FRA17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 999
Federal Circuit and Family Court of Australia
(DIVISION 2)
FRA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 999
File number(s): SYG 4043 of 2017 Judgment of: JUDGE LAING Date of judgment: 1 December 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a protection visa – whether the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) – application allowed Legislation: Migration Act 1958 (Cth) ss 424A, 424AA, 425 Cases cited: Dinh v Minister for Immigration & Anor [2019] FCCA 1528
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197; (2021) 389 ALR 431
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 18 October 2022 Counsel for the Applicant: Mr R Chia, of Counsel, appeared in-person on behalf of the applicant. Counsel for the First Respondent: Mr G Johnson, of Counsel, appeared in-person on behalf of the first respondent Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 4043 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FRA17
First Applicant
FRB17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
1 December 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue, quashing the decision of the second respondent dated 29 September 2017 in case number 1512062.
2.A writ of mandamus issue directing the second respondent to determine the application for review according to law.
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 LAING
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicants Protection (Class XA) (Subclass 866) visas (protection visas).
background
The first applicant when these proceedings were first commenced, FQZ17 (Husband) was the husband of FRA17 (Wife) and the father of FRB17 (Son). I have been informed that the Husband passed away in 2018. The Wife and Son, who are citizens of Indonesia, have continued as applicants in these proceedings. I will refer to the Husband, Wife and Son collectively in this decision as the “applicants”, although the Husband has been unable to continue as a party to the proceedings.
The Husband initially arrived in Australia in 1999 as the holder of a visitor visa. He lodged a protection visa application on 17 September 1999 (first protection visa application). On 21 October 1999, the first protection visa application was refused by a delegate of the first respondent. The Refugee Review Tribunal (RRT) (as it was) found on 22 May 2000 that it had no jurisdiction to review the delegate’s decision. The Husband subsequently departed Australia.
The Wife and Son arrived in Australia in 2000 on visitor visas, before applying for protection visas. A delegate refused to grant the visas, with that decision being affirmed by the RRT in 2001. The Wife and Son departed Australia that year, after making an unsuccessful request for Ministerial Intervention.
The applicants returned to Australia in 2010 after being granted student visas. They last departed and returned to Australia in 2014. The family applied for the protection visas that are the subject of the decision under review on 13 March 2015.
On 31 July 2015, the Delegate refused to grant the protection visas.
The applicants applied to the Tribunal for merits review of the Delegate’s decision on 3 September 2015.
On 29 September 2017, the Tribunal affirmed the Delegate’s decision.
the tribunal’s decision
The Tribunal accepted that:
(a)the applicants were Indonesian nationals and that their identity was as claimed (at [38]);
(b)the Husband and Wife were married on a date in the 1990s and had been in an ongoing relationship since (at [39]); and
(c)the applicants were members of the same family unit (at [39]).
The Tribunal stated in relation to the credibility of the Husband and Wife:
43.The Tribunal had a number of concerns about the [Husband] and [Wife]’s (hereafter together referred to as the “adult applicants”) inconsistent, changing and not credible evidence as to past events, and what they fear upon return to Indonesia. The Tribunal did not find these applicants to be credible, truthful, or reliable witnesses in relation to matters central to, and related to, their claims. The Tribunal has taken into account its concerns relating to each particular applicant in making separate and independent findings as to each applicant's credibility; although the concerns are set out below in a holistic manner. Further, the Tribunal notes that any one of the concerns below may not have caused the Tribunal to question the adult applicants’ overall credibility, however when looking at the evidence cumulatively, the Tribunal's concerns with the adult applicants’ credibility are significant.
The Tribunal raised a number of concerns in relation to the credibility of the Husband and Wife’s evidence at [40]-[88]. Those concerns included numerous inconsistencies and difficulties in the evidence that had been given regarding the couple’s first protection visa applications and the Husband’s claimed work in Indonesia, as well as the couple’s failure to disclose past visa applications, other changing claims and limited corroborative evidence. The Tribunal observed that it had put certain of its concerns to the applicants pursuant to ss 424A and 424AA of the Migration Act 1958 (Cth) (Act). It concluded at [88]:
88.Considered cumulatively, the concerns the Tribunal holds about the [Husband]’s and [Wife]’s credibility, as discussed above, lead the Tribunal to conclude that they are not witnesses of truth and that they have a history of exaggerating and fabricating accounts of events in order to obtain visa outcomes, and that they have made up their claimed fears upon which they have based their protection claims.
After considering the issue of credibility, the Tribunal then set out its findings on the applicants’ claims. It did not accept:
(a)that the applicants or any family members had in the past been adversely affected as a result of economic crises, riots, corruption, religion or ethnicity (at [89]).
(b)that the first protection visa applications in 1999/2000 were lodged for genuine reasons. The Tribunal found that the applicants did not have any fear of harm, and had not experienced harm. The Tribunal was of the view that applicants were hoping to travel to Australia and claim protection in order to obtain a visa outcome of remaining indefinitely in Australia (at [90]).
(c)that the applicants suffered any harm in the period between 2001 and 2010 when they returned to Indonesia (at [90]). In this regard, the Tribunal stated (at [91]):
91.In particular, the Tribunal does not accept that there was any loss of money to anyone (including the [Wife]’s employer bank clients or the [Husband]’s mother); it does not accept that any clients or General Manager or owner/director considered that the applicants were in any way responsible for or owed money to anyone nor does it accept that they considered themselves responsible for and owing money to anyone nor that they offered to pay any losses: it does not accept that there were threats of harm, by way of phone calls or SMS, and it does not accept that they had any reason relating to a fear of harm to leave Indonesia in 2010 other than because they wanted to come to live in Australia.
In result, the Tribunal found:
92.… in making the 2010 offshore student visa applications, the [Husband and Wife] misled the Australian authorities by failing to disclose their past visits to Australia including their failed protection visa applications. When this was put to them pursuant to s.424A of the Act, they did not deny this. The Tribunal considers that they did not have any fear of harm in 2010, nor have they had any genuine fear that they face a chance or risk of harm in Indonesia since that time. The Tribunal considers that they are prepared to make up claims in order to obtain a visa outcome, namely to remain in Australia.
93.On the basis of the adverse credibility findings, the Tribunal does not accept that the applicants faced any harm or felt any fear or received any threats when they returned to Indonesia in [2014] for their daughter's wedding. The Tribunal finds that they made up such claims to support a protection visa. The Tribunal does not accept any of the claims of past harm made by the applicants. It does not accept that the applicants have ever faced harm or been fearful in Indonesia. The Tribunal rejects all such claims and all claims flowing from these claims.
Further addressing the applicants’ claims for protection, the Tribunal made the following findings:
(a)Fear of harm on return to Indonesia: The Tribunal’s findings in relation to the applicants’ claims about previous experiences of harm in Indonesia, and fear of harm in the future if returned to Indonesia, were set out at [94]:
94.The Tribunal has not accepted the claims of past harm or threats and has found that the applicants have not experienced past harm or threats when residing in Indonesia (before 200/2001 and from 2001 to 2010 and in 2014). The Tribunal is not satisfied that the applicants experienced corruption nor that they have any genuine fear of experiencing corruption in the future. The applicants have managed to work, buy a home, raise children, afford to come to Australia on two separate occasions with children, including accumulating funds for a student visa in 2010. The Tribunal is not satisfied that the applicants have been adversely affected for any reason in the past in Indonesia, including after their first return after having failed in their separate first protection visa applications. The Tribunal also notes that, after their travel to Australia in 2010, they were prepared to return, and did return, to Indonesia in June 2014 for the marriage of their daughter. The applicants did not provide any country information to the Tribunal which would support that they face a real chance of serious harm or a real risk of significant harm for any reason. The Tribunal has considered the DFAT Report and country conditions, as put to the applicants at hearing.
(b)Financial position and income: The Tribunal considered that the applicants had not been truthful about their financial position in Indonesia, or the claim that they had sold all their assets before coming to Australia. The Tribunal considered that the Husband and Wife had been working in Australia and that they had held professional jobs in Indonesia. The Tribunal was “not satisfied that there is a real chance or a real risk that the applicants will not be able to find work again leading to serious harm or significant harm or an inability to support themselves and [their Son]” (at [95]).
(c)Christianity, Chinese ethnicity, and general concerns: The Tribunal reasoned as follows in relation to these claims:
96.The Tribunal is prepared to accept that the applicants are Christians, and that the second applicant and third applicants are of Chinese ethnicity. The Tribunal has found that the applicants have not suffered any harm or fear of harm in the past, and it does not accept that they have any genuine fear of harm on the basis of ethnicity, religion, or their relationship, in the reasonably foreseeable future. The Tribunal notes that the other child of the family (now an adult who is married) remains in Jakarta, and it has not been suggested that she has faced serious or significant harm on the basis of her religion or ethnicity. The Tribunal had concerns about the adult applicants' credibility concerning where they lived in Indonesia. Their protection visa application forms referred to living in Jakarta, and the Tribunal finds that they will return to Jakarta and live in a residence there.
97.The Tribunal notes the [Wife]’s claim that she felt worried about worshipping as a Christian in Indonesia between 2001 and 2010. The Tribunal was concerned because not only was this not a claim made in her current protection visa application form, in her evidence to the delegate at interview, she said that she was not making any claims of her own, instead she is relying upon her husband's claims. The Tribunal put to the [Wife] that she had had plenty of opportunity to make specific claims of past harm or future harm on the basis of her religion. In response she said that she had not understood. The Tribunal is not persuaded by her explanation, given it is her second protection visa application and the opportunities she has had to present specific claims. On the basis of the adverse credibility finding and the lack of reference to this earlier, the Tribunal does not accept that the [Wife] felt worried about worshipping as a Christian in Indonesia between 2001 and 2010 as claimed at hearing. Similarly, the Tribunal was concerned with the [Husband]’s changing evidence about whether or not he was in a church which had been attacked; the Tribunal does not accept this claim…
98.In her evidence at hearing, the [Wife] said that she has concerns generally about the situation for her children in Indonesia, more than for herself and her husband, as the children have a longer future. The Tribunal is not persuaded that there is evidence that the [Son] faces a real chance of serious harm or a real risk of significant harm for any reason. Further, although the adult daughter is not an applicant before the Tribunal, there is no suggestion that she has faced or does face a real chance of serious harm or a real risk of significant harm in Indonesia.
99.Similarly, the [Wife] told the Tribunal that when asked about any difficulties in Indonesia between 2001 and 2010, she said that she didn’t feel safe when she was walking… the Tribunal is not satisfied that this is a genuine fear.
100.… Taking into account the country information as referred to in the DFAT Report, as well as the findings relating to these particular applicants (as to their age, that they are educated and experienced and resourceful, they will return to Jakarta and reside there and attend church again), the Tribunal is not satisfied that any of the applicants face a situation which amounts to a real chance of serious harm or a real risk of significant harm for reason of the security situation generally, their gender, age, religion, ethnicity, employment conditions, finances, or any other reason.
(d)Claims in relation to the third applicant: Whilst the Tribunal accepted that the Son did not know all words in Indonesian, it did “not consider that his claimed inability to know all words in Indonesian means that he faces a real chance of serious harm or real risk of significant harm in Indonesia” (at [101]).
Having regard to the above, the Tribunal was not satisfied that the applicants faced a real chance of relevant harm on any of the bases claimed, singularly or cumulatively. The Tribunal concluded that the applicants could not meet the criteria for the visas and affirmed the Delegate’s decision (at [102]-[111]).
PROCEEDINGS BEFORE THIS COURT
The applicants commenced the current proceedings by application filed on 27 December 2017. By the time of the hearing, the Wife and Son relied upon the following grounds:
1.The Tribunal materially failed to comply with the mandatory requirements of section 424A of the Act
Particulars
The Tribunal failed to “give” the [Husband] the following information in accordance with either section 424A or 424AA of the Act:
a.information provided by the [Husband] in his first protection visa application that since 2001 he had no problems in Indonesia on account of his Christianity;
b.information provided by the [Wife] orally to the delegate that she had not received any threats in Indonesia; and/or
c.oral evidence of the [Wife] at the Tribunal hearing.
2.Further or in the alternative, the Tribunal failed to “invite” the applicants to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Ground 1
Ground 1 contended that the Tribunal failed to comply with s 424A(1) of the Act, which provided as follows:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
It is well settled that “information”, for the purposes of s 424A of the Act, concerns evidentiary material or documentation and not the Tribunal’s “subjective appraisals” such as those regarding “the existence of doubts, inconsistencies or the absence of evidence”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (SZBYR) at [18]. In order to enliven s 424A, “information” must contain in its “terms a rejection, denial or undermining of the [applicant’s] claims” to be owed protection obligations: SZBYR at [18] and Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197; (2021) 389 ALR 431 at [19]-[28].
At the hearing before the Court, Mr Johnson for the Minister conceded that a copy of the Delegate’s decision record had not been provided by the applicants to the Tribunal. This was notwithstanding references in the Tribunal’s decision indicating the Delegate’s decision record had been so provided. Those references were conceded to be incorrect. The exception in s 424A(3)(b) of the Act was therefore not enlivened.
However, Mr Johnson contended that none of the material relied upon in respect of ground 1 was capable of enlivening s 424A. Mr Johnson contended that the material relied upon was not “in [its] terms a rejection, denial or undermining” of the applicants’ claims that the Tribunal considered “would be the reason, or a part of the reason, for affirming the decision”. Rather, Mr Johnson submitted that the Tribunal’s concerns regarding the matters relied upon by the applicants focussed upon inconsistencies in the evidence, rather than the capacity for the material to undermine the applicants’ claims on its terms.
I accept this argument in relation to the material relied upon in particulars (b) and (c).
Particular (b) relied upon the Wife’s evidence to the Delegate that she had not personally received threats in Indonesia. Particular (c) concerned the Wife’s initial oral evidence to the Tribunal that the couple did not have debts and that she did not know whether anyone wanted money from her Husband.
The Tribunal purportedly invoked the procedure under s 424AA of the Act in respect of both matters. I accept Mr Chia’s submissions as to why the manner in which the Tribunal did so was problematic, having regard to SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 at [55]-[56]. In any event, the claim that was ultimately advanced in this regard by the Husband (transcript (T) 63.7) was potentially consistent with, and was not necessarily undermined by, the Wife’s evidence (on its terms) that she was not personally threatened and had not known about the debts or threats. Whilst the Tribunal took issue with the inconsistent evidence that had been provided in this regard at various iterations by the couple, I am not persuaded that the material relied upon under particulars (b) or (c) contained, on its terms, a “rejection, denial or undermining” of the applicants’ ultimate claims to meet the criteria for a protection visa.
Particular (a) is in a different category. In written submissions and at the hearing of this matter, Mr Chia clarified that the material relied upon under this particular was provided by the Husband to the Delegate as oral evidence during interview.
As the Tribunal recognised at [32], [76] and [97]-[100], both the Husband and Wife had made claims to face harm in Indonesia on account of their Christian religion. The Tribunal considered the claims that were expressly made in this regard, and also considered more generally against country information whether the applicants faced a real chance of relevant harm on account of their religion in Indonesia.
I accept Mr Johnson’s submission at hearing that at [76]-[84], the Tribunal was concerned by the changing or inconsistent nature of the evidence that had been given by the Husband in this regard. However, I accept Mr Chia’s submission that the Husband’s oral evidence to the Delegate that he had no problems on account of his Christianity in Indonesia since 2001 additionally, on its terms, undermined both the Husband and the Wife’s claims to be at risk in Indonesia on account of their Christian religion. The Tribunal relied upon that evidence (inter alia) at [76] of its decision. I accept Mr Chia’s contention (further developed at hearing) that it was information that the Tribunal was required to put to the Husband, and to the Wife, pursuant to s 424A of the Act. The Tribunal did not do so. Whilst it may be that there was not a strong prospect of the outcome on review being different had the Tribunal utilised the procedure in this way, I accept that this was possible: see Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 at [33].
It follows that I accept that ground 1 ought to succeed.
Ground 2
Given my findings on ground 1, it is not strictly necessary to determine ground 2. However, for completeness, I note that I would have also been persuaded that relevant error had been demonstrated under this ground.
As was found in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 at [36], unless an applicant is told otherwise by the Tribunal, they “would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise” for the purposes of s 425 of the Act, which was as follows:
Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The entitlement to this assumption may be displaced through (inter alia) an applicant themselves putting new material into issue, such as by raising new claims and evidence. In such circumstances, an applicant may not be entitled to expect that such new material would be accepted. The Tribunal would not necessarily be required to raise that it may not: see Dinh v Minister for Immigration & Anor [2019] FCCA 1528 at [35] and the cases cited therein. In this regard, Mr Johnson observed that the Wife had generally raised fears regarding her children’s future in Indonesia to the Tribunal (at T 47). The Tribunal’s consideration of the daughter’s situation in Indonesia was, it was submitted, responsive to that claim.
This may be so, but what the Wife had put into issue before the Tribunal were her general concerns for her children’s future situation. Whilst this was capable of being informed by whether anything had happened to her adult daughter living in Indonesia in the past, so too were other claims that were before the Tribunal.
The Delegate referred to the claims that had previously been raised by the Husband and Wife regarding ethnicity and religion. These do not appear to have been determined, on the basis of an understanding that they were not pressed. Notably, the Delegate did not identify the adult daughter in Indonesia’s previous experiences as an issue capable of undermining those protection claims.
I accept that the material before the Tribunal differed in a number of respects from the material before the Delegate. However, on balance, I do not accept that those differences were sufficient to identify to the applicants that the adult daughter’s historical experiences in Indonesia represented an issue that may count against their claims based upon religion and/or ethnicity. Had this issue been identified, then it is possible that the applicants may have provided further evidence regarding the daughter’s experiences, or the manner in which her situation differed from their own. Whilst there may not have been strong prospects of the outcome being different had this occurred, I accept that this was possible.
It follows that I accept ground 2 was additionally capable of establishing jurisdictional error.
CONCLUSION
As jurisdictional error has been demonstrated, the application before this Court succeeds.
I will hear the parties in relation to costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 1 December 2022
0
7
0