a protection visa under s 36(2) of the Migration Act.
The Tribunal’s reasons are lengthy. The application concerns specific aspects of those reasons. The applicants describe the bulk of the Tribunal’s reasons in general terms. The applicants emphasise those aspects of the Tribunal’s reasons which are said to be critical to the application.
The Tribunal rejected the applicant father’s claims of harm as an ethnic Chinese,[5] as an opponent of the Malaysian government,[6] due to his long presence in Australia and consequent employment prospects in Malaysia[7] and as a person who is not rich.[8] The Tribunal also found that the applicant father did not face harm as a Buddhist and his claims should not cumulatively alter its analysis.[9]
[5] CB 307-308
[6] CB 308-309
[7] CB 309
[8] CB 309-310
[9] CB 310
The applicants do not challenge these conclusions by the Tribunal.
The Tribunal also rejected claims of harm specific to the applicant. The Tribunal found that the applicant, as an illegitimate child, would not face ill treatment reaching the threshold of serious or significant harm.[10] The Tribunal found that the applicant would be able to access education and health care in Malaysia.[11] The Tribunal did not accept that the applicant would be removed from her parents and placed in state care.[12] The Tribunal did not consider difficulties of re-adjustment faced by the applicant to constitute relevant harm.[13]
[10] CB 310-311 [128]
[11] CB 311 [129]-[130]
[12] CB 311 [131]
[13] CB 312 [132]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 2 December 2019. There are three grounds in that application, but only Grounds 1 and 2 relating to the applicant were pressed. Those grounds are:
1.The Second Respondent failed to conduct the review as required by ss 414 and 415 of the Migration Act 1958.
Particulars:
(A)The Second Respondent failed to conduct the review as required by ss 414 and 415 of the Migration Act 1958.
(i)The Second [Applicant] was found by the Administrative Appeals Tribunal ('the Tribunal') to be stateless. The Tribunal found, however, that the Second Applicant will be permitted to enter Malaysia as a permanent resident and does have a right to apply for Malaysian citizenship, on the basis of her mother's citizenship. The Tribunal failed to conduct the review required by the Act because:
(a)it relied on a document, being 'Citizenship laws, including methods by which a person may obtain citizenship; whether dual citizenship is recognised and if so, how is it acquired; process for renouncing citizenship and related documentation; grounds for revoking citizenship", Canada: Immigration and Refugee Board of Canada (IRB), 16 November 2007, CX26841 0' ('the Canadian document') to find that the Second Applicant will be permitted to enter Malaysia as a permanent resident, when that document merely referred to a 2001 document, being Citizenship Laws of the World, IS-1, March 2001, United States Office of Personnel Management, Investigations Service ('the American document'), which in turn states:
(ai)A child born out of wedlock, outside of Malaysia, to a Malaysian mother, is not considered a citizen of Malaysia. The child may return to Malaysia with the mother with a permanent residency status and may apply for citizenship later.
(aii) We have made this document as accurate and up-to-date as our resources have allowed. The information contained in this directory should not be considered formal legal advice. It is intended to serve as a quick reference document, summarizing the citizenship laws of foreign nations and providing contact information. You should direct detailed or specific questions to a nation's specific diplomatic representatives.
Readers should understand that citizenship laws are often amended to keep in step with political changes. A considerable time lapse between the enactment of new laws and their actual implementation is not uncommon. Moreover, it is not unusual to encounter differences between a nation's laws and its actual practices.
(ii)The Canadian document relied on the American document. The American document did not state that a person such as the Second Applicant would be a permanent resident of Malaysia merely because of her birth to a Malaysian mother out of wedlock. Furthermore, the American document was prepared in November 2001. It states that it should not be considered as formal legal advice and was intended to serve as a quick reference document, and that specific questions should be directed to a nation's specific representatives.
(iii)The Tribunal relied on the Canadian document, which relied on the American document from 2001 (and which it materially misquoted), which had no information as to how a person such as the Second Applicant could obtain, if at all, Malaysian permanent resident status, and which provided the caution set out at subparagraph (A)(i)(aii) above. In the circumstances, its reliance on the Canadian document that the Second Applicant will be permitted to enter Malaysia as a permanent resident and does have a right to apply for Malaysian citizenship, was legally unreasonable and or made in the absence of probative evidence.
(B)The Second Respondent failed to conduct the review as required by ss 414 and 415 of the Migration Act 1958.
(i)The Second Applicant provided a letter in support of her application from the Director, National Registration, Malaysia, dated 28 March 2013. That letter stated that the Second Applicant 'has no lawful claim as a Malaysian citizen'. The Tribunal failed to conduct the review required by the Act because it either did not have proper regard to that letter or did not have regard to it at all, when it found that the Second Applicant will be permitted to enter Malaysia as a permanent resident and have a right to apply for Malaysian citizenship.
2. The Second Respondent failed to make a relevant enquiry.
Particulars:
(A)The Second Respondent failed to make a relevant enquiry, thereby committing jurisdictional error.
(i)The Second Respondent failed to enquire how the Second Applicant, given her circumstances, would be able to obtain Malaysian permanent residence status. That was material as to whether Australia owed protection obligations to the Second Applicant. Its failure to do so constitutes jurisdictional error.
(B) The Second Respondent failed to make a relevant enquiry, thereby committing jurisdictional error.
(i) The Second Respondent filed to enquire how the Second Applicant could return to and enter Malaysia as a permanent resident, in circumstances where the Malaysian authorities refused to register her birth. That was material as to whether Australia owed protection obligations to the Second Applicant. Its failure to do so constitutes jurisdictional error.
The application is supported by an affidavit by Ma Rosario Xiella Devine made on 2 December 2019 (Devine Affidavit) which I received. Annexed to that affidavit are a copy of the decision of the Tribunal and country information referred to by the Tribunal.
Procedural orders in this matter were made by Judge Manousaridis on 14 January 2020. Relevantly, by order 1 made on that day, the applicant father was appointed litigation guardian of the applicant.
I also have before me as evidence the court book filed on 28 February 2020.
As already noted, this case was heard consecutively with proceedings SYG 1661 of 2019 (CQH19) and SYG 1638 of 2019 (CPL19). It is common ground that if the applicant fails in this case, the asserted errors in failing to adjourn those proceedings would cease to be material and hence those cases to that extent would also fail.
CONSIDERATION
Applicants’ contentions
The application may broadly be described as follows. It contains three grounds of judicial review. The first is a failure by the Tribunal to perform its function of review (Ground 1). The second is a failure to make a relevant inquiry (Ground 2).
Ground 1 is particularised so that it comprises two sources of complaint. The first may be described as “Ground 1(a)”. It attacks the Tribunal’s finding that the applicant was entitled to enter Malaysia as a permanent resident and had a right to apply for Malaysian citizenship. The essence of the attack is legal unreasonableness, on the basis that the country information relied on by the Tribunal does not support the finding made.
The second source of complaint may be described as “Ground 1(b)”. It argues that the Tribunal did not consider, or did not properly consider, evidence provided by the applicant from the Malaysian government which suggested that she had no lawful claim to become a Malaysian citizen. The evidence is a letter from the Malaysian authorities appearing at CB 75.
Ground 2 is also concerned with the Tribunal’s finding that the applicant was entitled to enter Malaysia as a permanent resident. However, the focus of Ground 2 is a failure by the Tribunal to enquire into how the applicant in her circumstances would obtain permanent residency in Malaysia. In particular, at what might be described as “Ground 2(b)”, there is identified the circumstance that the Malaysian authorities refused to register the birth of the applicant.
The applicants describe the three legal questions relevant to Grounds 1 and 2. Those are: legal unreasonableness in a finding of fact, legal unreasonableness by failure to inquire and want of consideration or proper consideration of evidence.
Legal unreasonableness in a finding of fact
Legal unreasonableness in relation to findings of fact was recently examined by the Full Federal Court in BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[14] Allsop CJ, Collier and Colvin JJ stated the following at [29]:
There is no doubt that just because the alleged errors were factual enquiries does not mean they are precluded from constituting jurisdictional error: CRU18 v Minister for Home Affairs [2020] FCAFC 129 at [29]–[31]. However, an erroneous finding of fact will typically not amount, in and of itself, to jurisdictional error: CRU18 at [29] citing NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9] (Heerey, Nicholson and Selway JJ). A finding of fact involving an error might constitute jurisdictional error if, for example, it is shown to be irrational, or unreasonable, or lacking in an intelligible justification (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 647–648 [130] (Crennan and Bell JJ)). Further, in order to establish jurisdictional error, the factual error must be material in the sense that there is a realistic basis to consider that the decision maker’s ultimate conclusion might have been different if the alleged error had not been made: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134–135 [29]–[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 433 [2]–[4] and 445–446 [45]–[50] (Bell, Gageler and Keane JJ); CRU18 at [37]. Where the impugned finding is but one of a number of findings that independently may have led to the IAA’s ultimate conclusion, jurisdictional error will generally not be made out: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [35(6)] citing Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [55]; CRU18 at [35]–[37].
[14] [2020] FCAFC 151
The effect of BHD18 for present purposes may be summarised as permitting a challenge to a finding of fact by the Tribunal where there is no intelligible justification for the finding and the fact which is the subject of the finding is material.
Legal unreasonableness by failure to inquire
The discretion of a decision-maker to get new information, and the circumstances in which there may be a judicially reviewable failure to exercise the discretion in favour of doing so, were considered by the High Court in ABT17 v Minister for Immigration and Border Protection.[15]
[15] [2020] HCA 34
Describing ABT17 in specific terms, Nettle held at [69]-[70] that:
(a)where an applicant has given oral evidence to the delegate by interview on a particular matter; and
(b)the truth of that evidence has been accepted by the delegate in light of the applicant’s demeanour; and
(c)the delegate’s finding is not “glaringly improbable, contrary to compelling inferences or otherwise shown to be infected by error”; then
(d)it is legally unreasonable for the Immigration Assessment Authority (Authority) to reject the truth of the applicant’s evidence without exercising the discretion to interview the applicant under s 473DC of the Migration Act.
However, there is said to be a broader notion behind ABT17. Their Honours, Kiefel CJ, Gageler and Keane JJ had, earlier in their reasons, observed at [19]-[20]:
…the implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made" such that "[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.
Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an "intelligible justification" but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.
The applicants submit that in these paragraphs, their Honours appear to have superseded an earlier formulation of a judicially reviewable failure to inquire as arising where there was “an obvious inquiry about a critical fact, the existence of which is easily ascertained”.[16] Their Honours referred to “intelligible justification” as the criterion for a legally unreasonable failure to get information. They also cited authority using essentially the same language.[17] Lastly, their Honours only referred to SZIAI with the abbreviation “cf”, meaning to compare.
[16] Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25]
[17] ie Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290, citing Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170
In all the circumstances, ABT17 is relied upon by the applicants for the wider principle that a decision of the Authority may be judicially reviewed where the Authority has failed to exercise its discretion to get new information under s 473DC of the Migration Act where there was no intelligible justification for omitting to do so.[18] Further, the applicants submit that there is no reason why ABT17 should not be applied in relation to the Tribunal and its power to get new information under s 359 of the Migration Act.
[18] see eg CJE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1620 at [78] per Beach J
Consideration of evidence
Proper, genuine and realistic consideration (proper consideration) requires active intellectual engagement with the applicants’ case.[19] There is no reason to doubt that materiality also applies to proper consideration as a species of jurisdictional error.
[19] see, by way of a recent example, GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30], [32] and [39] per Flick, Griffiths and Moshinsky JJ and authority cited there
Aside from proper consideration, there is another jurisdictional error of failure to consider evidence. The authorities were summarised by Judge Jarrett in BOO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[20]at [44]:
The failure to consider material in a manner which affects the exercise of power amounts to jurisdictional error: MIMA v Yusuf (2001) 206 CLR 323 at [82]-[84]. However, the test for determining whether jurisdictional error has occurred by reason of a failure to consider evidence is different to the test for determining whether jurisdictional error has occurred by reason of a failure to consider claims made by the applicant: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [112]; Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]. In the case of corroborative material, whether a failure to consider that material rises to the level of jurisdictional error will depend on the cogency of the material and its place in the assessment of the applicant’s claims: SZRKT at [112].
[20] [2020] FCCA 3461
The reach of the principle of materiality appears such that any failure to consider evidence is a jurisdictional error where it could have affected the ultimate result.
Errors in the present case
The applicants address each of the above errors in turn.
Legally unreasonable finding of fact
The applicants submit that there was no intelligible justification for the Tribunal’s conclusion that the applicant could enter Malaysia as a permanent resident and gain citizenship there. The applicants have filed affidavit evidence for this purpose.[21]
[21] see Devine Affidavit
It is said to be immediately apparent that the Canadian information as to the citizenship law of Malaysia relied upon by the Tribunal at [50][22] simply refers to United States country information dating to 2001.[23] The United States document either was, or should have been, before the Tribunal.
[22] CB 297
[23] see Devine Affidavit, Annexure B, page 30
The United States document simply asserts that a child born out of wedlock, and outside of Malaysia, to a Malaysian mother “may return to Malaysia with the mother with a permanent residency status and may apply for citizenship later”.[24] Further, the United States document is heavily qualified in its introduction, stating:[25]
We have made this document as accurate and up-to-date as our resources have allowed. The information contained in this directory should not be considered formal legal advice. It is intended to serve as a quick reference document, summarizing the citizenship laws of foreign nations and providing contact information. You should direct detailed or specific questions to a nation’s specific diplomatic representatives.
Readers should understand that citizenship laws are often amended to keep in step with political changes. A considerable time lapse between the enactment of new laws and their actual implementation is not uncommon. Moreover, it is not unusual to encounter differences between a nation’s laws and its actual practices.
[24] Devine affidavit, Annexure C, page 37
[25] Devine affidavit, Annexure C, page 36
The applicants concede that the Tribunal is not necessarily obliged to have the most recent country information before it.[26] However, a failure to do so, especially where it is without explanation, could support a submission that the finding on which older country information is based is without relevant justification.[27]
[26] CHP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1818 at [47]-[56] per Murphy J
[27] compare ibid at [52]
In the present case, the Canadian information was published almost 15 years ago. It merely referred to another document which was 20 years old, without additional reasoning or information. The Tribunal may have had the other document before it. If not, the Tribunal could have obtained the other document and it would have become apparent that the latter merely asserted a state of affairs under Malaysian citizenship law, without detailing the basis for it. In addition, the document disclaimed reliance on its contents and emphasised that they could become outdated or fail to reflect actual practices.
The failure is said to have been material. The Tribunal’s assessment of difficulties faced by the applicant was predicated on her being a permanent resident who could later apply for citizenship. In other words, the Tribunal is said to have gauged the applicant’s situation by reference to her being a lawful non-citizen in Malaysia, rather than an unlawful non-citizen. There is no indication that its conclusions extended to the latter and both logic and instinct would suggest they might not.
Even if the Tribunal had not concluded that the applicant would be an unlawful non-citizen, it could still have been left in state of doubt as to whether the applicant would be a lawful non‑citizen. As such, the Tribunal could have applied the “what if I am wrong” test.[28]
[28] Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719
The applicants submit that, in other words, for the purposes of materiality, they need only establish that there was no relevant justification for the finding that the applicant would be a lawful non-citizen in Malaysia, with at least consequent consideration of the possibility that the applicant would be an unlawful non-citizen. The applicant submits that she need not positively establish that she would have been an unlawful non-citizen in Malaysia.
Legally unreasonable failure to get information
As indicated, the applicants submit that, to the extent that the Tribunal did not have the United States document before it, it should have obtained the document before relying on the Canadian country information. There is said to have been no intelligible justification for failing to obtain the document where the Canadian country information was wholly reliant upon it and provided no further evidence or reasoning of its own with respect to the applicant’s circumstances.
The failure is said to have been material because the United States document had the weaknesses already described. In other words, the applicants would have no complaint if the United States document was not before the Tribunal but, upon examination by this Court, disclosed an ample basis for the conclusion that the applicant would become a permanent resident in Malaysia and eligible for citizenship there.
However, the applicants submit that the United States document does not do so. The applicants’ complaint that there was no intelligible justification for the finding as to the applicant is said to be buttressed by the contents of the United States document. They submit that the Tribunal, if it did not do so, should have obtained the document and refrained from concluding, or concluding with certainty, that the applicant would be a lawful non-citizen in Malaysia.
In any event, the Tribunal had another avenue of inquiry open to it. It could have contacted the Malaysian authorities regarding the applicant’s eligibility for permanent residency and citizenship in Malaysia. It had ample information as to authorities in Malaysia which were aware of the applicant’s case.[29]
[29] CB 73-75, 234
Further, information from those authorities already before the Tribunal did not confirm the applicant’s eligibility. Indeed, they cast some doubt on it.[30] The Tribunal could have exercised s 359 of the Migration Act to seek clarification from the Malaysian authorities. The applicants submit that the answer of the Malaysian authorities as to whether the applicant would be a lawful or unlawful non-citizen in Malaysia would have been material to the Tribunal’s deliberations for the reasons already given.
[30] see, in particular, CB 75
Consideration of evidence
The applicants rely for this purpose on the letter dated 28 March 2013 from the Malaysian authorities at CB 75. It relevantly states that the applicant “has no lawful claim as a Malaysian citizen”. There is no suggestion that, as the United States document asserts, the applicant could become a permanent resident in Malaysia and later apply for Malaysian citizenship.
The Tribunal has considered other correspondence from the Malaysian authorities.[31] However, it has not explicitly referred to or grappled with the significance of the 2013 letter. In these circumstances, there is said to have been a want of consideration or a want of proper consideration of the evidence. The significance of the status of the applicant in Malaysia for the purposes of the principle of materiality has already been described.
Minister’s contentions
[31] CB 296 [44], 297 [52]
First ground
The first ground concerns a challenge to the Tribunal’s findings in relation to the harm feared by the applicant, in particular in connection with her claim to be stateless. It is noted that the applicant did not actually claim (expressly, in any event) that she feared harm in returning to Malaysia as a stateless person. Her claims concerned returning to Malaysia as a child of “unverified status” which was a reference to the fact that her father had married a woman in Australia whilst he was still married to a Malaysian woman in Malaysia. The Tribunal also considered a claim advanced that the applicant would be separated from her parents, but found that claim to be “unsubstantiated and far-fetched” at [131]. In this context, it is said to be unclear how the impugned findings of the Tribunal at [133] relate to a protection claim the Tribunal was required to consider.
In any event, the Minister submits that, on the assumption that [133] was critical to a protection claim the Tribunal was required to consider, which it appeared at [133] to identify as a risk of harm relating to “administrative difficulties” in obtaining citizenship, no error is made out. The applicants contend that the Tribunal’s conclusion that the applicant could enter Malaysia as a permanent resident and gain citizenship in that country had no intelligible justification. The Tribunal concluded that notwithstanding difficulties the second applicant had faced in obtaining citizenship in Australia, because of her father’s bigamy, the applicant could re-enter Malaysia as a permanent resident on the basis of her mother’s Malaysian citizenship, and that she (the applicant) was eligible to apply for Malaysian citizenship.
The Minister contends that the applicants’ challenge in this ground cannot be accepted, as ultimately it amounts to no more than a disagreement with the Tribunal’s consideration of country information. It is well-established that the selection of, and weight to be given to, country information is a matter for the Tribunal within its jurisdiction.[32] As the Full Federal Court stated in NAHI at [11]:
The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well‑founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
(Minister’s emphasis retained)
[32] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
First, the Minister submits that the applicants cannot avoid the effect of the Full Federal Court’s judgment in NAHI, at least in this case, by suggesting that notwithstanding the Tribunal’s general authority to select and weigh country information, that information was not probative of the conclusions reached by the Tribunal. A similar argument was rejected by Murphy J in BWX15 v Minister for Immigration and Border Protection[33] at [29]-[38]. In affirming on appeal this Court’s rejection of an argument that the Tribunal had no logically probative evidence for rejecting his claim to have a well-founded fear of persecution if he were returned to Sri Lanka, his Honour cited NAHI and referred to the High Court’s judgment in Minister for Immigration and Citizenship v SZMDS.[34]
[33] [2018] FCA 64
[34] (2010) 240 CLR 611
Secondly, the Minister submits that it cannot in any event be said that there was an absence of probative evidence for the Tribunal’s findings concerned the applicant’s status in Malaysia, as a person born overseas and out of wedlock. The Tribunal referred to a number of sources, not just the document referred to in footnote 8 of the decision, in connection with the question of the applicant’s status and the steps that would be available to her to apply for Malaysian citizenship.[35] For instance, the Tribunal referred to the Malaysian Constitution, a report dated February 2017 from the Global Citizenship Observatory, an article from the Malaysian Digest dated 13 April 2017, information from the website of the National Registration Department of the Malaysian Ministry of Home Affairs, as well as information from the Consulate General of Australia and a legal opinion of a Malaysian family law practitioner. It does not expose jurisdictional error in the Tribunal’s findings that the applicant would be able to enter Malaysia as a permanent resident and may apply for Malaysian citizenship, for the applicants to question one item of country information and the manner in which the Tribunal has construed that information.
[35] See CB 296-298 [44]-[57]
Thirdly, the Minister submits that it is not entirely clear that the report referred to at footnote 8 (described as the “Canadian document” in the application) did not convey the information referred to by the Tribunal at [50]. The applicants assert that the Canadian document “materially misquoted” from a United States source, however the fact that a source of information is dated, or subject to a caveat that it is intended to serve as a “quick reference” document, does not mean that the information is wrong, or misleading. The applicants have not articulated in what way they say the information relied on by the Tribunal was wrong or misleading. Is it suggested that the available information before the Tribunal all, or predominantly, pointed to a different conclusion, perhaps that the applicant would be unable to re-enter Malaysia at all, or might be able to re-enter, but would be unable to apply successfully for Malaysian citizenship? It is unclear. In any event, as submitted above, these are said to have been matters for the Tribunal to determine within its jurisdiction and, to the extent that reasonable minds might draw different conclusions on the material, does not point to jurisdictional error.[36]
[36] SZMDS at [131]
In relation to the applicants’ contention that the Tribunal failed to have proper regard to the letter dated 28 March 2013, the Minister submits that the argument cannot be accepted. Whilst it does not appear that the Tribunal referred expressly to the letter, to the extent that all the letter asserted was that the applicant had no lawful claim as a Malaysian citizen, the Tribunal accepted that on the basis of other information in its possession, and to which it referred. The letter is not a piece of evidence of sufficient importance to have warranted express consideration.[37] The Minister contends that neither would an error in failing to consider the letter, if there were such an error, have been material to the outcome.[38]
[37] cf Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
[38] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Second ground
In the second ground the applicants assert that the Tribunal was required to make an enquiry about how the applicant would be able to obtain Malaysian permanent resident status. It is well-established that the Tribunal has a duty to review, not to inquire.[39] The High Court has determined that, except perhaps in the most exceptional cases, a failure by the Tribunal to inquire will not result in an error going to the Tribunal’s jurisdiction, including for reason of legal unreasonableness.[40]
[39] Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60] (Kenny J) and the authorities cited there
[40] SZIAI at [25]
The issue of the citizenship status of the applicant, and the difficulties she asserted she faced in obtaining citizenship in Malaysia, were matters the applicants can be taken to have been aware were critical issues for determination by the Tribunal. The Minister submits that it was a matter for the applicants to adduce the necessary claims and evidence in order to persuade the Tribunal. It was not for the Tribunal to make out the applicant’s case for her.
The applicants submit that the High Court in ABT17 “appear to have superseded” the foundation for the Court’s judgment in SZIAI. Further, they submit that ABT17 could be relied upon for the “wider principle” concerning the interpretation of s 473DC of the Migration Act to be applied to the interpretation of s 359.
The Minister contends that there are problems with this submission.
Fundamentally, the Court is not assisted in construing one provision of the Migration Act (for instance, s 359) by reference to what the High Court has said about a different provision (such as s 473DC) that appears in a different Part of the Migration Act and serves a different function and purpose.
Further, ABT17 was a case concerned singularly with the statutory powers of the Authority, and cannot be transposed into an analysis of the existence or extent of the Tribunal’s so-called “duty to inquire” which does not involve the exercise of statutory power. The applicants’ submission that the High Court (comprising five justices) did, or sought to, overrule what the full bench of the Court had said in SZIAI (or the foundation of what was said in that case) cannot be accepted. Notwithstanding the fact that ABT17 was not a case concerning any duty on the Authority to make enquiries, had the High Court sought to overrule an earlier judgment of the Court, it would have done so with more than a footnote reference.
Resolution
Statutory provisions
There is no controversy of statutory interpretation for the Court to quell in the present case and in that regard I accept the applicants’ submissions. The Migration Regulations 1994 (Cth) (Regulations) may prescribe criteria for the visa under s 65(1)(a)(ii) when read with s 504 of the Migration Act. The Minister must be satisfied that the criteria are met, as must the Tribunal on review (see s 65(1) when read with ss 414 and 415 of the Migration Act). In the present case, the criteria for the visa have been prescribed by clause 866 in Schedule 2 to the Regulations.
Clause 866.221 was the critical provision in the present case. At the time relevant to the present case, clause 866.221(2) provided that the delegate or the Tribunal be “satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant”. Clause 866.221(3) provided that, in the alternative, that the applicant be a member of the same family unit as the person mentioned in clause 866.221(2).
Further, at the time relevant to the present case, s 36(2)(a) of the Migration Act provided that a criterion for the visa is that the Minister is satisfied that the applicant for the visa is a non‑citizen in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention. Section 36(2)(aa) of the Migration Act identifies protection obligations of a different kind, namely that the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia, there is a real risk that the non-citizen will suffer significant harm.
While it was not a specific issue, the present case required s 36(2)(a) of the Migration Act to be read with provisions such as s 91R of the Migration Act. This is because the applicants’ application for the protection visa preceded the enactment and did not attract the application of provisions such as s 5J of the Migration Act.[41]
[41] see s 2 when read with Part 2 of, and item 28 in, Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
It is settled that the Tribunal’s state of satisfaction with respect to the above provisions is judicially reviewable in the event that it makes a jurisdictional error.[42] The Court has jurisdiction to perform judicial review in the present case.[43]
[42] see, by parity of reasoning, Mouflih v Minister for Home Affairs [2019] FCA 1744 at [28] per Rangiah J and authority cited there
[43] see s 476(1) of the Migration Act
Decision of the Tribunal
As noted above, the Tribunal’s reasons are lengthy. The application concerns specific aspects of those reasons. The applicants describe the Tribunal’s reasons in general terms. The applicants emphasise those aspects of the Tribunal’s reasons which are said to be critical to the application.
Also, as noted at the outset, the applicant father is the father of the applicant. The Tribunal rejected the applicant father’s claims of harm as an ethnic Chinese,[44] as an opponent of the Malaysian government,[45] due to his long presence in Australia and consequent employment prospects in Malaysia[46] and as a person who is not rich.[47] The Tribunal also found that the applicant father did not face harm as a Buddhist and his claims should not cumulatively alter its analysis.[48]
[44] CB 307-308
[45] CB 308-309
[46] CB 309
[47] CB 309-310
[48] CB 310
The applicants do not challenge these conclusions by the Tribunal.
The Tribunal also rejected claims of harm specific to the applicant. The Tribunal found at [128] that the applicant, as an illegitimate child, would not face ill treatment reaching the threshold of serious or significant harm. The Tribunal found at [129]-[130] that the applicant would be able to access education and health care in Malaysia. The Tribunal did not accept at [131] that the applicant would be removed from her parents and placed in state care. The Tribunal did not consider at [132] difficulties of re-adjustment faced by the applicant to constitute relevant harm.
The focus of the applicants’ challenge is the conclusion by the Tribunal at [133]:[49]
As referred to earlier in this decision record, the Tribunal accepts that there have been difficulties obtaining Malaysian citizenship for the applicant’s daughter in Australia, because of the applicant’s bigamy and accordingly his inability to register his marriage with his second wife with the relevant Malaysian authority. However, the Tribunal has found that, on the basis of her mother’s Malaysian citizenship, the applicant’s daughter may enter Malaysia as a permanent resident and also that she is eligible to apply for Malaysian citizenship. The Tribunal considers that any administrative difficulties arising in this respect when in Malaysia would not rise to the level of persecution for the essential and significant reason of her arrival in Malaysia. Nor does the Tribunal accept that there is a real risk of significant harm on this basis.
[49] CB 312
Clearly, therefore, the Tribunal’s conclusion that the applicant could enter Malaysia as a permanent resident and become a citizen was relevant to its conclusion as to the absence of harm.
In these circumstances, it is important to describe the basis for the Tribunal’s conclusion at [133] that the applicant “may enter Malaysia as a permanent resident and also that she is eligible to apply for Malaysian citizenship”.
That basis may shortly be described as follows:
(a)“the Immigration and Refugee Board of Canada has stated: ‘Children born out of wedlock abroad to a Malaysian mother are not considered citizens but may enter Malaysia with permanent resident status with the mother and may apply for citizenship’”;[50] and
(b)“... the country information before the Tribunal indicates that children born out of wedlock abroad to a Malaysian mother may enter Malaysia with permanent resident status with the mother and may apply for Malaysian citizenship. ... the Tribunal finds that the applicant’s daughter will be permitted to enter Malaysia as a permanent resident and does have a right to apply for Malaysian citizenship on the basis of her mother’s citizenship”.[51]
[50] CB 297 [50]
[51] CB 298-299 [59]
The applicants submit that the Tribunal ought to have obtained for itself the “United States document”, which was a document referred to in one of the country information reports the Tribunal did rely upon. This argument is not raised in these terms in the grounds of review. Rather the duty to inquire is put more generally. In any event, I accept the Minister’s submission that the argument is misguided concerning the limitations of any duty on the Tribunal to inquire or to obtain documents.
The conclusions reached by the Tribunal concerning the applicant’s nationality (stateless) and residency (Malaysian) were open to it on the basis of the country information before it. It is true that that information is relatively dated and general in nature but it was specific enough for the Tribunal to be able to conclude that the applicant could travel with her family to Malaysia, enter that country, and eventually, apply for Malaysian citizenship. The fact that the applicant’s family had encountered difficulties in registering her birth with the Malaysian authorities, and that they had had correspondence from the Malaysian authorities to the effect that the applicant did not have, at that time, any rights as a citizen of Malaysia, does not alter that position.
I do not accept that there was any enquiry that the Tribunal failed to make which was obvious, which could have been readily made, and which may have been determinative. I agree with the Minister that any obligation on the Tribunal to enquire is to be considered by reference to the decision of the High Court in SZIAI, rather than the more recent decision of the High Court relating to the Authority in ABT17. In the latter decision, the High Court was dealing with a significantly different statutory regime, through the lens of legal unreasonableness.
It follows that I reject the legal contentions in the grounds of review advanced. The application is otherwise, in my view, an invitation to impermissible merits review.
An additional matter
At the conclusion of oral argument at the trial on 17 March 2021 I was told that the applicant is now 10 years of age and eligible to apply for Australian citizenship. That is a matter I regard as beyond the scope of this proceeding, although I note that the country information relied upon by the Tribunal and the applicants states that Malaysia does not recognise dual citizenship. It follows that if the applicant does acquire Australian citizenship she would presumably be ineligible for Malaysian citizenship.
CONCLUSION
The applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and accordingly, the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 6 May 2021
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