Ewu17 v Minister for Immigration
[2020] FCCA 2261
•14 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EWU17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2261 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Vietnam – whether the Tribunal constructively failed to exercise its jurisdiction or failed properly to assess the applicant’s claims or was biased considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.441A, 425, 425A, 426A |
| Cases cited: Kaur v Minister for Immigration (2014) 236 FCR 393 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Minister for Immigration v SZFML (2006) 154 FCR 572 |
| Applicant: | EWU17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3402 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms Xiao of Clayton Utz |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 7 November 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as applicable at the date the application was filed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3402 of 2017
| EWU17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 11 October 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 7 August 2020 which I adopt.
Background and summary of claims
The applicant is a Vietnamese national who arrived in Australia with a dependent student visa on 25 August 2010.[1] On 24 August 2015, the applicant lodged an application for a Protection (subclass 866) visa (protection visa) on the basis that she feared harm from loan sharks in Vietnam.
[1] Court Book (CB) 39 [1]
In particular, the applicant claimed that, if repatriated, her life would be in danger because she was unable to repay the significant amount of money she had borrowed to fund her gambling addiction and that she had already received death threats from anonymous callers in respect of those debts.[2]
[2] CB 36-37
Procedural history
The applicant's protection visa application was refused by the delegate on 10 November 2015.[3] On 7 December 2015, the applicant lodged with the Tribunal an application for review of the delegate's decision in support of which she attached only the notification of refusal.[4]
[3] CB 135-145
[4] CB 146-147
On 18 July 2017, the Tribunal informed the applicant that it was unable to make a favourable decision based on the material available to it and invited the applicant to give evidence and present arguments at a hearing scheduled for 3 August 2017.[5] At that hearing, the applicant attended but indicated that she was unable to give oral evidence as she had lost her voice. The hearing was thus adjourned.[6]
[5] CB 160-161
[6] CB 176 [6]
On 4 August 2017, the Tribunal again invited the applicant to appear before it at a hearing which was to resume on 11 October 2017.[7] The applicant did not appear at the rescheduled hearing.
[7] CB 171-172
Decision of the Tribunal
In its decision record dated 11 October 2017, the Tribunal noted that it had reviewed the case file and was satisfied that the applicant was properly invited to the second hearing in accordance with s.441A(5) of the Migration Act 1958 (Cth) (Migration Act) and had been notified that the Tribunal may make a decision on the review without further notice if she failed to attend.[8] It also noted that the invitation had not been returned to sender and that two separate SMS reminders were sent to the applicant before the hearing.[9]
[8] CB 176 [7]-[8]
[9] CB 176 [8]
Against that background, the Tribunal proceeded to make its decision on the review under s.426A of the Migration Act without taking any further action to enable the applicant to appear before it.[10]
[10] CB 176 [9]
Having outlined the applicant's claims as set out in her protection visa application, the Tribunal identified various concerns and issues in respect of which further information and evidence from the applicant was required to enable it to test her claims in more detail.[11] The Tribunal's inability to do so led to the conclusion that it could not be satisfied on the evidence before it that the applicant was a person to whom Australia owed protection obligations on refugee convention or complementary protection grounds and it therefore affirmed the decision under review.[12]
[11] CB 178 [18]-[20]
[12] CB 178 [21]-[23]
The current proceedings
These proceedings began with a show-cause application filed on 7 November 2017. The applicant continues to rely upon that application. There are six grounds in it:
1. The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal, the Migration & Refugee Division (The Tribunal) where the Tribunal affirmed a decision of a Delegate not to grant the applicant a protection visa to the Applicant.
2. The Tribunal constructively failed to exercise his jurisdiction.
i. The Tribunal failed to consider the materials before it, namely the information and materials from delegate of the Minister for Immigration, and,
ii. The Applicant wished to provide information and documents to the Tribunal to corroborate his claims.
iii. The Tribunal failed to take reasonable steps for the Applicant to give further information and documentation to clarify the claim of the Applicant better.
iv. The Tribunal made decision based on the documents given from the delegate of the Minister of the Minister for Immigration.
v. The Tribunal failed to take into consideration all the information and material and therefore, failed to exercise his jurisdiction.
3. The Applicant satisfies the key elements for a Protection Visa and the Tribunal has not considered this aspect and therefore made factual and legal errors.
4. Details of the Applicant’s claims are known to the Tribunal and the claims satisfy the key elements for a Protection Visa.
5. The Tribunal has failed to investigate the applicant’s claim.
PARTICULAR
a. The Tribunal made the Decision without giving the Applicant’s opportunities to appear before the Tribunal which leaves the impression that the Tribunal did not consider the First Applicant’s matter in great details and therefore did not investigate the Applicant’s claim.
6. Therefore the Tribunal’s decision on 11 October 2017 was affected by actual bias constituting judicial error.
(errors in original)
The application was accompanied by an affidavit filed with it, which I received as a submission. In that affidavit, the applicant repeats her claims for protection, and refers to the procedural history of the matter.
This matter was originally docketed to Judge Barnes, but at a call over on 14 March 2019 she transferred the matter to me. I have before me as evidence the court book lodged on 10 January 2018. The applicant, who attended court today in person with the assistance of a Vietnamese interpreter, had apparently received the court book but did not have it with her. I provided her with the original court book from the court file.
The applicant also claimed not to have received the Minister’s written submissions. I adjourned temporarily while the submissions were read to her by the interpreter. I also provided the applicant with a copy of the Minister’s submissions.
I then invited oral submissions from the applicant. She initially had nothing to say. She then said that she agreed with the Tribunal decision. When I told her that it appeared that there was nothing in dispute between the parties, she said that she had been misled about the date of the resumed Tribunal hearing.
I took her to the resumed hearing invitation reproduced at court book 171. That identifies the resumed hearing date to be 11 October 2017. The Tribunal refers to the same date at [7] of its reasons.[13] The applicant had nothing further to say on that issue. I invited submissions in reply from the applicant, but she declined to make any.
[13] CB 176
The applicant has not raised any issue orally that suggests any jurisdictional error by the Tribunal. Neither is any asserted error apparent from the applicant’s affidavit accompanying her application. The Minister’s submissions deal adequately with the grounds of review in the application. I agree with those submissions and adopt them.
Grounds of review
The first of the six grounds is merely a statement of factual background and warrants no response. There is some overlap in the remaining grounds of review, which broadly advance three assertions of error. In essence, the applicant contends that:
a)the Tribunal constructively failed to exercise its jurisdiction by failing to consider all of the material before it or by failing to take "reasonable steps" for the applicant to provide further information and documentation in support of her claims (Ground 2);
b)the Tribunal failed to consider that the applicant "satisfies the key elements for a Protection Visa" based on details of her claims that were known to the Tribunal (Grounds 3 and 4); and
c)the Tribunal "failed to investigate the applicant's claims" and its decision was "affected by actual bias" by not giving the applicant opportunities to appear before it (Grounds 5 and 6).
Consideration
Ground 2
This ground relies on five particulars in support of the contention that the Tribunal constructively failed to exercise its jurisdiction. Those particulars may be summarised as follows:
a)Particulars (i) and (v) both in substance assert that the Tribunal failed to consider all of "the information and materials from the delegate" that were before it; and
b)Particulars (ii) to (iv) share a common premise in further asserting that the applicant was denied the opportunity "to give further information and documentation" to the Tribunal to clarify or corroborate her claims.
(a) Failure to consider
Here is a bare assertion that invites no meaningful response. The applicant has not identified precisely what information or material is said to have been ignored.[14] It is clear that the applicant was on notice that the Tribunal had considered all of the material before it but was unable to make a favourable decision on that information alone.[15] Particulars (i) and (v) cannot be sustained.
[14] Cf. Plaintiff M64/2015 v Minister for Immigration (2015) 258 CLR 173, [24]
[15] CB 160, 176 [5]
(b) Further evidence to the Tribunal
As to particulars (ii) to (iv), the real issue raised by the applicant's underlying complaint is whether the Tribunal acted unreasonably or otherwise fell into jurisdictional error in the circumstances by exercising its discretion under s.426A(1A)(a) of the Migration Act to make a decision on the review without enabling the applicant a further opportunity to appear before it.
First, it may be accepted that the Tribunal is entitled to consider the exercise of its powers under s.426A only once the preconditions in ss.425 and 425A of the Migration Act have been met.[16] Here, the Tribunal complied with its statutory obligations to invite the applicant to appear before it (under s.425) by issuing the invitations dated 18 July 2017 and 4 August 2017 (under s.425A).[17] Those invitations were transmitted to the applicant's email address in accordance with s.441A(5).[18] Section 426A was therefore enlivened in the circumstances, there being no appearance by the applicant before the Tribunal at the scheduled hearing on 11 October 2017.
[16] Minister for Immigration v SZVFW (2018) 264 CLR 541, [8]
[17] CB 160, 171, 176 [5]-[7]. See also Minister for Immigration v SZFML (2006) 154 FCR 572, 589 [79]
[18] CB 147, 159, 170, 176 [8].
Secondly, insofar as the applicant contends that the Tribunal's exercise of power under s.426A(1A)(a) was unreasonable (in that it ought to have exercised its discretion under s.426A(2) to reschedule the applicant's appearance for a second time), that contention is unsustainable. Legal unreasonableness attracts a high threshold which is rarely satisfied where the reasons demonstrate a justification for the exercise of the discretionary power in question.[19] That threshold plainly cannot be met in the present circumstances. Having properly invited the applicant to appear at the rescheduled hearing and having received no response to that invitation, the Tribunal sent two further SMS reminders to the applicant about the hearing despite being under no obligation to do so.[20] No notice of, or reason for, the applicant's failure to attend was provided to the Tribunal.[21] There is no want of justification for the manner in which the Tribunal exercised its discretion under s.426A of the Migration Act.
[19] Minister for Immigration v SZVFW (2018) 264 CLR 541, [79]-[84]
[20] CB 176 [7]-[8]. Cf. Kaur v Minister for Immigration (2014) 236 FCR 393.
[21] CB 178 [20]
Grounds 3 and 4
These grounds may readily be disposed of. It is clear from the Tribunal's reasons that it understood the criteria for a protection visa, which it outlined at [10]-[14] of its decision, and that it considered whether the applicant satisfied those "key elements" in light of the claims that she had made. Rather, as the Tribunal made clear at [19]-[20], it was the lack of corroborating evidence and the applicant's own failure to appear before the Tribunal that proved fatal to her claims.[22]
[22] See NAVX v Minister for Immigration [2004] FCAFC 287, [5]
Grounds 5 and 6
The contention that the Tribunal "failed to investigate" the applicant's claims misapprehends the nature of the Tribunal's jurisdiction under Part 7 of the Migration Act. The Tribunal is under no general duty to investigate: the duty imposed on it is a statutory duty to review.[23] In some cases, that duty may require the Tribunal to make an obvious inquiry about a critical and easily ascertainable fact.[24] This is not such a case. The applicant's complaint that she was not afforded multiple "opportunities to appear before the Tribunal" does not render it so, nor did any error otherwise arise in this way.
[23] Minister for Immigration v SZGUR (2011) 241 CLR 594, [20]
[24] Minister for Immigration v SZIAI (2009) 259 ALR 429, [25]-[26]
Insofar as it is contended that the decision under review was "therefore…affected by actual bias", the applicant must demonstrate that the Tribunal had a closed mind that was not open to persuasion or that it was unwilling to evaluate all the material fairly; such an allegation must be distinctly made and clearly proved.[25] The applicant's grounds do neither.
[25] Minister for Immigration v Jia Legeng (2001) 205 CLR 507, 546 [127]
Conclusion
I conclude that the applicant has not established that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision, and the application must be dismissed. I will so order.
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the court scale as it applied when the application was filed. The applicant considers the costs to be excessive but I see no reason to depart from the court scale.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as applicable at the date the application was filed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 August 2020
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