FFR17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1077
•23 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FFR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1077
File number(s): MLG 2607 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 23 November 2023 Catchwords: MIGRATION – protection visa – review of decision of the Administrative Appeals Tribunal – where self-represented litigant was permitted to amend grounds of review at final hearing but no error was established in relation to any of the grounds, whether as amended or as originally put – application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss.36(2)(a), 36(2)(aa), 474, 476, 499
Migration Regulations 1994 (Cth) sch.2
Cases cited: Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & [2022] FCAFC 41
Craig v South Australia (1995) 184 CLR 163, 175.
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 13 September 2023 Date of hearing: 20 September 2023 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2607 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FFR17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
23 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
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 Mansini
IN SUMMARY
The Applicant is a citizen of Sri Lanka who sought a protection visa on the basis of claims to fear harm on return due to political involvement of his father and uncle as members of the Janatha Vimukthi Peramuna (JVP).
The Applicant now seeks judicial review of a tribunal decision to affirm an administrative decision to refuse him a protection visa.
For the reasons that follow, the application must be dismissed with costs.
CONTEXT
Procedural
On 15 July 2012, the Applicant arrived in Australia at 18 years of age without a visa to enter and was processed as an “irregular maritime arrival”. On 16 August 2012, the Applicant was interviewed by an officer of the First Respondent’s department.
On 28 February 2013, the Applicant lodged application for a Protection (Class XA) (subclass 866) visa (protection visa) with an accompanying statutory declaration and was subsequently interviewed by a delegate of the First Respondent.
On 19 November 2014, a delegate of the First Respondent refused to grant the Applicant the protection visa.
The Applicant sought review of the delegate’s decision and, on 6 September 2016, the Administrative Appeals Tribunal (Tribunal) convened a hearing which the Applicant attended with assistance from his then representative and a Sinhalese interpreter.
On 3 November 2017, the Tribunal affirmed the delegate’s decision (Reasons). It is those Reasons that are subject of this judicial review application, filed on 30 November 2017.
Application presently before this Court
On 30 November 2017, this application for judicial review was filed. The Applicant told the Court that he did so with the assistance of his former representative but that person was at no time on the record in the proceedings in this Court. By that document, the Applicant articulated 5 grounds of review in the following terms:
4.The Tribunal showed apprehended bias in applying s.36(2)(a) and s.36(2)(aa) of Migration Act 1958 and Schedule 2 to the Migration Regulations 1994 to my case.
5.The Tribunal showed apprehended bias in applying Ministerial Direction 56 to my case.
6.The Tribunal displayed bias towards me by refusing to hear me. The Tribunal it seems had made up its mind that I would not be successful.
7.The Tribunal failed to accord procedural fairness to me by refusing to allow me to explain my position.
8. I seek that my case be sent back to the AA T for a fresh fair hearing.
(sic.)
On 8 December 2017, a response was filed on behalf of the First Respondent contending that the decision of the Tribunal was not affected by jurisdictional error.
On 22 August 2018, procedural orders were made by a Registrar of this Court listing the matter for a hearing on a date to be advised, by which the parties were directed to file and serve: any amended application, affidavit evidence, a court book and written submissions.
On 4 September 2018, the First Respondent filed a court book.
On 16 June 2022, the Registrar of this Court ordered that the name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’ and the application be listed for callover on a date to be fixed.
On 24 May 2023, a Registrar of this Court made orders listing the application for final hearing on a date to be fixed.
On 14 August 2023, procedural orders were made in chambers by which the parties were directed to file and serve: any amended application, additional evidence, a court book, written submissions and authorities to be relied upon. The matter was listed for final hearing on 20 September 2023.
On 13 September 2023, the First Respondent filed written submissions and a bundle of authorities.
It was uncontroversial that the Applicant had received the Court orders of 14 August 2023 but did not file any amended application, additional evidence, written submissions whether in accordance with the procedural orders of 14 August 2023 or at all. Nor was there any record of correspondence with the Court to request an adjournment or additional time to prepare materials in advance of the hearing.
On 20 September 2023, the matter proceeded to hearing as presently constituted. The Applicant attended with the assistance of a Sinhalese interpreter and the First Respondent was represented by a solicitor advocate. At the outset of the hearing, the process and role of the Court was explained to the Applicant and the Applicant indicated that he understood that the Court could not engage in a merits review. The Applicant confirmed that he had received the First Respondent’s written submissions but sought and was granted an adjournment to have the submissions translated, with the assistance of the Court-provided interpreter. With the assistance of the interpreter, the Applicant made oral submissions at the hearing, including to indicate some additional grounds, as set out below.
RESPECTIVE CONTENTIONS
Applicant’s contentions
By the original grounds of review numbered 4, 5 and 6 on the original application, the Applicant contended that the Tribunal was affected by apprehended bias or bias in terms of:
·its approach to the application (or lack thereof) of the statutory criteria at ss.36(2)(a) and (aa) of the Migration Act 1958 (Cth) (Act) and Schedule 2 to the Migration Regulations 1994 (Cth);;
·its application of Ministerial Direction No 56; and
·in refusing to hear from the Applicant and having made up its mind that the application would not succeed.
By the ground numbered 7 on the original application, the Applicant said that he was not accorded procedural fairness because the Tribunal refused to allow him to explain his position.
By the ground numbered 8 on the original application, the Applicant was understood to submit that his application should be determined afresh on remittal to the Tribunal.
The Applicant did not avail of the opportunities to file an amended application, evidence or written submissions. At the hearing the Applicant was asked if he wanted to elaborate, to which he said that he did not understand what was meant by these grounds and that the Tribunal did not refuse to hear from him, the Tribunal member had actually listened to him, the Tribunal did not approach the hearing unfairly and he thought the Tribunal member had understood what he had to say. But, nonetheless, the decision was wrong because:
(a)How could the Tribunal know he was not credible? Inconsistencies in his story could be explained by the following factors: he was only 18 years old on arrival, he is 29 years of age and more mature now; he has had many interviews, he is now more experienced with the process; and because he was talking for a long time his words may have been confused.
(b)How could the Tribunal know the situation in Sri Lanka without hearing from those that are there? The Applicant can give examples of the current situation in Sri Lanka by reference to the circumstances of his father, uncle and mother.
First Respondent’s contentions
The First Respondent contended that the Court should receive the Applicant’s oral submissions as concessions that he no longer contended apprehended bias or lack of procedural fairness. And, to the extent those original grounds were pressed, they were entirely misconceived.
The First Respondent argued that the Applicant’s bare allegations did not meet the necessary threshold of apprehended bias which required distinctly made and clearly proved allegations. In response to a question of the Court, the First Respondent accepted that there was no transcript or audio recording of the Tribunal hearing before the Court but said the onus was on the Applicant to so request and then produce this document to the Court especially as the First Respondent maintained that the Applicant could not articulate any claim of bias and denied that there was any refusal to hear from the Applicant.
It was also argued that there was no error in the application of the statutory criterion or Ministerial Direction No 56.
The First Respondent told the Court that there was no merit to the additional matters articulated by the Applicant at the hearing.
CONSIDERATION
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175.
Original grounds
By his submissions at the hearing, the Applicant was clearly understood not to press the grounds as they related to apprehended bias or a denial of procedural fairness. In the absence of hearing from the Applicant’s former migration agent, I decline to make any findings about the reasons why the application drafted by them was in no way reflective of the Applicant’s experience of the Tribunal hearing.
In any event, even were the Applicant properly understood to have pressed the grounds of the application as they were drafted, they can not succeed on what is before the Court.
It is well established that an allegation of bias or apprehended bias, whether actual or by way of pre-judgment, must be “distinctly made and clearly proved” in order to succeed: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 at [69]. There is nothing before the Court to justify such findings. Without an articulation of the nature of the bias or apprehended bias, this ground even if it were pressed would fail.
Apprehended bias is an aspect of denial of procedural fairness, which may result in jurisdictional error: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2] (Allsop CJ), [21] (Flick J); Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & [2022] FCAFC 41 (Chen) at [34]; both decisions citing Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [17]. The test for apprehended bias is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the decision maker might not bring a fair, impartial and independent mind to the determination of the matter on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]; Chen at [35].
On the Applicant’s account as given to the Court in these proceedings, it is impossible to discern a foundation for allegations of apprehended bias or procedural fairness as plead in the original application.
Alternatively accepting the Applicant’s original application on its face, on the written materials alone and without more, the Court is not able to conclude that there was a denial of procedural fairness in the conduct of the Tribunal hearing. The records before the Court support a finding that the Applicant was invited to attend a hearing before it and did so with representation by his then migration agent and the assistance of an interpreter. The hearing record noted that the Tribunal hearing extended for some 2.5 hours. The Reasons disclose that the Applicant gave evidence at the Tribunal hearing which the Tribunal took into account (see, for example, paragraphs [3], [30], [35], [42], [43] and [44]).
At paragraph [19] of its Reasons, the Tribunal referred to Ministerial Direction No 56 which was made pursuant to s.499 of the Act and required it to take into account any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT), expressly for protection status determination purposes to the extent relevant to the decision under consideration.
At paragraph [20] of its Reasons, the Tribunal noted that it had taken into account a then recent update to the relevant DFAT prepared country information. The Tribunal referred to the DFAT country information in various parts of its decision (see, for example, Reasons at [20], [38], [51], [52], [67], [74], [75], [98] and [99]. It was within the Tribunal’s decisional freedom to rely on the DFAT prepared country information and I discern no error of law or procedure in this respect.
Even if these grounds were pressed, no error of jurisdiction is made out.
For completeness, in the circumstances of the present case I accept it was not incumbent upon the First Respondent to produce the audio or transcript of the Tribunal hearing and would not have been persuaded to require this in the absence of something more specific (for example, an allegation of a remark or observation of the Tribunal member made during the hearing which was said to disclose bias or an absence of procedural fairness).
Additional grounds or matters raised
At the hearing, the Applicant was understood to contend error in the Tribunal’s findings as to his credibility and the application of country information. As those arguments were put, it is at least conceivable that they were captured by grounds numbered 4 and 5 of the original application. The First Respondent addressed the detail provided orally in their oral submissions. In the absence of any apparent prejudice, they are considered in the following paragraphs.
The Applicant lodged his application for a protection visa on 28 February 2013, at which time the applicable legislation was the Migration Act 1958 (Cth) Act No. 62, (commenced 26 November 2012).
At paragraphs [28] to [31] of its Reasons, the Tribunal made findings as to the Applicant’s credit. It acknowledged the importance of taking a reasonable approach in doing so, and went on to explain its reasons for assessing the Applicant's evidence as vague, limited and inconsistent. Critically, the Reasons record that the Tribunal raised its concerns with the Applicant at the hearing and accepted his explanations of youth as explaining his limited understanding and recall of childhood events. The Tribunal also accepted that he did not experience some events first-hand as explaining inconsistencies and that the time that had elapsed an explanation for why he may have forgotten certain details. But the Tribunal also found that, being 18 years of age when the Applicant departed Sri Lanka, the Tribunal would expect a strong understanding of the events significance to his claimed reasons for so departing and formed the view that his limited, hesitant and generalised responses were because there was no basis in reality for his claims and overall he was not a credible witness.
It is well established that the Tribunal is entitled to make credibility findings. Here, it did not entirely reject the Applicant’s explanation for the differences in his accounts given over time. But, where his accounts were rejected and credibility findings made, the Tribunal did so with reasons which are logical and probative. I do not discern any legal error or unreasonableness in the Tribunal’s approach in this regard.
Resolution
For the above reasons, the Applicant has not established jurisdictional error in the original grounds of review or the additional matters raised at hearing.
In reaching this outcome, I have taken into account that the Applicant was self-represented at the time of the final hearing and that English is not his first or spoken language. However I am satisfied that the Applicant had sufficient notice of the issues (more than 5 years since the response was filed in these proceedings) and was afforded ample opportunity to understand the issue(s), to seek independent advice and to respond including by invitation of this Court to file an amended application. He was also permitted to orally supplement his application at hearing. That the Applicant did not prepare his case in the period of almost 6 years after this application was filed is a matter for him, but the challenges that every self-litigant faces unfortunately do not excuse the lack of particularisation or failure to establish jurisdictional error.
CONCLUSION
For the above reasons, the application for review is dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 23 November 2023
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