FRH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 404
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FRH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 404
File number: MLG 2849 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 26 May 2022 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal Decision – refusal to grant protection visa – whether Tribunal properly considered applicant’s case – typographical errors in Tribunal decision referring to applicant by wrong gender - no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 425, 425A, 426A, 430, 441A, 441C, 476, 477
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 23 May 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr M Cleary Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2849 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FRH17
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:
26 MAY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS
INTRODUCTION
The applicant seeks judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), of a decision made by the Administrative Appeals Tribunal (Tribunal) on 8 August 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The applicant’s written application raises a single ground of review alleging that the Tribunal failed to exercise jurisdiction because it did not properly consider the applicant’s case and referred to him at various times in the decision by the incorrect gender. At the hearing, the applicant raised further issues and alleged that he did not attend the Tribunal hearing because he did not receive the notification of the hearing and that the Tribunal failed to give him enough time to provide further information.
For the reasons I have explained below, I find that there is no jurisdictional error in the Tribunal decision. I therefore dismiss the application for judicial review.
BACKGROUND
The applicant is a citizen of Malaysia who entered Australia in February 2016 on an Electronic Travel Authority.
On 2 May 2016 the applicant lodged an application for a protection visa. The applicant claimed to fear harm in Malaysia because someone had stolen his identity card and borrowed money from a private finance company which was not repaid. The applicant claimed that a group of men attacked him with a knife and threatened to kill him because the debt had not been repaid.
On 27 June 2016 a delegate of the Minister refused to grant the applicant a protection visa. The delegate noted that the applicant’s claims were vague with minimal detail and this cast doubt on the veracity of his claims. The delegate found that the applicant could obtain protection from the Malaysian authorities such that he would not have a well-founded fear of persecution, and there would not be a real risk that he would face significant harm. Accordingly, the applicant did not meet the criteria for a protection visa.
On 12 July 2016 the applicant lodged an application to the Tribunal seeking review of the delegate’s decision.
On 20 July 2017 the Tribunal sent to the applicant by email an invitation to attend a hearing scheduled for 7 August 2017 to give evidence and present arguments. The Tribunal sent further SMS hearing reminders to the applicant’s mobile phone number on 31 July 2017 and
4 August 2017.
The applicant did not appear at the Tribunal hearing on the scheduled date, and the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
On 8 August 2017 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
The Tribunal found that the applicant’s protection claims were vague and lacking in detail and that it was unable to seek further information from him on a range of details relevant to his claims because of his absence at the hearing.
The Tribunal did not accept that the applicant suffered threats from the claimed private finance company or a group member in Malaysia as a result of his identity card being stolen and used by others to obtain a loan. The Tribunal also did not accept that he would face physical harm if he returned to Malaysia.
The Tribunal found that the applicant did not meet the refugee criteria in s 36(2)(a) of the Migration Act or the complementary protection criteria in s 36(2)(aa) of the Migration Act.
PROCEEDINGS BEFORE THE COURT
The applicant filed his application for judicial review on 22 December 2017. This application was filed outside the 35 day time frame prescribed by s 477(1) of the Migration Act, and the applicant requested in writing an order extending the time to him to file his application. At the hearing on 23 May 2022, I made an Order by consent extending the time for the applicant to file his application.
The sole ground in the written application reads as follows (reproduced without alteration):
1.The Second Respondent failed exercise jurisdiction by not turning his mind to properly consider the Applicant’s case.
Particulars
The Second Respondent appeared to cut and paste the Applicant’s circumstances into a template decision, often referring to the Applicant by the incorrect gender, and changing this a number of times throughout the decision. This gives rise to the concern that the secondment respondent did not properly turn his mind to the Applicant’s case, even in the Applicant’s absence, and thus the Second Respondent failed to exercise jurisdiction.
On 18 September 2018 a Registrar of this Court made an Order requiring the applicant to file and serve any amended application, supplementary court book and written submissions 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions on 9 May 2022.
CONSIDERATION
Jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief by this Court, the applicant must establish that the Tribunal decision is affected by jurisdictional error. The Tribunal will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said at [14] that if the decision-maker:
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The examples of jurisdictional error set out in Craig are not exhaustive: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [81].
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the opportunity of a successful outcome: SZMTA at [45].
Matters raised by the applicant at the hearing
The applicant was represented by a lawyer at the time he filed his application, but this lawyer withdrew from the record one week before the hearing. In circumstances where the applicant was self-represented at the hearing, I allowed him an opportunity to tell the Court what he believed the Tribunal did wrong.
The applicant made a number of oral submissions, and he also made a number of factual assertions that are more properly characterised as evidence. The applicant was not sworn at the time he made his submissions, and ordinarily a party cannot give evidence during the course of oral submissions. After discussing the matter with the parties, I indicated that I would proceed on the basis that the factual matters the applicant raised in his oral submissions amounted to the evidence that he would have given had he been sworn. I considered this course to be appropriate in circumstances where the applicant was self-represented, the Minister’s counsel confirmed that he did not wish to cross examine the applicant, and where I had formed a preliminary view at the hearing that the factual matters raised by the applicant in the course of his submissions, if accepted, would not give rise to jurisdictional error in the Tribunal decision.
The applicant’s submissions, including the factual assertions, can be summarised as follows:
(a)The Tribunal made its decision without giving the applicant enough time to provide information about his application. The decision was made in haste and this was not fair to him.
(b)The applicant was not aware of the hearing date and did not receive the invitation to attend a hearing. If the applicant had known he had to attend a hearing on 7 August 2017, he would have done so and would have provided more information.
(c)The email address recorded in his application to the Tribunal was an email that his manager from his workplace had created for the applicant. The applicant accepted that the email recorded in his application to the Tribunal was correct.
(d)The applicant claimed that he did not receive two SMS hearing reminders sent to him by the Tribunal. The applicant said that the mobile number recorded in his application was incorrect and the person who prepared the form for him had made a mistake.
(e)The applicant claimed that he had been living in a remote area at the time that the invitation to attend a hearing was sent and at the time the decision was sent. He said that he could not easily access emails in the area he lived in and he relied on his manager at his workplace to check his emails, as the manager would go to Melbourne every two to three weeks. The manager never told him about the invitation to attend a hearing.
These matters raised by the applicant orally at the hearing do not give rise to jurisdictional error in the Tribunal decision.
First, I am satisfied that the applicant was properly notified of the hearing. The Tribunal was not satisfied that it could decide the review in the applicant’s favour based on the documents before it. In these circumstances, the Tribunal was required pursuant to s 425 of the Migration Act to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in the decision under review.
The Tribunal sent a notice of an invitation to attend a hearing to the applicant by email on 20 July 2017. Pursuant to s 425A of the Migration Act, there are a number of requirements that a notice of an invitation to attend a hearing must meet. I have reviewed the notice sent in the present matter and I am satisfied that it met all the requirements set out in s 425A for the following reasons:
(a)The notice clearly set out the day on which and the time and place at which the applicant was scheduled to attend a hearing, as required by s 425A(1).
(b)The Tribunal was required to give the notice to the applicant by one of the methods specified in s 441A of the Migration Act: s 425A(2) of the Migration Act. The notice was given to the applicant by email sent to the email address set out in his application for review, which was the last email address provided by the applicant to the Tribunal in connection with the review. One method by which the Tribunal may give documents to an applicant in accordance with s 441A is to transmit the document by email to the last email address provided to the Tribunal by the applicant in connection with the review: s 441A(5) of the Migration Act. The Tribunal therefore complied with s 425A(2). I note in passing that the applicant confirmed at the hearing before the Court that this email address was correct. Pursuant to s 441C(5) of the Migration Act, the applicant is taken to have received the notice at the end of the day on which it was transmitted, namely, by the end of 20 July 2017.
(c)In the present case, the Tribunal was required to give to the applicant 14 days’ notice of the hearing: s 425A(3) of the Migration Act and reg 4.35D(3) of the Migration Regulations 1994 (Cth). The period between 20 July 2017, being the time at which the applicant was taken to have received the notice, and the hearing on 7 August 2017 exceeded 14 days. The notice therefore complied with the requirement in s 425A(3).
(d)The notice was required to contain a statement to the effect of s 426A of the Migration Act: s 425A(4) of the Migration Act. Section 426A sets out the options open to the Tribunal if the applicant fails to appear at a hearing. The notice in the present matter included the following statement:
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Minister considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
The Tribunal also enclosed an information sheet containing information about hearings which set out in greater detail information which is consistent with the effect of s 426A of the Migration Act. The notice in the present matter complied with the requirements of s 425A(4).
The applicant submitted to the Court that he did not receive the invitation to attend the Tribunal hearing. Even if the applicant did not in fact receive the notice of the invitation to attend a hearing, he is deemed to have received it pursuant to s 441C(5) at the end of 20 July 2017. By sending a notice of an invitation to attend a hearing that meets the requirements of s 425A of the Migration Act, the Tribunal has properly notified the applicant of the hearing. Any failure by the applicant to check his email or to arrange for somebody else to check his email does not invalidate the notice sent by the Tribunal, nor does it give rise to jurisdictional error in the Tribunal decision.
The Tribunal also sent two SMS hearing reminders to the applicant at the mobile phone number set out in his application for review. The applicant told the Court that he did not receive these SMS messages because the phone number included in his application was incorrect. This does not indicate any error on the part of the Tribunal, let alone jurisdictional error. In any event, even if the applicant did not receive the SMS messages, he had still been put on notice of the hearing in accordance with s 425A of the Migration Act and this was sufficient for the Tribunal to discharge its obligation to properly notify the applicant of the hearing.
In circumstances where:
(a)the applicant had been invited under s 425 of the Migration Act to appear before the Tribunal; and
(b)the applicant failed to appear before the Tribunal on the day on which, or at the time and place at which, he was scheduled to appear,
the Tribunal’s discretions in s 426A(1A) were enlivened: see s 426A(1) of the Migration Act.
One of the discretions open to the Tribunal was, by written statement under s 430 of the Migration Act, to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. That is the course that was adopted by the Tribunal in the present matter and it was entirely open to the Tribunal to do that.
The final observation to make about the matters raised by the applicant in his oral submissions is that the assertion that the Tribunal did not give the applicant proper time to present his case is unfounded. There are three reasons for this. First, as set out above, the applicant was given more notice of the hearing than the 14 days that he was required to be given under the relevant legislation. Second, the delegate’s decision clearly put the applicant on notice that the vagueness of his claims and minimal detail provided cast doubt on the veracity of his claims. There was over a year between the time at which the applicant sought review of the delegate’s decision, and the time at which he was invited to attend a hearing before the Tribunal. Despite the concerns raised by the delegate, the applicant did not provide any further evidence to the Tribunal in this period. Third, there is no suggestion in any of the materials before the Court that the applicant ever requested any further time to present his case to the Tribunal.
For all of the above reasons, the matters raised by the applicant in his oral submissions do not establish jurisdictional error in the Tribunal decision.
Ground raised in written application
The applicant did not make any oral submissions in relation to the ground in his written application, and simply noted that it was his previous lawyer who raised the ground and not the applicant himself. I nevertheless consider whether the ground in the written application establishes jurisdictional error.
The ground in the written application asserts that the Tribunal failed to properly consider the applicant’s case because it appeared to cut and paste the applicant’s circumstances into a template decision and referred to the applicant on some occasions by the incorrect gender.
There are a number of places in the Tribunal’s reasons where the Tribunal refers to the applicant as ‘her’ or ‘she’, including the following (with italics emphasis added):
(a)at [5], in discussing the procedural history of the Tribunal review, the Tribunal said:
On 20 July 2017, the Tribunal wrote to the applicant that it considered all the material before it relating to her application but was unable to make a favourable decision on the information alone. The Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in her case at the hearing on 7 August 2017. The letter advised that if she did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal. The letter also advised the applicant that if she was not able to attend the hearing she should advise the Tribunal. As noted from the Tribunal’s file, the applicant was also sent to her mobile phone two reminders concerning the scheduled hearing on 31 July 2017 and 4 August 2017.
(b)at [6], the Tribunal observed that the applicant had not ‘contacted the Tribunal to explain her non-attendance’;
(c)at [21], the Tribunal identified steps it would have taken to refer the applicant to country information from the Department of Foreign Affairs and Trade, had the applicant attended the hearing, and indicated that it would have ‘allowed her to comment on country information’;
(d)at [22], the Tribunal said:
The Tribunal would have also explained to the applicant (and sought her comments) if she had attended the scheduled hearing that it was obliged to put to her information that addressed some of the issues she had raised in particular about loan sharks in Malaysia and the lack of protection available to her. The Tribunal would have explained that it was obligated to take this information into account in assessing her claims.
(e)at [23] and [24], in setting out its key findings, the Tribunal referred to the applicant as both male and female at various times:
On the basis of the above available evidence, the Tribunal does not accept that the applicant suffered threats from “private finance company” or “a group member” in Malaysia as a result of his identity card having been stolen and use by others to obtain a loan from a private finance company and does not accept (as he claims) would face physical harm if she returned to Malaysia.
Considering the applicant’s individual circumstances, on a cumulative basis, the Tribunal finds there is no real chance that, if he returns to Malaysia in the reasonably foreseeable future, she would be persecuted for any reason. His fear is not well-founded as required by s. 5J of the Act and therefore he is not a refugee within s.5H of the Act.
It is readily apparent that the references to ‘she’ and ‘her’ throughout the Tribunal decision are typographical errors.
It is also readily apparent from a review of the Tribunal decision as a whole that the Tribunal considered the applicant’s claims and that the decision relates to the applicant. For example, in setting out the procedural history at [5] it is clear from the dates referred to that the Tribunal is considering the factual circumstances of the applicant’s matter.
It is also clear from the summary of the applicant’s claims at [16] of the Tribunal’s reasons that the Tribunal has correctly understood the applicant’s claims for protection as set out in his application for a protection visa. At [16], the Tribunal said (emphasis in original):
The applicant’s claims were set out in his application for protection visa. The applicant stated that he left Malaysia for Australia because the applicant was in trouble with a private finance company. He claims that his identity card had been stolen and it was used to obtain a loan from a private finance company. The applicant claims he had not made any repayments and that a group member from the finance company was searching for him while in Malaysia and asking for repayments to be made. The applicant claimed that he had been beaten badly and that he was threatened to be killed, if he reported his problem to the local police. The applicant also claims that if he returns to Malaysia, this group member will harm him and hit him and would kill him for refusing to pay the loan. Also it would be difficult to find employment in Malaysia. He also claimed that the local police could not protect him. He did not relocate within Malaysia because he feared that if he did so, he would found and killed by the “member of the group.”
The rejection of the applicant’s claims at [23] of the Tribunal’s reasons, extracted above, also shows that the Tribunal made findings on the specific claims raised by the applicant.
The Tribunal’s decision should be read as a whole and without an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [30]. It is clear from the whole of the reasons in the present case that the Tribunal has engaged in an active intellectual assessment of the applicant’s claims as it was required to do: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [45].
A typographical error will not necessarily amount to jurisdictional error: see S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 at [34]. In the present case, any typographical errors in relation to the applicant’s gender do not amount to jurisdictional error. The applicant’s gender was not in any way relevant to his claims and it is clear that the Tribunal has assessed the applicant’s claims even if, from time to time, it referred to his gender incorrectly.
The ground set out in the application is not established.
CONCLUSION
I have found that the applicant has not established jurisdictional error in the Tribunal decision. It follows that the application to this Court is dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 26 May 2022
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