FPB18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 859
•9 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FPB18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 859
File number(s): SYG 2976 of 2018 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 9 September 2024 Catchwords: MIGRATION – Administrative Appeal Tribunal – protection visa – Refugee Convention – particular social group – learning disability – well–founded fear of persecution not established – real risk of significant harm not established – no jurisdictional error
PRACTICE AND PROCEDURE – admissibility of new evidence – relevance – limited probative value – danger to mislead or confuse – ss 55 and 135 of Evidence Act 1995 (Cth) – discretion to exclude – inadmissible evidence
Legislation: Evidence Act 1995 (Cth) ss 55, 135
Migration Act 1958 (Cth) ss 36, 91R, 476(1)
Federal Circuit Court Rules 2001 (Cth) Division 11.2
Cases cited: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565; [2021] FCAFC 195
Applicant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
Attorney-General (NSW) v Quin (1990) 170 CLR 1
FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; 88 ALJR 754; [2014] HCA 26
Hughes Aircraft Systems International v Airservices Australia (No 3) [1997] FCA 1537
La Trobe Capital & Mortgage Corp Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; 273 ALR 774; [2011] FCAFC 4
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12; 98 ALJR 610
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421;[2019] HCA 3
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; 58 ALD 231; [1999] FCA 507
Reading v ABC [2003] NSWSC 716
Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216; (2014) 67 MVR 601
SZHEW v Minister for Immigration and Citizenship [2009] FCA 783
SZRMQ vMinister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142SZYBR & Anor v Minister for Immigration and Citizenship & Anor [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of hearing: 28 August 2024 Place: Sydney Applicants: First Applicant on behalf of all Applicants Respondents: Mr T. Reilly of Counsel (instructed by Ms A. Wilford of Sparke Helmore Lawyers) ORDERS
SYG 2976 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FPB18
First Applicant
FPV18
Second Applicant
FPX18
Third Applicant
FPZ18
Fourth Applicant
FQA18
Fifth Applicant
FQB18
Sixth Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
9 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application be dismissed.
3.The first, third and fourth applicants pay the first respondent’s costs and disbursements of, and incidental to, the application, fixed in the amount of $8,371.30.
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 PAPADOPOULOS
INTRODUCTION
The applicants are citizens of South Korea. The first and third applicants are respectively husband and wife, with the remaining applicants being their children.
On 14 May 2014, the applicants made a valid application for a Subclass 866 Protection (Class XA) visa (protection visa) with the Department of Immigration and Border Protection, now known as the Department of Immigration and Multicultural Affairs.
On 29 July 2015, the application was refused by a delegate of the first respondent (delegate) on the basis that the applicants did not meet the criteria for the grant of a protection visa.
On 26 August 2015, the applicants sought review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal). On 28 September 2018, the Tribunal affirmed the delegate’s decision.
The applicants have applied to this Court for judicial review of the Tribunal’s decision pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act). To obtain assistance, the applicant must satisfy the Court that the Tribunal has fallen into jurisdictional error.
BACKGROUND AND RELEVANT FACTS
The background and relevant facts of this matter is largely derived from the Minister’s written submissions and, unless otherwise indicated, are not in dispute.
The applicants last entered Australia on 27 June 2011 as holders of Subclass 976 Electronic Travel Authority (Visitor) (Class UD) visas.
On 26 September 2011, the first applicant applied for a Subclass 428 Religious Worker (Class TE). The other applicants were included as dependents in that visa application. However, on 18 September 2012, he withdrew that visa application.[1]
[1] Court Book (CB) 229 to 230, 302.
On 3 August 2012, the third applicant applied for a Subclass 572 Vocational Education and Training Sector (Class TU) visa. This application was refused by a delegate of the Minister on 14 September 2012. The applicants unsuccessfully sought merits and judicial review in relation to that decision, initially by the then Migration Review Tribunal and subsequently by the then Federal Circuit Court. On 6 November 2013, the third applicant made a request for Ministerial Intervention pursuant to s 351 of the Act and included the other applicants in her request. Her request was declined on 17 March 2014.[2]
[2] CB 302.
On 10 April 2014 and 2 May 2014, the applicants sought to make two protection visa applications.[3] These were found to be invalid as they were made on the incorrect form and did not specify any claims for protection.[4]
[3] CB 1 to 25; 33 to 57.
[4] CB 30 to 32; 76 to 78.
The protection visa application
On 14 May 2014, the first applicant submitted a valid application for a protection visa, in which the second, third, fourth, fifth and sixth applicants were included as members of his family unit.[5] Claims for protection were advanced by, and on behalf of, the second applicant who is the daughter of the first and third applicants.[6] The second applicant was thirteen years old when this protection visa application was made. It is this visa application that the decision under review concerns.
[5] CB 79 to 180.
[6] CB 79 to 103; 122 to 134.
On 7 July 2015, the first and third applicants attended a Departmental interview where they gave evidence on behalf of the second applicant in relation to her protection claims.[7]
[7] CB 231 to 232.
On 29 July 2015, the delegate refused to grant the second applicant a protection visa having found that she was not owed protection obligations as she was neither a refugee nor owed complementary protection. It followed that the other applicants were refused the grant of protection visas as they were not members of the family unit of a person to whom Australia owed protection obligations.[8]
[8] CB 223 to 238.
The review application
On 26 August 2015, the applicants sought review of the delegate’s decision with the Tribunal.[9] On 21 August 2018, the applicants lodged submissions and further evidence with the Tribunal,[10] claiming that they were owed protection under the Refugee Convention (Convention) because the second applicant was a member of the particular social group comprising students who have ‘dropped out of school [in Korea] due to being unable to adopt [sic] and adjust...to school in a proper manner’.[11]
[9] CB 239 to 247.
[10] CB 282 to 287.
[11] CB 283.
On 24 August 2018, the first and third applicants attended a hearing before the Tribunal, appearing on behalf of themselves and the other applicants with the assistance of their migration agent. Communication between the applicants and the Tribunal was facilitated during the hearing by a qualified interpreter in the Korean and English languages.[12] At hearing, the applicants tendered a news article into evidence.[13]
[12] CB 288 to290.
[13] CB 291 to 292.
On 6 September 2018, the applicants provided the Tribunal with post‑hearing submissions and a further news article.[14] In those submissions, the applicants claimed that they could not have applied for a protection visa any earlier than they did, and otherwise reiterated the second applicant’s claim that she was denied a ‘basic human right’ in South Korea, being the right to an education.[15]
[14] CB 293 to 298.
[15] CB 295.
On 28 September 2018, the Tribunal affirmed the delegate’s decision not to grant the applicants’ protection visas,[16] and on 2 October 2018 the applicants were notified of the Tribunal’s decision.[17]
[16] CB 301 to 310.
[17] CB 299 to 300.
Applicants’ claims for protection
The applicants’ claims for protection set out in their visa application are as follows:
(a)The second applicant has a learning disability, and attended a public school in South Korea where she was severely abused by her classmates and teacher. The first and third applicants did not report the teacher to the Department of Education because they feared their children enrolled in that school would be harmed.
(b)The second applicant was withdrawn from the school, and for the next two years, was homeschooled. She was diagnosed with childhood depression.
(c)After arriving in Australia, the second applicant started attending school and had built healthy relationships with friends and teachers.
(d)The second applicant was still recovering from her depression and her fear of teachers.
(e)The second applicant could not attend any school in South Korea as they could not cater to her learning disability, stating: ‘In the Korean education system you are either disabled or you are not but [the second applicant] is neither which makes it very difficult.’ The family would face hardship if returned to South Korea.[18]
[18] CB 95 to 97.
The second applicant submitted her own protection claims as part of the visa application, largely reiterating the claims articulated above:
(a)She left South Korea because she could not attend school there and was very afraid of school ‘and everyone in it.’ Whilst at school she experienced harm from abusive teachers and children. She was ‘told to kneel on hard cold concrete for all of the day most days for no real reason’ and was also hit, sometimes with a ‘hard book.’
(b)There was no one in South Korea who understood her.
(c)She would receive the same treatment if she returned to South Korea. The authorities could not help her because they were on the school’s side.[19]
[19] CB 126 to 129.
At the protection visa interview before the delegate, the first applicant stated that the second applicant had moved to two schools in South Korea, but neither school had met her needs. One of those schools was in a different suburb and town. If returned to South Korea, the second applicant’s parents could not afford to homeschool her. They were being culturally disadvantaged due to the second applicant’s condition, and there was a high suicide rate among school children in South Korea.[20]
[20] CB 231 to 232.
In an undated statement accompanying their review application to the Tribunal, it was further claimed that the applicants feared harm because of the second applicant’s political opinion. The second applicant could not live a normal life in South Korea because of her ‘unpopular ideas’ and neither could her family.[21] This claim was later withdrawn during the Tribunal hearing.
[21] CB 247.
Tribunal’s decision
The Tribunal accepted the applicants were citizens of South Korea,[22] who formed part of the same family unit.[23] The Tribunal confirmed that it gave no regard to the second applicant’s claimed political opinions in circumstances where this claim had been withdrawn orally at hearing.[24]
[22] CB 305 [24] to [25].
[23] CB 305 [26].
[24] CB 305 [27].
The Tribunal recorded in its decision that during the hearing it had raised country information with the first applicant that was inconsistent with the claim that the second applicant’s needs could not be met by any school in South Korea. In particular, it identified that South Korean legislation provided for free education and support for children with diagnosed special needs and that there were schools in South Korea which also catered to those needs.[25] The Tribunal set out the first applicant’s response, namely, that country information did not match the ‘real situation’ in South Korea.[26] Regarding the availability of schools in South Korea for children with special needs, the Tribunal recorded the first applicant’s belief that those schools were only for children with ‘serious disabilities’ and that his daughter did not fall within that category.[27]
[25] CB 306 to 307 [33]; [35].
[26] CB 306 [34].
[27] CB 306 [36].
The Tribunal also summarised the oral evidence of the third applicant at hearing, including, that she had tried to obtain a ‘disability grade’ for her daughter but had been unable to do so.[28] In any event, the third applicant thought her daughter’s condition had improved since being in Australia and believed that, if returned to South Korea, ‘it would be difficult for [her family] to get used to living there’.[29]
[28] CB 306 [37].
[29] CB 308 [39].
The Tribunal accepted that the second applicant had a learning disability and had attended a public school in South Korea for one semester, where she was bullied by her classmates and was not supported by her teachers. It accepted that, as a result, she had been withdrawn from that school, homeschooled by her parents, and was subsequently diagnosed with, and treated for childhood depression. The Tribunal also accepted that the first applicant was in debt due to the cost of this treatment, and found that he decided to come to Australia to earn money to rectify that debt and to otherwise provide for his children.[30]
[30] CB 309 [45] to [47].
Turning to the applicants’ migration history, the Tribunal accepted that the first and third applicants had not wanted to apply for protection but did so because their children were happy in school in Australia, the second applicant was feeling better, and they were impressed with the second applicant’s teachers and school. The Tribunal also acknowledged the applicants’ desire to stay in Australia and accepted that they did not want to return to South Korea.[31] It did not, however, accept that the second applicant feared everyone in her age group in South Korea or that there was no one in South Korea who understood her.[32]
[31] CB 309 [48].
[32] CB 309 [49].
The Tribunal accepted the applicant’s evidence that the second applicant was in Year 10 and would be finishing her schooling that year (being, in 2018). It accepted that evidence to be true, and noted that the second applicant’s ‘schooling would be complete in a few weeks and it will therefore not be necessary for her to attend school in South Korea.’ Accordingly, in circumstances where the second applicant’s schooling in South Korea was the sole basis for claiming protection, the Tribunal found the protection claims raised in relation to the second applicant’s schooling in South Korea to no longer be relevant.[33]
[33] CB 309 [49].
Having regard to the applicants’ claims individually and cumulatively, the Tribunal found that the applicants did not have a well‑founded fear of persecution for any Convention reason.[34] On the basis of the same factual findings, the Tribunal did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to South Korea, there was a real risk they would suffer significant harm for the purpose of the complementary protection criteria.[35]
[34] CB 309 to 310 [50] to [51].
[35] CB 310 [52] to [55].
Accordingly, the Tribunal found that the first and second applicants did not satisfy the ss 36(2)(a) or 36(2)(aa) criteria of the Act and, as a result, the remaining applicants were unable to satisfy the criteria under ss 36(2)(b) or (c) of the Act.
RELEVANT LEGISLATION
Section 36 of the Act relevantly provided:
36 Protection visas
(1) There is a class of visas to be known as protection visas.
Note: See also Subdivision AL.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
Section 91R of the Act relevantly provided:
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
Section 55 of the Evidence Act 1995 (Cth) (Evidence Act) relevantly provides:
55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
Section 135 of the Evidence Act relevantly provides:
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
PROCEEDINGS BEFORE THIS COURT
Originating application
The first applicant commenced the proceeding by way of an originating application filed on 24 October 2018 on the following two particularised grounds (reproduced without alteration):
Ground 1: The Second Respondent failed to apply to a relevant consideration & law of the applicants’ country of origin in making the decision:
Particulars
(1)The Second Respondent misconstrued or misunderstood by failing to judge that the Second Applicant will be finishing school this year.
(2)In considering assessing the Second Applicant’s schooling, the Second Respondent erroneously took the view that the Second Applicant’s schooling is no longer relevant to the Applicants claims.
Ground 2: The Second Respondent failed to explain correct laws of protection visa when a hearing was held.
Particulars
(1)In considering a definition of Article 1 of the Convention Article 1A(2), the Second Respondent narrowly limited a definition of persecution such as:
· a threat to the person’s life or liberty;
· significant physical harassment of the person.
The application was accompanied by an affidavit of the first applicant, attached to which was a copy of the Tribunal’s decision record.
Orders
On 15 November 2018, a Registrar of this Court made various orders by consent including that:
(a)Pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth), the first applicant is appointed as the litigation guardian of his children; the second, fifth and sixth applicants, who are minors.
(b)The first respondent file one hard copy and an electronic copy of a bundle of relevant documents (‘the Court Book’) and serve a hard copy of the Court Book on the applicant by 13 December 2018.
(c)The applicants have leave to file and serve any amended application giving complete particulars of each ground of review relied upon by 10 January 2019.
(d)The applicants must file and serve any affidavit containing additional evidence to be relied upon, including any transcript of a Tribunal hearing, by 10 January 2019.
(e)The Minister must file and serve any affidavit containing additional evidence to be relied upon, including any transcript of a Tribunal hearing, by 7 February 2019.
(f)Other than the bundle of relevant documents, all evidence relied upon by the parties is to be presented by way of affidavit and any transcript of a Tribunal hearing must be verified by way of affidavit.
(g)All documents in the proceeding must be filed at the Registry of this Court and served on the other parties.
(h)The matter be stood over for hearing on a date and time to be advised.
On 1 April 2019, the matter was docketed to another Judge of this Court who made further orders on 25 November 2019 including that:
(a)The applicant has leave to file and serve any amended application giving complete particulars of each ground of review on or before 13 January 2020.
(b)The applicant must file and serve any affidavit containing additional evidence to be relied upon, including any transcript of an interview or hearing, on or before 13 February 2020.
(c)The Minister must file and serve any affidavit containing additional evidence to be relied upon in answer on or before 10 February 2020.
(d)Other than the bundle of relevant documents, all evidence relied upon by the parties is to be presented by way of affidavit and any transcript of an interview or hearing must be verified by way of affidavit.
(e)The applicant file and serve written submissions no longer than 10 pages and any list of authorities at least 14 days before the hearing.
(f)The Minister file and serve written submissions no longer than 10 pages and any list of authorities at least 7 days before the hearing.
(g)The matter be fixed for a final hearing at 2pm on 22 July 2020 before Judge Humphreys.
On 28 February 2024, the matter was listed for a callover with a Registrar of this Court on 13 March 2024. During that callover, the Registrar made further orders including that:
(a)The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.
(b)The application be listed for final hearing before a Judge on a date to be fixed.
(c)The applicants file and serve written submissions and any amended application by 10 April 2024.
(d)The first respondent file and serve written submissions by 17 April 2024.
Hearing
On 8 August 2024, the matter was docketed to me and listed for final hearing on 28 August 2024.
At hearing before me on 28 August 2024, the applicants were unrepresented, with the first applicant appearing before the Court with assistance of an interpreter in the Korean and English languages. Mr Tim Reilly appeared for the Minister.
The Court Book was tendered by the Minister and received by the Court as Exhibit 1R.
Applicant’s request to tender new evidence
The first applicant sought to tender a two-page document which he claimed contained a translation prepared by a qualified translator and interpreter of a portion of the Tribunal hearing (document). He further claimed that he had lodged the document with ‘the Federal Court’ in 2019 and queried whether it was before the Court. After further inquiry on my part, the first applicant was unable to provide any evidence of the document having been filed or otherwise lodged with the Court. The Court also has no record of having ever received the document.
Upon my inspection of this document, I observed that it was stamped with what purported to be the seal of a National Association of Accredited Translators and Interpreters (NAATI) qualified translator and interpreter. I confirmed with the first applicant that the document was not contained in the Court Book, and there was no record of the Court having received it or him having filed and served it in compliance with orders made on 15 November 2018 and 25 November 2019. Asked why the document had not been properly filed and served in accordance with these orders, the first applicant was unable to proffer an explanation apart from an apology for his purported lack of knowledge of the Court’s processes.
Admissibility of new evidence
By way of assessing the document’s admissibility at this late stage of the proceedings, I reviewed the document and afforded Counsel for the Minister the same courtesy. Asked to explain the relevance of the document, the first applicant made the following submissions:
The first page is the one that Member understood, and the second page is how it was interpreted. Member questioned, “Did she finish school this year?” But the interpreter said that she finished Year 10 this year.
By way of response, Counsel for the Minister argued against the admission of the document in the following terms:
The difficulty, your Honour, is that the orders in this Court made on 15 November 2018 were that the applicant file a transcript or any additional evidence by 10 January 2019 and that all the evidence relied upon the parties as presented by way of affidavit, including the transcript. So, I’m sorry, the applicant can’t just hand up a piece of paper not verified by affidavit, so I do have a problem with your Honour receiving it. It’s not in accordance with the orders that the Court has made, with which the applicant has not complied.
…
The applicant was ordered to provide a transcript and that any evidence must be by way of affidavit. The pieces of paper that he has handed up are inadmissible. They are not provided by way of affidavit, as the Court’s orders required. Those orders were made in 2018, so the applicant has had more than five years to comply with them, and has not.
Having perused the document and considered these oral submissions, I refused to admit the document into evidence. At the outset, I note Counsel for the Minister’s point and further observe that another Judge of this Court made orders on 25 November 2019, set out above at [37], that the applicant file and serve any affidavit containing additional evidence to be relied upon, including any transcript of hearing, on or before 13 February 2020, and that any transcript of hearing be verified by way of affidavit. While I acknowledge that many unrepresented applicants lack the knowledge required to participate effectively in proceedings before this Court, the first applicant did not proffer any explanation of their inability to file the document in compliance with the Court’s orders apart from an apology about his lack of knowledge of court procedure. It cannot be ignored that the applicants have had nearly six years to avail themselves of such knowledge, having commenced these proceedings in 2018.
That said, the failure to provide an explanation for non-compliance with the orders of this Court is somewhat tangential to my ruling to exclude the document. Putting aside concerns arising out of the fact there is no evidence on affidavit which could satisfy me as to the document’s origin, and the basis upon which it had been sought from and produced by the purported NAATI qualified translator and interpreter, I am of the view that the document is of limited probative value. The document contained only a transcript of a short exchange between the Member and the first applicant during one part of a lengthy Tribunal hearing. The document appeared to present only part of the relevant picture in relation to the entirety of the oral evidence that was before the Tribunal as to the second applicant’s schooling, thereby possibly distorting the true situation.[36] In my view, it was necessary for the substance of that exchange, within the entirety of the hearing, to be reproduced so I could properly consider it in context.[37] Accordingly, I exercised my discretion to exclude the document as there was a real danger that the document could be given much more significance of fact than it deserved.[38] Further, the document’s probative value is substantially outweighed by the danger of its ability to mislead or confuse. The document had the potential to confuse or mislead on the issue of whether the Tribunal had indeed misunderstood the entirety of the oral evidence given at hearing as to when the second applicant’s schooling was scheduled to end.
[36] Hughes Aircraft Systems International v Airservices Australia (No 3) [1997] FCA 1537.
[37] La Trobe Capital & Mortgage Corp Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; 273 ALR 774; [2011] FCAFC 4.
[38] Reading v ABC [2003] NSWSC 716 at [32]-[33].
For these reasons, I was satisfied that while the document may well meet the statutory test prescribed by s 55 of the Evidence Act, there was a danger that the document might be misleading or confusing, and this outweighs its probative value. I therefore excluded the document pursuant to s 135 of the Evidence Act.
CONSIDERATION
At the hearing before me, the applicants pressed each of the two grounds of review contained in their originating application. For the purposes of my consideration, I address the parties’ submissions in relation to each ground below.
Ground 1
As set out above at [34], by ground 1, the applicants contend that the Tribunal ‘failed to apply to a relevant consideration and law of the applicants’ country of origin in making the decision’. In the particulars to this ground, the applicants contend that the Tribunal ‘misconstrued or misunderstood by failing to judge that the Second Applicant will be finishing school this year’, and that it ‘erroneously took the view that the Second Applicant’s schooling is no longer relevant to the Applicants’ claims’.
The parties’ submissions
By way of written submissions, the Minister maintained that this ground could not be made out because it was apparent on the material before the Court that the applicants’ claims related to the fear of harm arising out of the second applicant’s school attendance in South Korea such that:
(a)she was a member of a social group comprised of students who have ‘dropped out of school [in Korea] due to being unable to adopt [sic] and adjust...to school in a proper manner’;
(b)she feared returning to school in South Korea and being subject to the same poor treatment she had previously received from students and teachers; and
(c)the authorities could not help her, and her parents claimed that as a result of the second applicant’s experiences, her whole family would experience difficulty living in South Korea.[39]
[39] CB 9 to 97; 126; 231 to 232; 308.
Based upon the first applicant’s oral evidence to the Tribunal, which it recorded as including that the second applicant was presently enrolled in Year 10 and that she would finish school ‘in a few weeks’ within that year (2018), it was open for the Tribunal to find that it ‘would therefore not be necessary for her to attend school in South Korea’. Further, having made this finding and insofar as the applicants claimed they would experience difficulties as a result of the second applicant attending school in South Korea, it was open to the Tribunal to conclude that the applicants’ claimed difficulties arising in relation to the second applicant’s schooling were no longer relevant.
At the hearing before me, the first applicant argued that due to interpreter error during the Tribunal hearing, the Tribunal had misunderstood his oral evidence. He claimed that the Tribunal had misunderstood his evidence, where he had told the Tribunal that the second applicant was finishing Year 10 in 2018, and not finishing her schooling that year. The applicant attributed this error to deficiencies in interpretation, claiming that this was evident within the document he had sought to tender earlier during the hearing. He added that since the Tribunal hearing his daughter had completed Year 12 in Australia, thereafter, completing further studies in English with private tutors and at TAFE and was currently seeking to be admitted into a study program at the National Art School in 2025. Further, the first applicant clarified the scope of ground 1 by stating that the Tribunal had not failed to take into account any particular, or otherwise applicable, Korean law when reaching its decision.
By way of response, and in the interests of fairness, Counsel for the Minister addressed the first applicant’s oral submission about the possible error in the Tribunal’s understanding of his oral evidence at hearing, notwithstanding that this evidence had not been provided by way of affidavit and did not arise on the evidence before the Court. The Minister raised the following two arguments:
(1)Even if the Tribunal had misunderstood the first applicant’s evidence as to when the second applicant’s schooling would end, this would not have affected the outcome of the Tribunal’s decision because there was nothing before the Tribunal to indicate that it would be necessary for the second applicant to attend school in South Korea. Further, the Tribunal’s reasoning in relation to the absence of a requirement for the second applicant to attend school in South Korea in the future was also based upon its understanding of the second applicant’s circumstances outlined elsewhere in its decision including its observations that she was 17 and a half years of age at the date of the Tribunal’s decision,[40] and that her parents had previously removed her from school in South Korea.[41]
(2)Even if the Court were to form a view that the Tribunal had erred and that this error was material, discretionary relief should not be granted because no useful result could ensue as the outcome would be the same. In this regard, the Court’s attention was drawn to SZYBR & Anor v Minister for Immigration and Citizenship & Anor [2007] HCA 26 (SZYBR) at [27]-[29] as an example where no useful result could ensue from the grant of relief desired by the appellants, even where they had been denied procedural fairness on the basis contended, as their claims in that case still lacked the requisite Convention nexus. It was then argued that, in the present case, if the applicants’ claims about the second applicant suffering harm in the South Korean school context were to be reheard by the Tribunal, they would be doomed to fail because the second applicant is now 23 years old and no longer of an age where she would be required to attend school in South Korea.
[40] CB 309 [45].
[41] CB 306 [29].
By way of reply to the Minister’s oral submissions, the first applicant accepted that the second applicant was now 23 years of age but reiterated his concern that there was no school in South Korea to receive her and that this would result in her ‘staying at home and becoming a loner’.
Having considered the parties’ submissions in relation to this ground, I propose to examine this ground based upon the admissible evidence and then, in the interests of fairness, further consider it on the basis that there had been an interpretation error at the Tribunal hearing as contended by the applicants.
Consideration based upon the admissible evidence
Based upon my consideration of the admissible evidence, I am unpersuaded there was jurisdictional error. The admissible evidence does not support the applicants’ contention that the Tribunal misunderstood or misconstrued the first applicant’s evidence at hearing when reaching its finding that the second applicant would complete her schooling at the end of 2018. Rather, the Tribunal’s reasons clearly indicate that it engaged with the evidentiary material in support of the applicants’ claims which was entirely focussed upon the harm that had been faced and would be faced by the second applicant in the school system in South Korea. Notably, there was no evidence before the Tribunal indicating that the fear of harm arose in contexts outside primary and secondary education school settings in South Korea.
Accordingly, I accept the Minister’s submission and find that it was open for the Tribunal, on the admissible evidence, to find that it ‘would therefore not be necessary for her to attend school in South Korea.’ I further accept that having made that finding, insofar as the applicants claimed they would experience difficulties as a result of the second applicant attending school in South Korea, it was also open to the Tribunal to conclude that the applicants’ claimed difficulties arising in relation to the second applicant’s schooling were ‘no longer relevant.’ On this basis, jurisdictional error has not been established.
Further consideration
That said, on the basis that the document ought to have been admitted in this hearing, I now consider the possibility that an error was made by the interpreter during the Tribunal hearing which resulted in the Tribunal making an erroneous finding that the second applicant’s schooling was due to end in 2018. If an interpretation error of this kind had occurred, it would have given rise to a breach of procedural fairness by way of depriving the first applicant a real and fair opportunity to put what he wanted to put, and to understand what was being said to him, during the Tribunal hearing.[42] The error would have been significant as it was material to the conclusions reached by the Tribunal in relation to whether the second applicant was to face harm in South Korea in a school setting should she return there. [43]
[42] SZRMQ vMinister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142.
[43] Applicant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [22]; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; 58 ALD 231; [1999] FCA 507 at [45]; SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [45]-[64].
At [49] of its decision, the Tribunal concluded that it was no longer relevant to assess the claims relating to the second applicant’s fear of harm in a South Korean school context on the basis of its finding that it would not be necessary for her to attend school in South Korea because she was due to finish school in 2018. The Tribunal gave no other basis to support its conclusion that it was ‘no longer necessary’ for the second applicant to attend school in South Korea. While I note the Tribunal accepted that the second applicant was 17 and a half years of age at the time it made its decision,[44] and that her parents had withdrawn her from primary school in South Korea when she was a child,[45] there is nothing in the Tribunal’s reasons to indicate that these two findings, taken either individually or cumulatively, were relied upon by the Tribunal when it determined that ‘it was no longer necessary for her to attend school in South Korea.’ I therefore reject the Minister’s submissions in that regard.
[44] CB 309 [45].
[45] CB 306 [29].
Further, had the interpretation error not been made, I am satisfied that there is a realistic possibility that the decision the Tribunal made could have been different. While the Tribunal had recorded the first and third applicant’s evidence in relation to their daughter’s experiences in both primary and secondary school contexts, as well as the first applicant’s responses to country information relating to the availability of special schools in South Korea, it did not make any specific findings in relation to whether it was possible (as opposed to not necessary) for their daughter to attend her final years of secondary school in South Korea after 2018 and if so, whether she would face harm in such a context. In the absence of such findings, and on a fair reading of the decision as a whole, I am satisfied that there is a realistic possibility that a different decision could have been made had the interpretation error not occurred. The error foreclosed the Tribunal’s fulsome consideration of the question whether the second applicant would complete secondary school in South Korea and, if so, the risk of harm she would likely face in that context. In the absence of other Tribunal findings that lead me to a conclusion to that path of inquiry, I am unable to assume or otherwise reason how the Tribunal would have reached its conclusion on this issue. My unwillingness to assume the function of the Tribunal in this case is grounded in the High Court’s recent guidance in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12, at [29] (footnotes reproduced):
A reviewing court does not engage in a review of the merits of decision,[46] reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.[47]
[46] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36, 38; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at 445 [48], 460 [95]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at 528 [51].
[47] See, e.g., FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754 at 768 [67]; 310 ALR 1 at 18; MZAPC (2021) 273 CLR 506 at 549 [114]. See also, e.g., Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216; (2014) 67 MVR 601 at 610 [47]; Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; (2021) 288 FCR 565 at 595 [130].
Nevertheless, in the event that jurisdictional error was found to lie on this basis, I am of the view that discretionary relief should not be granted because no useful result could ensue as the outcome would be the same. As stated above, the applicants’ claims stem from fear of harm the second applicant would experience in school settings in South Korea. There was no evidence before the Tribunal to indicate it was required to consider the prospect of harm in other contexts beyond primary and secondary school settings. I agree with the Minister’s characterisation of the futility in granting relief in this case because if the matter were to be reheard by the Tribunal, the applicants’ claims would be doomed to fail because the second applicant has completed secondary school in Australia and is now 23 years of age[48] and no longer of an age where she would attend primary or secondary school in South Korea.
[48] CB 34.
For the above reasons, ground 1 fails.
Ground 2
As set out above at [34], by ground 2, the applicants allege that the Tribunal ‘failed to explain correct laws of protection visa when a hearing was held’ and that it narrowly construed what constitutes serious harm for the purposes of Article 1A(2) of the Refugee Convention, by limiting it to threats to life or liberty, and significant physical harassment.
By way of written submissions, the Minister submits that, in the absence of better particulars, the basis for the applicants’ contention is unclear. Nonetheless, the Minister submitted that:
(a)the applicants were represented before the Tribunal, and there was no obligation on the Tribunal to provide advice to them during the hearing on the legislative provisions relevant to a protection visa;
(b)there is no evidence before the Court to suggest that the Tribunal misled the applicants during the hearing as to the provisions; and
(c)the Tribunal correctly set out and applied the relevant law in its reasons, and on a fair reading of those reasons, no misunderstanding or misapplication of s 36(2) of the Act is apparent.
At hearing, the first applicant sought to particularise this ground by way of explaining a particular interaction at hearing which underpinned the contentions raised by this ground:
I spoke about God-given human rights of the American Declaration of Independence. I spoke - the basic rights for human beings is life, liberty and pursuit of happiness. And this is unalienable rights. But the member – AAT member said, ‘That is American story, but here is Australia.’ But I understand the God-given human rights is the root of UN Universal Declaration of Human Rights in 1948. And I also understand Australian safety visa is also related to that.
After further clarification, the first applicant confirmed that by this ground he contended that during the hearing the Member had failed to properly explain, and possibly misunderstood, the relevant laws relating to protection visas and the meaning of serious harm because, in his view, protection visas should be granted where a person’s unalienable rights are at risk of violation.
By way of oral submissions, Counsel for the Minister contended that there was nothing before the Court to indicate any misunderstanding by the Tribunal of the expression ‘serious harm’ within the meaning of s 91R of the Act, further noting for the applicants’ benefit that ‘serious harm’ is defined in the Act in a manner that does not involve expressions used in the United States Declaration of Independence, such as ‘life, liberty and the pursuit of happiness’, and that even if there had been a discussion of this at hearing, the Tribunal was right to point out to that this was not the applicable test. When pressed by the Court to point to where in the Tribunal’s reasons consideration was given to whether the second applicant faced serious harm of a type prescribed in s 91R(2)(c)-(f) of the Act, Counsel for the Minister reiterated that no such consideration was necessary as the basis of the Tribunal’s decision was that the second applicant would not face serious harm as she would no longer be required to attend school in South Korea.
Having had the opportunity to hear the first applicant’s oral submissions, I am of the view that this ground does not disclose error. I am persuaded by the Minister’s written and oral submissions in relation to this ground. The Tribunal’s task when assessing whether protection obligations were owed to the applicants in this case required, among other things, a consideration of the definition of serious harm within s 91R of the Act. There is nothing to indicate that the Tribunal had misunderstood what constitutes persecution for s 91R purposes, including the meaning of serious harm, in the manner contended by the applicants. While the definition of serious harm is non-exhaustive, the assessment is necessarily focussed on instances of harm to the person and these may, but not necessarily always, involve some consideration of whether a person’s inalienable rights have been, are being or will be threatened or violated. There is nothing in the Tribunal’s reasons, or in other evidence before the Court, indicating that the Tribunal had misunderstood or misapplied the relevant legal test in this case. On this basis, jurisdictional error is not made out.
CONCLUSION
For the above reasons, the application before this Court is dismissed.
I will hear the parties in relation to costs.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 9 September 2024
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