FJK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 211
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FJK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 211
File number: PEG 393 of 2020 Judgment of: JUDGE LADHAMS Date of judgment: 31 March 2022 Catchwords: MIGRATION – judicial review of decision of Administrative Appeals Tribunal – whether Tribunal afforded applicant procedural fairness – whether there was an error of law in the Tribunal decision – whether Tribunal properly considered applicant’s claims – whether Tribunal made error of law – whether Tribunal misunderstood or misapplied s 36(2)(aa) and s 36(2B)(c) of the Migration Act 1958 (Cth) – materiality – whether Tribunal took into account relevant or irrelevant considerations – whether the Tribunal decision was unreasonable – s 438 certificate – Tribunal decision affected by jurisdictional error in relation to complementary protection assessment – writs issued Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190
Migration Act 1958 (Cth), ss 5J, 5K, 36, 91S, 190, 425A, 430, 438, 476, 477
Migration Regulations 1994 (Cth) reg 4.35D
Cases cited: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BSY16 v Minister for Home Affairs [2019] FCA 140
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
DQU16 v Minister for Home Affairs (2021) 388 ALR 363; [2021] HCA 10
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
STCB v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 93 ALD 272; [2006] HCA 61
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245
SZVLE v Minister for Immigration and Border Protection [2017] FCA 90
Division: Division 2 General Federal Law Number of paragraphs: 119 Date of last submissions: 18 February 2022 (first respondent)
17 March 2022 (applicant)Date of hearing: 19 October 2021 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr Peter Macliver
Mr Greg Johnson (submissions 18 February 2022)Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 393 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: FJK20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent made on 17 December 2020.
2.A writ of mandamus issue directed to the second respondent requiring the second respondent to reconsider the application according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
By application filed on 29 December 2020 pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 17 December 2020. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
For the reasons outlined below, I have found that there is jurisdictional error in the Tribunal decision in relation to the Tribunal’s consideration of the complementary protection criteria. I therefore issue writs to quash the Tribunal decision and remit the matter to the Tribunal for reconsideration according to law.
BACKGROUND
The applicant is a citizen of India who arrived in Australia in May 2014 as the holder of a student visa.
On 21 April 2017 the applicant applied for a protection visa. In his written claims, the applicant claimed to fear harm if he returned to India as the result of a property dispute between his father and brothers on the one side and their cousins on the other side. The applicant claimed that this property dispute resulted in his uncle being killed, and the perpetrators convicted. The applicant further claimed that following the conviction, the perpetrators threatened to seek revenge on the applicant’s family.
A delegate of the Minister made a decision to refuse to grant the applicant a protection visa on 8 March 2018.
On 21 March 2018 the applicant lodged an application for review by the Tribunal.
The applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments in relation to his application for a protection visa. This hearing was held on 8 December 2020.
On 17 December 2020 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
TRIBUNAL DECISION
The Tribunal considered that when giving his oral evidence, the applicant appeared to do so honestly and truthfully.
The applicant’s claims for protection advanced before the Tribunal were based on the property dispute referred to in his written claims and an incident that took place at a night club in Western Australia in 2017.
Property dispute
The Tribunal accepted that:
(a)in or before 2009 the applicant’s father and three uncles became involved in a dispute with their cousins regarding irrigation rights across the family’s ancestral agricultural land;
(b)the dispute escalated to verbal fights involving threats of violence and culminated in 2009 when one of the applicant’s uncles was shot and killed by a member of the opposing group;
(c)the applicant’s family made a complaint to the police which led to the offenders being arrested, tried in a criminal court, convicted and sentenced according to law;
(d)since about 2014 or 2015 members of the two family groups have been living in the same village; and
(e)no further threats or violence have been inflicted upon the applicant’s family and nothing further has happened since 2014 or 2015.
The Tribunal found that the applicant did not claim to fear persecution in respect of his race, religion or nationality as a result of the property dispute. To the extent that the applicant claimed that political bias or corruption had influenced the outcome of complaints to the state authorities, the Tribunal found that this does not amount to a fear arising on account of any political opinion.
The Tribunal then turned its mind to whether the applicant had a well-founded fear of persecution as a member of a particular social group. In this regard, the Tribunal found that the applicant’s fear was for the reason of his membership of a particular social group that consists of family and that s 5K of the Migration Act applied. The Tribunal identified that where s 5K applies, before determining that an applicant’s fear of persecution must be disregarded, the Tribunal is required to consider whether any other member or former member of the applicant’s family had been persecuted in the past or had a fear of persecution; if so, what the reason for that persecution was; and whether the reason is one of the five refugee reasons set out in s 5J(1) of the Migration Act.
In the present case, the Tribunal accepted that the applicant’s father and three uncles have been persecuted in the past or had a fear of persecution. The Tribunal considered that the reason for that persecution or fear of persecution was a dispute with their neighbouring landowner cousins regarding irrigation rights over agricultural land, which escalated to the murder of one of the uncles. There was no evidence to suggest that the reason for the dispute was for any reason other than a disagreement over competing irrigation rights under the applicable civil laws and customs of India.
The Tribunal found that the essential and significant reason for any harm suffered by the applicant’s family members in the past was not for any of the reasons set out in s 5J(1) of the Migration Act, but rather in respect of a civil dispute over irrigation rights and breaches of the relevant criminal law in India which have been adjudicated by the relevant authorities. It followed that the fear of persecution claimed by the applicant in relation to the 2009 events was not for one of the five refugee reasons and was to be disregarded by the Tribunal.
2017 incident in Western Australia
The Tribunal accepted that:
(a)in November or December 2017 the applicant attended a nightclub in Subiaco, Western Australia;
(b)while at the nightclub the applicant witnessed a fight between two groups;
(c)after the event he was approached by a friend and three of the friend’s associates and asked to identify the participants in the fight and relay what he had seen at the nightclub;
(d)when he declined to do so, he was assaulted, kidnapped and threatened by the friend and the three associates;
(e)he made a complaint to police and gave a statement to them concerning this treatment;
(f)the police arrested the group, and three of them were placed in immigration detention when it was found that their visas had expired and they were in Australia illegally;
(g)the applicant and his family received threatening phone calls from the family and associates of the three men in immigration detention; and
(h)the last occasion that he received a threatening phone call was towards the end of 2019.
The Tribunal found that the applicant’s evidence in relation to the nature of the threats he claims were made against him following this incident was vague. The Tribunal also noted that, on the applicant’s evidence, the threats ceased 12 months prior to the Tribunal decision. The Tribunal found that the applicant’s claim of fear based on the 2017 events was mere conjecture or surmise and did not amount to a well-founded fear.
Refugee criteria
Having considered the applicant’s claims individually and cumulatively, the Tribunal found that there was not a real chance that the applicant would suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to India now or in the reasonably foreseeable future. Accordingly, the Tribunal found that the applicant did not satisfy the criteria in s 36(2)(a) of the Migration Act.
Complementary protection criteria
Based on the same findings of fact it made in relation to the refugee criteria, the Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm for any of the reasons he claimed if he returned to India now or in the reasonably foreseeable future. The Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Migration Act.
PROCEEDINGS BEFORE THIS COURT
The applicant filed his application for judicial review on 29 December 2020. This is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application sets out a single ground of review which is handwritten and the final sentence is illegible. Those parts of the ground that can be read in the copy of the application on the Court file read as follows:
I [FJK20] born in India on [date] certify that all the facts provided here is true. I moved to Australia to pursue my study in diploma course in information technology leading to bachelors at Murdoch University. Talking about the situation in back home. My father has three brothers. We own a big chunk of property in India. There is a ongoing property dispute in between our family. The dispute was in between my father and their cousin brothers regarding the ownership of land. The dispute escalated to verbal fights. Eventually this fight took a shape of a massive dispute wherein each part sought legal counsel. In this fight Mr [BS] the elder brother of my father was killed by the other party. After this my family decided to make a legal action against the other party. And criminal got convicted and were put behind the bars for 10 years. After being convicted, they pledged to seek revenge from my family. It has been an emotional distress to my family because threats calls have not stopped for a single day after this. They have reported to police as well but they have not paid attention. My parents worried sick about me as well but are at bit of comfort since I am miles away. They are now [illegible] to my family that if any chance I will land in my country they will kill me. I am having sleepless nights and feel helpless. I want to stay here [illegible]. I feel safe here because this country [illegible].
The application was accompanied by an affidavit filed on 29 December 2020 in which the applicant deposed that he was applying for a protection visa because there are disputes in his hometown and he feels safe here, and that affidavit annexed a copy of the Tribunal decision (applicant’s first affidavit).
The applicant subsequently filed further affidavits in this proceeding.
On 20 March 2021 the applicant filed an affidavit purporting to raise additional or alternative grounds of review (applicant’s second affidavit).
The applicant’s second affidavit reads as follows (reproduced without alteration):
1. That I am the main applicant in this migration litigation
2.All the information provided in the forms, affidavits and proceeding is true and valid
3. The application should be considered according to the law.
4. The decision of the AAT made on 18th December 2020 should be quashed.
5.The respondent in making the decision did not comply with rules of natural justice and I the applicant was denied procedural fairness.
6. The Second respondent AAT decision included the error of the law.
7. The Second Respondent AAT took in account irrelevant considerations.
8. The Second Respondent AAT decision was unreasonable.
9.The Second Respondent AAT failed to took into account the relevant considerations.
10.The decision of the respondent failed meets the refugee law when making the decision.
11.I believe the tribunal made an error in coming to its decision due to my inability to prepare and present a proper case and therefore a meaningful opportunity to be heard by denying me procedural fairness.
12.The Second respondent AAT also made an error by finding that I do not engage the protections afforded at s.36 (2) (a) of the act therefore misapplying and misconstrued the s.36(2) (a) and s.36(2)(aa).
13.The Second respondent AAT has not considered each of the integers of my claims of the serious harm discussed with respects to my claims for refugees protection in the context of the complementary protection criterion regarding the real of significant harm at s.36(2)(aa).
14.The Second respondents AAT conclusion in making the decision is vague and is without considering the facts of my country report information.
15.The acknowledged difficulties of preparing and presenting my case I am from a different social, ethnic and cultural background and the difficulties I have with English language. Moreover, I believe the decision maker misinterpreted their obligations to consider representations I made to mitigate my offending behaviour as non-refoulement obligations.
The applicant filed another affidavit on 20 March 2021 in which he sets out reasons for seeking an adjournment of the hearing listed on 19 October 2021 (applicant’s third affidavit). There was no application in a case filed with this affidavit seeking an order that the hearing be adjourned. In summary, the applicant sought an adjournment of the hearing by reason of his unemployment, lack of work rights and limited financial support. The applicant deposed that he had been trying to get a lawyer through the asylum seeker centre, Legal Aid and other non-government organisations (NGOs) that support refugees. The applicant deposed that he had been advised that it would be hard for these NGOs to assist him with finding a lawyer as the case had to be read thoroughly through the professional lawyers, and there was limited time to do this before the final hearing.
The applicant filed a further affidavit on 26 March 2021, sworn by him on the same date (applicant’s fourth affidavit). This affidavit annexed two documents.
The first was a letter from his mother dated 20 March 2021 stating that if the applicant returns to India, it will not be safe for him due to the family disputes going on there. The letter further says that another party has killed an uncle of the applicant and has gone to jail for this, but is now out on bail and has pledged to take revenge. The letter further states that ‘they’ are continuing to threaten to kill the applicant if he returns to India, and while the family has filed a petition in the High Court of India to get justice, the applicant’s mother believes it will be safer for him to stay in Australia.
The second document annexed to the affidavit is a letter from the applicant’s father also dated 20 March 2021, stating that there is an ongoing property dispute between his family which has already resulted in the death of his brother. The letter states that a case against the other party has been filed, resulting in a 10 year sentence. However, the other party is now out on bail and is threatening to kill the applicant if he returns to India. While the family has filed a petition against them in the High Court of India, they are politically strong people and they will harm the applicant if he returns to India. The letter concludes by saying the applicant is safe in Australia.
As discussed below, I upheld an objection by the Minister to the admissibility of this affidavit.
On 18 October 2021, one day before the hearing, the applicant filed an application in a case seeking an adjournment of the final hearing for essentially the same reasons as was set out in the applicant’s third affidavit. No affidavit was filed with the application in a case. With the agreement of both parties, I treated the applicant’s third affidavit as supporting his application for an adjournment. This application in a case is addressed below.
The Minister filed written submissions in this matter on 5 October 2021. The filing of the submissions was in accordance with an Order made by a Registrar of this Court on 28 January 2021. The Minister also filed an affidavit on 5 October 2021 which was deposed by Mr Samuel Mark Cummings. Mr Cummings refers to a certificate issued under s 438 of the Migration Act and annexes, in a confidential annexure, a copy of the documents that were covered by the certificate.
The matter came before me for hearing on 19 October 2021. At that hearing the applicant represented himself and was assisted by an interpreter in the Punjabi and English languages. The Minister was represented by Mr Peter Macliver of counsel.
I reserved judgment at the conclusion of the hearing, but in the course of preparing judgment, I identified an issue relating to the Tribunal’s consideration of whether the applicant’s claims met the complementary protection criteria and I ordered the parties to file further submissions to address this issue. The Minister filed written submissions on 18 February 2022, prepared by Mr Greg Johnson of counsel, and the applicant filed an affidavit on 17 March 2022. I treat the applicant’s affidavit as a submission.
PRELIMINARY ISSUES RAISED AT THE HEARING
There were a number of preliminary issues addressed at the hearing on 19 October 2021.
Interpreter
The applicant appeared at the hearing in person and was assisted by an interpreter who participated in the hearing via video. At the start of the hearing the applicant requested that he be assisted by an interpreter who could be present in the court room with him. The Court advised the applicant that enquiries had been made, but there was no interpreter available who would be able to attend Court in person. It was because of the unavailability of any interpreter who could attend Court in person that an interpreter was booked to attend via video.
The applicant said that it was confusing not to have an interpreter sitting next to him. However, the applicant and interpreter both confirmed that they were able to understand each other and to communicate clearly with each other. I determined that it was appropriate to hear the matter with the interpreter participating via video. I explained to the applicant that if at any stage he did not understand anything that was said he should tell me.
I watched the applicant closely throughout the hearing. There were a few occasions where the applicant indicated that he did not understand. For the most part, the applicant’s indications that he was having difficulty understanding occurred when legal concepts were being discussed. When this occurred either Mr Macliver or myself repeated or summarised what had been said, often in a more simplified way. The applicant then indicated that he was able to understand.
I am satisfied that the applicant was able to understand what was said at the hearing. I am satisfied that the applicant was able to effectively participate in the hearing and was not denied procedural fairness as a result of the interpreter participating via video. I formed these views at the hearing of this matter. I have since listened to the audio recording of the hearing and I remain satisfied that the applicant was able to understand the interpreter throughout the hearing and was able to meaningfully participate in the hearing.
Application for adjournment
At the hearing I heard submissions from both parties in relation to the applicant’s request for an adjournment of the hearing. I refused the request for an adjournment and indicated I would give reasons for that decision in my judgment.
In his oral submissions in support of an adjournment, the applicant said that he is currently unemployed. He said that he has tried to obtain work rights by applying six times to the Department of Home Affairs and filing an application in the Federal Court. However, in each instance his application was refused. He said that he consulted Legal Aid, but he needs money to get legal advice. The applicant’s father put his land up for sale in order to financially support the applicant. The applicant submitted that if his father sells the land, the applicant would get money in January, which he could use to get a lawyer to represent him. The applicant submitted that he was unable to represent himself, and could not prepare documents without a lawyer. He submitted that he needed more time to prepare for the hearing.
Mr Macliver, on behalf of the Minister, submitted that the application for an adjournment should be refused. He referred to the time that has lapsed since the application was filed in December 2020, and that the applicant had been on notice of the hearing date since late January or early February of 2021. The applicant’s third affidavit indicated that he wished to seek legal advice from the asylum seeker centre, Legal Aid and other NGOs that support refugees. These are all organisations that provide legal services for people who otherwise cannot afford them. Mr Macliver further submitted that there is no evidence before the Court of what inquiries the applicant has made or what contact he has had with the organisations identified in the seven months since he filed his third affidavit. Mr Macliver submitted that there is no common law right or absolute entitlement to legal representation in civil proceedings, and referred me to ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [25] and SZVLE v Minister for Immigration and Border Protection [2017] FCA 90 at [40] in support of that proposition.
Mr Macliver referred me to BSY16 v Minister for Home Affairs [2019] FCA 140 at [4]-[6], where Thawley J said:
4The discretionary power to grant an adjournment is to be exercised judicially taking into account all relevant circumstances including the proper administration of justice.
5Whilst there is no absolute entitlement in a party to be legally represented before the Court, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted. The weight to be given to that desire is affected by various matters including what steps the appellant has taken to obtain such representation, and any explanation for delay in that respect, the likelihood of the appellant obtaining legal representation and the time required for the appellant to do so.
6 The application for an adjournment was refused for the following reasons:
(1)The appellant had engaged the appellate jurisdiction of this Court on 5 July 2018 and has had ample opportunity to secure legal representation.
(2)The transfer of the matter from Perth to Sydney also had the effect of transferring the hearing date from the November Full Court Sittings to the February Full Court Sittings. This had the effect of providing a de facto adjournment.
(3)The ground advanced in the notice of appeal is intelligible and focuses attention of the events which occurred in the Federal Circuit Court. The Court has had the benefit of reading the Tribunal’s lengthy ad detailed reasons and the succinct and considered reasons of the Federal Circuit Court.
(4)It did not appear from a review of those decisions and the ground of appeal, that the appellant would be unfairly disadvantaged by the lack of legal representation, particularly having regard to the next matter.
(5)The Court is cognisant of difficulties faced by litigants who have not secured legal representation and approaches the hearing of appeals in these circumstances in a way conducive to ensuring appellants are properly heard and that they are not unfairly disadvantaged by their difficult situation – see: MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] (Mortimer J).
In the present matter, I refused to grant the adjournment because the applicant had plenty of time to obtain a lawyer ahead of the hearing, having been aware of the hearing date since around 28 January 2021, when the hearing date was included in the Order made by a Registrar. There is no evidence of any steps taken by the applicant to try to secure legal representation since he filed his third affidavit in March 2021, and no evidence to suggest that he able would be able to obtain legal representation if an adjournment were granted. These factors weigh against the granting of an adjournment.
I also took into account the overarching purpose set out in s 190 in the Federal Circuit and Family Court of Australia Act 2021 (Cth), which provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. This includes considerations relating to the efficient use of judicial and administrative resources, the efficient disposal of the Court’s overall caseload and the disposal of all proceedings in a timely manner. Granting the applicant an adjournment of the hearing in the present case, taking into account the applicant’s reasons for seeking that adjournment, would not be consistent with the overarching purpose in s 190.
Objection to evidence
The Minister objected to the admissibility of the whole of the applicant’s fourth affidavit filed on 26 March 2021. I upheld this objection to the evidence. The affidavit simply annexes two letters, one from the applicant’s mother and one from his father, that address the merits of the applicant’s claims for protection. These letters post-date the Tribunal decision and were not before the Tribunal. They are not relevant to the issue to be considered by this Court, namely, whether the Tribunal decision is affected by jurisdictional error.
NEED TO ESTABLISH JURISDICTIONAL ERROR
In order to be entitled to relief from the Court, the applicant must establish that the Tribunal decision is affected by jurisdictional error.
The concept of jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
In circumstances where the applicant is self-represented, I have interpreted the grounds broadly and considered whether the applicant is raising anything that might allege jurisdictional error.
APPLICANT’S ORAL SUBMISSIONS AT THE HEARING
At the hearing, I gave the applicant the opportunity to explain his grounds of application and what he believes the Tribunal did wrong. As the Federal Court said in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9], it is not usually appropriate to dismiss a review ground for lack of particularisation in a protection visa case where the applicant is self-represented, without first giving the applicant an opportunity to explain orally the matters that are said to give rise to the ground of review.
The applicant submitted that:
(a)when he applied for the protection visa, his family was getting threats;
(b)his family were nervous and his father was dealing with this matter in India and getting threats;
(c)he told the Tribunal that his family in India was continuing to receive threats;
(d)he is not safe in India because the government cannot give him protection;
(e)his father gave evidence annexed to the applicant’s affidavit to the Court that the applicant is safe in Australia, but will not be safe in India, but the Court has not considered that affidavit (as I had ruled it inadmissible);
(f)if he returns to India, the problems that he had in 2009 will start again;
(g)his father told him to remain away for his safety; and
(h)the government in India will not protect him as his father has not received justice since 2009.
The applicant’s oral submissions do not identify any error in the Tribunal decision. Rather, the applicant disagrees with the outcome of his review by the Tribunal and his submissions are directed to why he considers he should be granted a protection visa. Essentially, the applicant is asking the Court to engage in merits review. The Court has no power to engage in merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The applicant’s oral submissions do not establish jurisdictional error in the Tribunal decision, either on their own or when taken as an explanation of the grounds raised in the application and second affidavit.
GROUND RAISED IN APPLICATION
The Minister submits, and I accept, that the ground raised in the application does not allege any jurisdictional error. The applicant has simply restated why he believes that he should be granted a protection visa and restates some of his claims for protection. The applicant does not, in the ground set out in the application, articulate any alleged error in the Tribunal decision.
This suggests that the applicant is asking the Court to engage in merits review. As indicated above, the Court does not have the power to consider the merits of the applicant’s claims for protection and cannot decide whether the applicant meets the criteria for a protection visa.
The ground raised in the application does not establish any jurisdictional error.
GROUNDS RAISED IN APPLICANT’S SECOND AFFIDAVIT
The applicant’s second affidavit can be read as raising unparticularised assertions that the Tribunal decision is affected by the following jurisdictional errors:
(i)denial of procedural fairness, including on the basis that the applicant was denied a meaningful opportunity to be heard due to his inability to prepare and present a proper case;
(j)error of law, including that the Tribunal misapplied and misconstrued s 36(2)(a) and s 36(2)(aa) of the Migration Act, and misinterpreted its obligations to consider representations that the applicant made to mitigate his offending as non-refoulement obligations;
(k)taking into account irrelevant considerations and failing to take into account relevant considerations, including by failing to consider facts in the country information reports; and
(l)unreasonableness.
The Minister submits that the applicant should be refused leave to raise these grounds because they are vague, lack particularity and do not enable the applicant’s case to be apprehended or understood.
While there is considerable merit in the Minister’s submission, I consider that the preferred approach is to endeavour to understand the applicant’s grounds and consider each of them.
Procedural fairness
There is no suggestion in the materials in the court book that the applicant sought any additional time to prepare his case before the Tribunal, or that he expressed to the Tribunal that he had any difficulties preparing or presenting his case.
The applicant lodged his application to the Tribunal in March 2018. The invitation to attend a hearing was sent to him by email on 16 November 2020 to the email address provided by the applicant for the purposes of the review. The applicant was given more notice of the hearing than the minimum notice period required by s 425A(3) of the Migration Act and reg 4.35D(3) of the Migration Regulations 1994 (Regulations). The hearing invitation set out the time, date and place of the hearing.
The applicant was assisted by an interpreter at the hearing before the Tribunal, and it is apparent from the detailed description in the Tribunal decision of the evidence that the applicant gave that he was able to meaningfully participate in the hearing.
The applicant was on notice of the dispositive issues from the delegate’s decision, in relation to the property dispute, and the questions that the Tribunal asked the applicant at the hearing, in relation to both the property dispute and the incident in Western Australia in 2017.
I am satisfied that the applicant had adequate time to prepare for his hearing and that he had a real and meaningful opportunity to participate in the hearing. I am satisfied that he was aware of the issues that needed to be addressed and that he was able to give evidence in relation to those issues.
The Tribunal has not denied the applicant procedural fairness.
Error of law
The paragraphs of the applicant’s second affidavit that allege that the Tribunal made an error of law include:
(a)paragraph 6 which simply asserts that the decision included an error of law;
(b)paragraph 12 which suggests that the Tribunal has misapplied and misconstrued ss 36(2)(a) and 36(2)(aa) of the Migration Act; and
(c)paragraph 15 where the applicant asserts that the Tribunal ‘misinterpreted their obligations to consider representations I made to mitigate my offending behaviour as non-refoulement obligations’.
The final assertion, expressed at paragraph 15, can be disposed of briefly. There is no evidence before the Court to suggest that the applicant made any representations to the Tribunal in relation to offending behaviour, or that he even has any criminal record. The Tribunal is not required to consider any claim that was not expressly raised by the applicant and which did not clearly emerge on the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE) at [55], [68]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (AYY17) at [18].
The applicant has not identified the way in which he asserts that the Tribunal has misinterpreted or misapplied ss 36(2)(a) and 36(2)(aa) of the Migration Act, or otherwise made an error of law. The way in which paragraph 12 of his affidavit reads suggests that the error asserted is simply that the Tribunal did not find that the applicant met the criteria for a protection visa. In this regard, it appears that the applicant is seeking merits review, which is beyond the jurisdiction of the Court.
I have nevertheless considered whether there is any jurisdictional error in the Tribunal’s interpretation and application of ss 36(2)(a) and 36(2)(aa) of the Migration Act.
Refugee criteria in s 36(2)(a) of the Migration Act
In relation to the refugee criteria in s 36(2)(a) of the Migration Act, the Tribunal correctly recognised that the reason for any claimed harm must be one of the reasons set out in s 5J(1)(a) of the Migration Act, namely, race, religion, nationality, political opinion or membership of a particular social group.
In relation to the applicant’s claims based on the property dispute in India, there is no error in the Tribunal’s understanding that the applicant’s claims were not for reason of his race, religion or nationality and that his claims of political bias or corruption did not amount to a claim a fear based on political opinion. When considering whether the applicant was a member of a particular social group, the Tribunal appropriately recognised that the applicant was a member of a particular social group that comprised of family. As a consequence of this, the Tribunal identified that it needed to consider s 5K of the Migration Act and there is nothing in the Tribunal decision to suggest that it has misunderstood the operation of s 5K in any way.
In interpreting and applying s 5K the Tribunal had regard to the High Court decision in STCB v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 93 ALD 272; [2006] HCA 61 (STCB). That case considered the interpretation and application of s 91S of a version of the Migration Act which is no longer in force. The terms of s 91S considered in STCB are substantially similar to the terms of s 5K in the version of the Migration Act considered by the Tribunal, and the Tribunal’s reliance on STCB was appropriate. Notably, the High Court in STCB at [29] held that s 91S required the Tribunal to consider each question posed by s 91S(a) and (b) before determining that it could disregard the applicant’s fear of persecution.
In the present case, the Tribunal considered each question posed by s 5K(a) and (b). In considering s 5K(a), the Tribunal accepted that the applicant’s father and uncles had been persecuted in the past or had a fear of persecution, but found that the fear of persecution was not for one of the five refugee reasons in s 5J(1). The Tribunal then found at [59] that it followed that the applicant’s fear in respect of the events of 2009 was not for one of the five refugee reasons and was to be disregarded by the Tribunal. This finding did not refer to the express wording in s 5K(b), which required the Tribunal to disregard any fear of persecution, or any persecution, of the applicant ‘where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution’ of the applicant’s family members for a reason not referred to in s 5J(1)(a) had never existed. However, when read with the Tribunal’s characterisation of the applicant’s claim at [52] that the claimed fear was ‘as a direct result of his membership of his family, and by reason on his father’s and uncle’s dispute with their cousins over irrigation rights’, it is clear that the Tribunal formed the view that the applicant’s fear would not exist were it not for the persecution or fear of persecution faced by his family as a result of the property dispute over irrigation rights.
The Tribunal rejected the applicant’s claim in relation to events in 2017 in Western Australia on the basis that the asserted fear was not well-founded. The Tribunal found that the applicant’s evidence about the nature of the threats was vague, and that his claim to fear harm was based on mere conjecture or surmise. These findings were open to the Tribunal on the evidence before it and do not reflect any misapplication or misunderstanding of s 36(2)(a) of the Migration Act.
Complementary protection criteria in s 36(2)(aa) of the Migration Act
After the hearing of this matter, and in the course of preparing this judgment, I identified some potential issues with the Tribunal’s consideration of the complementary protection criteria which had not been addressed at the hearing.
The Tribunal commences its consideration of the complementary protection criteria by expressing the conclusion at [66] (emphasis added):
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future
There are some potential difficulties in simply referring to ‘the above findings’ as the factual foundation for rejecting the applicant’s claims against the complementary protection criteria in this matter. That is because one of the applicant’s two claims to fear harm had been disregarded under s 5K of the Migration Act for the purposes of assessing the refugee criteria, but it was not appropriate for the Tribunal to similarly disregard that claim for the purpose of the complementary protection criteria. It was not immediately clear whether the reference to ‘the above findings’ included or excluded in that statement the findings made by the Tribunal in determining that s 5K applied.
I also considered that there were possible errors in the Tribunal’s reasoning at [67], where it said (emphasis added, footnotes omitted):
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to India as there is taken not to be a real risk of significant harm since the ‘real risk’ is one faced by the sons of indebted fathers in India generally and is not faced by the applicant personally: s.36(2B)(c) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criteria on in s.36(2)(aa) of the Act.
In the first half of this paragraph, the Tribunal has simply set out findings that the applicant will not face a real risk of any of the types of the harm that fall within the definition of ‘significant harm’ in s 36(2A) of the Migration Act. However, the sentence emphasised in bold, is potentially troubling for two reasons. First, the reference to ‘sons of indebted fathers in India’ is confusing and misplaced and does not appear to accurately reflect the claims raised by the applicant. The applicant’s claims in this matter were not based on debts owed by his father. Rather, the relevant claim was based on a dispute between the applicant’s father and uncles on the one hand and their cousins on the other hand in relation to irrigation rights on adjoining properties. Second, I had significant concerns that the Tribunal misunderstood or misapplied the exclusion in s 36(2B)(c), which provides that a non-citizen is taken not to face a real risk of significant harm in a country if the Minister (or Tribunal on review) is satisfied that the risk is one faced by the population of the country generally, and is not faced by the non-citizen personally.
The applicant had not particularised his grounds of application in any way that would put the Minister on notice that the Minister may be required to address these issues. I am mindful of the Federal Court’s comments in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 at [100] that, in dealing with self-represented litigants in migration proceedings, the judge should ‘make the process as fair as possible and then … do her or his best to be astute and alert to the possibility of legal error in the tribunal’s decision when considering the material before her or him, and be prepared to raise any such possibilities with the Minister’s legal representatives.’ I therefore convened a directions hearing on 20 January 2022, explained my concerns to the parties and made orders to give both parties an opportunity to make submissions on these issues.
The Minister filed written submissions on 18 February 2022. In these submissions:
(a)The Minister acknowledged that the penultimate sentence in [67] of the Tribunal’s reasons is difficult to understand. The Minister submitted it is not apparent that the applicant advanced any claim of harm arising from his ‘indebted father’, and it is unclear how a risk faced by a son of an indebted father would constitute a risk faced by the population of India generally. A further complication is that the Tribunal found ‘no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to India’ by reference to s 36(2B)(c) of the Migration Act.
(b)The Minister submitted that, whatever the Tribunal intended by the penultimate sentence in [67], any error in it does not undermine the decision or result in jurisdictional error. The Minister submitted that the error was not material because there was no role for the exclusionary provision in s 36(2B) to perform. This was because the Tribunal had, in the first two sentences of [67], found that there was no real risk of the applicant facing significant harm and therefore the applicant did not satisfy the criteria in s 36(2)(aa) of the Migration Act.
(c)The Minister further submitted that the Tribunal’s reference in [66] to ‘the above findings’ should be understood to incorporate its findings that, to the extent that the irrigation dispute involved criminal acts, those acts had been dealt with in the past by the relevant authorities and the criminal justice system in India, and were the subject of ongoing litigation. The Minister submitted, citing DQU16 v Minister for Home Affairs (2021) 388 ALR 363; [2021] HCA 10 (DQU16) at [27], that the Tribunal was entitled to refer to and rely on any relevant findings that it made in considering the refugee criterion under s 36(2)(a). The Minister submitted that the Tribunal did not take into account, in reaching its conclusion on complementary protection, any matters that s 5K had required it to disregard, noting that s 5K only requires the Tribunal to disregard ‘fears of persecution’.
(d)The Minister submitted that the Court should not view the Tribunal’s reasons with an eye attuned to error, and that ‘a beneficial construction should be given to the way Tribunals such as the Tribunal here express themselves, and a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying’: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14].
The applicant filed a further affidavit on 17 March 2022. As indicated above, I treat this affidavit as a submission, rather than evidence, and I note that in the first paragraph of the affidavit, the applicant refers to it as a submission. The applicant primarily refers to the factual background of the property dispute, court proceedings in India, threats to his father and the applicant’s fears that he and his family will be killed in India. The applicant does not address the legal issues that I raised, or any potential errors in the Tribunal decision.
Having considered the submissions of both parties, I find that the Tribunal’s approach to the complementary protection criteria gives rise to jurisdictional error.
I first address [67] of the Tribunal’s reasons. I find that the Tribunal has made errors in its finding that there are ‘no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to India as there is taken not to be a real risk of significant harm since the ‘real risk’ is one faced by the sons of indebted fathers in India generally and is not faced by the applicant personally’. In making this finding, the Tribunal has misunderstood the applicant’s claims for protection, as there is no evidence before the Court that the applicant ever claimed to fear harm on the basis of any debt owed by his father.
Even if the reference to ‘sons of indebted fathers’ is merely an unfortunate miswording of the applicant’s claim, and is intended to be a reference to family members involved in land disputes or something similar, it is difficult to see how s 36(2B)(c) could apply. The applicant claimed that he would be specifically targeted because of the family feud over irrigation rights. The Tribunal has not explained how this would amount to a risk faced by the population generally. The Federal Court explained the operation of s 36(2B)(c) in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11] where Rares J said:
In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.
It is difficult to see how any risk faced by the applicant in the present matter could be faced by the population generally. The Tribunal’s reliance on s 36(2B)(c) is misplaced and amounts to a misapplication of the exclusion.
The error of the Tribunal will only amount to jurisdictional error if it is material, in the sense that the error could realistically had deprived the applicant of the opportunity of a successful outcome: SZMTA at [45]. I have considered the Minister’s submission that the exclusionary provision in s 36(2B) had no role to play because the Tribunal had ready found that the applicant did not meet the criteria in s 36(2)(aa) before it applied the exclusionary criteria. The difficulty with that submission is that, on the face of the Tribunal decision, at least part of the reason for the Tribunal reaching the conclusion that the applicant did not face a real risk of significant harm is because of the operation of the exclusionary provision in s 36(2B)(c). This can be seen from the use of the word ‘as’ in the penultimate sentence in [67] of the Tribunal’s reasons.
Taking into account the Tribunal’s reasons as whole, and for the reasons explained below addressing the other issue I raised with the parties in relation to complementary protection, I do not consider that the conclusory statements that the applicant did not face a real risk of significant harm, or would face treatment that falls within the definition of significant harm, provide an independent basis for the Tribunal’s decision that left no room for the operation of s 36(2B)(c). It is possible that the Tribunal could have reached a different conclusion if it did not make the error at [67] and, accordingly, I find that the error is material.
In relation to the issue in [66], the Tribunal found that the applicant would not face a real risk of significant harm if returned to India. With the exception of the reason given based on s 36(2B)(c) of the Migration Act, which I have found is erroneous, the only reason advanced by the Tribunal for its conclusion that the applicant did not meet the complementary protection criteria in s 36(2)(aa), or for its finding that the applicant would not face treatment that amounts to significant harm as defined in s 36(2A), is ‘in view of the above findings’.
The Tribunal was entitled to rely on findings it made in the course of considering the refugee criteria in s 36(2)(a) of the Migration Act for the purpose of assessing whether the applicant met the complementary protection criteria in s 36(2)(aa): DQU16 at [27]. However, not all of the Tribunal’s earlier findings were relevant to its assessment of the applicant’s claims under the complementary protection criteria. It is therefore necessary to consider which of its earlier findings the Tribunal relied on, and whether the findings made earlier in its decision comprise a sufficient basis for the Tribunal’s conclusion in relation to complementary protection, to ascertain whether the Tribunal has properly understood and completed its statutory task.
The Tribunal did not expressly identify in its reasons which of ‘the findings above’ it relied on in reaching its complementary protection conclusion. In many cases, that will not pose any problems, because it will either be obvious from the context of the Tribunal decision which findings were relied on, or because all of the Tribunal’s earlier findings provide a basis to support a conclusion reached in relation to complementary protection. However, in the present case, the Tribunal made a number of findings in relation to the applicant’s claim based on a property dispute that led it to conclude that s 5K applied and the applicant’s fear of persecution was to be disregarded. The Tribunal did not assess the chance or nature of any harm the applicant may face as a result of the property dispute over irrigation rights. There is no equivalent of s 5K that applies when assessing an applicant’s claims against the complementary protection criteria, and the Tribunal was required to consider whether the applicant faced a real risk of significant harm as a result of the property dispute.
In the present case, it is likely that the words ‘the findings above’ at [66] incorporate, relevant to the property dispute claim, the Tribunal’s findings of fact at [46(a)-(f)], which are summarised at [11] of these reasons for judgment. The Minister submitted that the reference to the ‘above findings’ incorporates the Tribunal’s findings at [57], read with [56]. In these paragraphs, the Tribunal said:
56.Taken at their highest, the applicant’s claims arguably relate to issues such as local corruption, and perceived shortcomings in India’s criminal justice system and the rule of law. These reflect broad-socio economic issues, political and legal conditions in India of general application, and they are consistent with the country information.
57.However, notwithstanding these claims, to the extent that the irrigation dispute has involved criminal acts the evidence before the Tribunal is that those acts have been dealt with in the past by the relevant authorities and the criminal justice system in India. Further, the applicant’s evidence is that the issues raised by the dispute are the subject of ongoing litigation commenced by the applicant’s family in the High Court there.
I am prepared to accept that the reference at [66] to the ‘above findings’ includes these paragraphs.
The findings at [46], [56] and [57] do not amount to any assessment of whether the applicant will face a risk of harm in the reasonably foreseeable future. The findings at [46] are findings of fact about what has happened in the past. At [56], the Tribunal characterised the applicant’s claim, presumably only insofar as the applicant expressed his and his family’s discontent with the legal proceedings that followed his uncle’s death, but did not make any finding that might be dispositive of the applicant’s claims for complementary protection. The Tribunal’s findings at [57] are merely findings that legal action has been taken, and do not amount to any assessment that the applicant could obtain, from an authority in India, protection such that there would not be a real risk that he would suffer significant harm, which would be relevant to s 36(2B)(b) of the Migration Act.
It is not possible to ascertain from the Tribunal’s reasons the manner in which findings of fact made earlier in its reasons led to its conclusion that the applicant would not face a real risk of significant harm in the reasonably foreseeable future. For example, did the Tribunal consider that any real risk of harm to the applicant arising from the property had passed and did not extend into the reasonably foreseeable future? Did the Tribunal consider that the applicant himself would not be a target of any harm, given that the dispute primarily involved his father and uncles, and not the applicant personally? Did the Tribunal consider that the applicant may still receive threats of harm, but that the nature of the harm threatened did not amount to significant harm as defined in s 36(2A) of the Migration Act? Did the Tribunal consider that India had an effective criminal justice system such that the authorities would be able to effectively protect the applicant? It is not evident from the Tribunal’s reasons whether it formed views on any or all of these questions, and if so, what views it formed and why. The Tribunal’s obligation in s 430 of the Migration Act to provide a written statement requires it to provide reasons for its decision, as well as its decision and the findings of fact on which the decision was based.
The consequences in the present case of the absence of any meaningful reasons to explain how ‘the above findings’ led to the Tribunal’s conclusion that the applicant did not meet the complementary protection criteria are as follows:
(a)it leads me to infer that the Tribunal’s reliance on the ‘above findings’ includes its reasoning in relation to, and as a consequence of, the application of s 5K of the Migration Act, which was not relevant to the complementary protection assessment and suggests that the Tribunal misunderstood or misapplied s 36(2)(aa) of the Migration Act; and
(b)further or alternatively, it suggests that the Tribunal has failed to properly carry out its statutory task.
Additionally, my earlier conclusion that the error at [67] of the Tribunal’s reasons is material is reinforced. I cannot ascertain the Tribunal’s reasons for its complementary protection finding and therefore cannot conclude that there is no realistic possibility that the applicant may have been deprived of the opportunity of a successful outcome had the error at [67] not been made.
As a result of the jurisdictional errors in assessing complementary protection, the Tribunal decision will be set aside and the matter will be remitted to the Tribunal for reconsideration according to law.
By way of completeness in addressing the applicant’s unparticularised assertion of an error of law, I do not identify any jurisdictional error in the Tribunal’s conclusion on complementary protection in relation to the applicant’s claims based on events in Western Australia in 2017. The Tribunal found, for the purposes of the refugee criteria, that any fear the applicant held was not well-founded, and therefore there was not a real chance that he would face serious harm. No issues in relation to s 5K arose in relation to this claim, and it was open to the Tribunal to rely on its earlier findings to reach the conclusion that the applicant did not face a real risk of significant harm on account of the events in Western Australia in 2017.
Relevant and irrelevant considerations
Paragraph 7 of the applicant’s second affidavit alleges that the Tribunal took into account irrelevant considerations. The applicant has not specified which considerations taken into account by the Tribunal are said to be irrelevant. At paragraph 9 of his second affidavit the applicant alleges that the Tribunal failed to take into account relevant considerations. Again there is no indication of which relevant considerations the Tribunal was required to, but did not, take into account. There is also an allegation at paragraph 13 of the applicant’s second affidavit that the Tribunal failed to consider each integer of his claims, but again there is no indication of what integer of a claim the Tribunal is said to have overlooked. At paragraph 14 of his second affidavit, the applicant complains that the Tribunal’s decision is vague and does not consider the facts of his country information reports.
The applicant did not expand upon these grounds at the hearing in any way and it is difficult to understand with precision the error that he is alleging.
Insofar as the applicant complains that the Tribunal did not take into account the country information he provided, the ground is without merit. There is no evidence before the Court to suggest that the applicant provided any country information to the Tribunal or otherwise asked the Tribunal to have regard to any particular country information. In any event, it is well-established that the choice of country information and the weight to be given to country information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13].
It is also well-established that the Tribunal is required to consider each claim raised by the applicant and their component integers: NABE at [55], [68]; AYY17 at [18]. I have reviewed the claims made by the applicant in his written application for protection and I have considered the summary in the Tribunal’s reasons of the evidence that the applicant gave to the Tribunal. I am unable to identify any claim or integer of a claim raised by the applicant that the Tribunal failed to consider.
In reaching its decision, the Tribunal indicated that it had regard to information in the Department file and that this information relevantly included the applicant’s protection visa application forms, his identity documents, the delegate’s decision, and the review application form to the Tribunal. The Tribunal also indicated that it had regard to the Department of Foreign Affairs and Trade’s most recent country information report in relation to India, published on 10 December 2020. The Tribunal also clearly had regard to the oral evidence given by the applicant at the Tribunal hearing. All of the matters taken into account by the Tribunal are relevant to its decision and comprised information in relation to which it was appropriate for the Tribunal to have regard. The applicant’s suggestion that the Tribunal took into account irrelevant considerations is not established.
I have also been unable to identify any relevant consideration or material evidence that the Tribunal was required to, but did not, take into account in reaching its decision. No jurisdictional error is established based on the allegation that the Tribunal failed to take into account a relevant consideration.
Unreasonableness
The applicant also asserted in his second affidavit that the Tribunal decision was unreasonable. He has provided no information to indicate the basis upon which he says the Tribunal decision is unreasonable.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [27], the High Court identified that unreasonableness can be a conclusion reached after the identification of some underlying jurisdictional error. I have found jurisdictional error above based on the Tribunal’s consideration of the applicant’s claims against the complementary protection criteria. Based on the errors I have identified above, the Tribunal decision can also be labelled as unreasonable.
Given that I have found that there is jurisdictional error based on the Tribunal’s consideration of the complementary protection provisions, it is not otherwise necessary for me to address whether the Tribunal decision is unreasonable.
SECTION 438 CERTIFICATE
In his role as a model litigant, the Minister has raised an issue relating to a certificate issued under s 438 of the Migration Act.
On 26 February 2019 a delegate of both the Minister for Home Affairs and the Secretary of the Department of Home Affairs signed a certificate issued under s 438 of the Migration Act. That certificate reads as follows:
CERTIFICATE AND NOTIFICATION REGARDING ADMINISTRATIVE APPEALS TRIBUNAL’S DISCRETION TO DISCLOSE CERTAIN INFORMATION UNDER s438 OF MIGRATION ACT 1958
Public Interest folios
I notify the Administrative Appeals Tribunal that s438 applies to:
The source information received in the Border Watch Allegations and Referral Team via web form on 7 November 2018 of TRIM reference number OPD2019/57575 of file number CLF2017/37278, and certify that disclosure of this material would be contrary to the public interest because:
(a)disclose or enable a person to ascertain the existence or identity of, a confidential source of information
There is nothing before the Court to suggest that the Tribunal disclosed to the applicant the existence of the certificate issued under s 438. The High Court in SZMTA and MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 confirmed that procedural fairness requires the applicant to be put on notice of the existence of a certificate regarding material that is said to be confidential. In the present case, the Tribunal breached its procedural fairness obligations by not disclosing the existence of the s 438 certificate to the applicant. This breach of procedural fairness will amount to jurisdictional error if the breach is material, in the sense that, had the breach not occurred, the applicant could realistically have been deprived of the opportunity of a successful outcome.
I therefore need to consider whether the Tribunal’s failure to disclose the existence of the certificate to the applicant is a material error. In so doing, I have considered the nature of the information covered by the certificate and the relevance of that information to the Tribunal’s decision.
As indicated above, the information covered by the certificate is provided to the Court by way of a confidential annexure to the affidavit of Mr Cummings affirmed on 5 October 2021. That annexure is subject to a claim of public interest immunity by the Minister. The Minister’s claim to public interest immunity is on the basis that the provision of the information would, or could, enable the identification of a confidential source. Some parts of the confidential annexure are redacted and those redactions are made on the basis that the content relates to a third party and is therefore irrelevant to this proceeding. The Minister submitted that the Minister and his Department rely on the cooperation and participation of members of the community to provide information about possible non-compliance and wrongdoing in Australia’s migration program. Because of this, there is a public interest in ensuring public confidence in the ability to make such reports confidentially. The Minister submitted that this public interest consideration outweighs the public interest considerations that support the information being made available to the applicant.
I have reviewed the confidential annexure to ascertain whether the claim to public interest immunity is appropriately made. I am satisfied that there is an appropriate basis for the Minister to claim public interest immunity and I uphold the claim to public interest immunity for the reasons provided on behalf of the Minister.
I have also reviewed the confidential annexure to assess whether the Tribunal’s failure to advise the applicant of the existence of the s 438 certificate could realistically have deprived the applicant of the opportunity of a successful outcome. In written submissions, the Minister described the content of the information covered by the certificate as ‘information from a third party who made a confidential report to the Department of Home Affairs that the applicant had been working in Australia contrary to his visa conditions’. I am satisfied that this is an accurate description of the information or document covered by the certificate.
I accept the Minister’s submission that the Tribunal’s failure to advise the applicant of the existence of the s 438 certificate is not a material error in the present case. The information in the certificate relates to whether the applicant was working in breach of his visa rights. The Tribunal addressed the applicant’s work status at [27] of its reasons. The Tribunal there said:
The applicant stated in evidence that he is not working. The tribunal has no cogent evidence to the contrary before it and regards the applicant’s work status as irrelevant to the question before it. Put differently, the evidence available to the Tribunal as to the applicant’s work status does not weigh either in his favour or against him in this application and does not bear upon his credibility.
It is apparent from this paragraph that the Tribunal considered the information covered by the certificate to be irrelevant to the issues that it needed to determine. It can also be inferred from [27] of the Tribunal’s reasons that it did not consider the information covered by the certificate to be cogent information. The Tribunal has provided a clear indication that it did not treat the information in the certificate as determinative or relevant in any way, and it is apparent from [27] that the Tribunal did not have regard to the information covered by the certificate in assessing the applicant’s credibility.
In these circumstances, where the Tribunal has effectively placed no weight on the information covered by the certificate in reaching its decision, it cannot be said that the Tribunal’s failure to advise the applicant of the existence of the certificate could realistically have deprived the applicant of the opportunity of a successful outcome.
Accordingly, I find that the s 438 certificate does not give rise to any jurisdictional error in the Tribunal decision.
CONCLUSION
I have found jurisdictional error in the Tribunal decision based on its complementary protection assessment. The Tribunal decision will be set aside and the matter will be remitted to the Tribunal for the Tribunal to reconsider the application according to law.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 31 March 2022
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