FROST & BONE
[2017] FCCA 3022
•26 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEG17 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2018] FCCA 3022 |
| Catchwords: MIGRATION – Review of decisions – Judicial review – decision of Refugee Review Tribunal – whether tribunal misinterpreted or misapplied legislation – whether decision of tribunal was unreasonable – whether tribunal properly considered reasonableness of relocation. |
| Legislation: Migration Act 1958 (Cth), ss.36, 36(2), 36(2)(a), 36(2)(aa), 36(3), 36(4), 36(4)(a), 36(4)(b), 36(5A), 65 |
| Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 BEG17 v Minister for Immigration & Anor [2018] FCCA 216 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 Minister for Immigration and Border Protection v Nguyen (2017) 254 FCR 522 SZRTC v Minister for Immigration and Border Protection (2014) 224 FCR 570 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 |
| First Applicant: | BEG17 |
| Second Applicant: | BET17 |
| Third Applicant: | BEU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 257 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 15 June 2018 |
| Date of Last Submission: | 15 June 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 26 October 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr Boccabella |
| Solicitors for the Applicants: | Chand Lawyers |
| Counsel for the First Respondent: | Mr J Byrnes |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 21 March 2017 is dismissed.
Within seven (7) days of the date of these orders the first respondent file and serve submissions as to costs of these proceedings.
Within fourteen (14) days of the date of these orders the applicants file and serve submissions as to costs of these proceedings.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 257 of 2017
| BEG17 |
First Applicant
| BET17 |
Second Applicant
| BEU17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 21 March 2017, the applicants filed an application for judicial review of the decision of the then Refugee Review Tribunal made on 22 October, 2014. By that decision the tribunal had affirmed a decision of the delegate of the first respondent not to grant to the applicants Protection (Class XA) visas.
The application was commenced outside of the time limited for the bringing of such an application and an extension of time was necessary for the applicants to pursue the application. I granted that extension on 31 January, 2018: BEG17 & Ors v Minister for Immigration and Border Protection& Anor [2018] FCCA 216.
For the reasons that follow, the application for review must be dismissed.
Background
I have adapted the factual recitation that follows from the written submissions delivered by the first respondent. Those submissions contain an accurate summary of the factual background to the proceedings. The contrary was not contended by the applicants.
The first and second applicants are Indian citizens. The first applicant has been in Australia since 14 June, 2008. The second applicant has been in Australia since 11 March, 2007. The third applicant is their son, who was born after their visa applications were made.
On 14 August 2013, the first and second applicants applied for Protection (Class XA) visas. Initially, only the first applicant made claims for protection and the second applicant had been included as a member of the first applicant’s family unit.
On 24 February, 2014 an application was made on behalf of the third applicant as a member of the family unit in connection with the visa applications.
On 28 February, 2014 a delegate of the first respondent refused to grant the first applicant the visa for which he applied. In summary, the delegate was not satisfied that the first applicant was a person in respect of whom Australia had protection obligations under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Schedule 2 to the Migration Regulations 1994 (Cth).
The delegate did not accept a number of the first applicant’s claims. Given that the delegate refused to grant a visa to the first applicant, the delegate also refused to grant visas to the second and third applicants.
On 17 March, 2014 the applicants applied to a Refugee Review Tribunal for a review of the delegate’s decision. By letter dated 29 July, 2014 an officer of the tribunal invited the applicants to appear before the tribunal and provide written submissions. All applicants attended a hearing before the tribunal on 13 October, 2014.
Before the tribunal, the first applicant’s claims related to harm facing him in India as a result of his relationship with the second applicant, a divorcee and a member of a different caste from the first applicant. The second applicant also claimed the need for protection as a result of her relationship with the first applicant.
Both applicants claimed that they feared being harmed by two aunts and an uncle of the second applicant. They thought that they might be physically harmed or killed because of their inter-caste marriage. Part of the applicants’ claims were that if they returned to India, they would be arrested on arrival at any airport in the country because the first applicant’s name would be recorded on a computer system because the second applicant’s family either had lodged or would lodge a complaint against him with the police.
At the hearing convened by the tribunal to hear evidence and submissions from the applicants the tribunal explored the prospect that the applicants could reside in Nepal, rather than India. The tribunal recorded the following in its reasons for decision about this matter at [39] and [41]:
I told the applicant that I may also have to consider whether he had an existing right to enter and reside in Nepal, as the evidence suggested he did, and where he had not claimed to fear being harmed. He said that in fact [the second applicant’s uncle] had gone to Nepal for two days from India after being released by the police, although he had returned to India because his wife and child were in hiding in Chandigarh.
…
He also asked what might happen if his wife’s relatives in India found out they were in Nepal. He said that they might be able to find out through his wife’s aunt’s husband who lived in Australia. He did not dispute that the relatives in Punjab had no influence over police in Nepal and no contacts in the Nepalese police force.
When summarising the second applicant’s evidence at the hearing, the tribunal said at [51]:
I told the applicant that I may also have to consider whether the applicants had an existing right to enter and reside in Nepal, as the evidence suggested they did, and where they had not claimed to fear being harmed. She agreed that the applicants could go to Nepal but said they would always be living in fear and could not live there openly. They couldn’t escape from the relatives and would always have doubt in their minds. She said her relatives were capable of anything, and that she could not take this risk, particularly with a little baby.
The tribunal’s reasons show that the tribunal accepted that:
a)the adult applicants were nationals of India;
b)“honour killings” continue to occur in India, especially in Punjab and Haryana, including reports of “honour killings” involving couples from different castes in Punjab;
c)the adult applicants were genuinely frightened about the intentions of the two aunts and uncle and their accounts were consistent in important respects; and
d)threats had been made towards both adult applicants, initially through the contact with the applicant’s wife and, in 2010, via her uncle during his trip to India.
The applicants expressed a fear that their family members in Punjab have used their influence or money to ensure the applicants are identified as soon as they re-enter India. However, as to that matter, the tribunal was unable to establish with any confidence whether this had occurred, but noted the high prevalence of corruption at India’s international ports, including airports, and accepted it was possible.
The tribunal expressed its views about these matters as follows:
57. As to the adult applicants, I accept that they are genuinely frightened about the intentions of the two aunts and the uncle of the female applicant towards them. Their accounts were internally consistent in all important respects, the only minor exception being the point at which threats from the relatives ceased (whether before or after the couple had commenced living together). I do not infer from that minor difference that they had not been truthful in all other respects.
…
59. I accept that threats were made towards both adult applicants, initially through the contact with the applicant wife and subsequently in 2010 via her uncle, [redacted], during his trip to India.
60. Both plausibly claimed that the three individuals who made the threats are very wealthy landowners in Punjab with contacts in the police force to the highest level in that state. Each referred to corruption within the police force which enabled individuals to influence the police, and each claimed that [redacted] and his wife were identified and detained by corrupt police who had been paid off.
…
63. The applicants provided evidence from numerous sources about the serious ill-treatment and killings of individuals in Punjab who have breached conservative cultural standards by marrying without the approval of family. The applicants fear, but do not know with certainty, that the family members in Punjab have used their influence or money to ensure that the applicants are identified as soon as they re-enter India. I am unable to establish with any confidence whether this has occurred. However I note evidence that there is a high prevalence of corruption at India’s international ports, including airports7 and accept that it is possible the relatives could arrange this through payments to the right officials.
Although the tribunal does not appear to have said so in terms, the clear implication is that the tribunal must have been satisfied that the applicants had demonstrated that they had a well-founded fear of persecution should they return to India by reason of the fears they had expressed arising from their marriage. Were it otherwise, the need to consider relocation to Nepal would not have arisen.
The tribunal analysed whether the applicants had protection elsewhere, including in Nepal. The tribunal concluded that nationals of India had the same privileges as nationals of Nepal in the matters of residence, ownership of property, participation in trading, movement and other privileges of a similar nature. The tribunal was satisfied that the applicants had an existing right to enter and reside in Nepal, and that they could enter Nepal through the international airport regardless of the departure point (such as Australia). The tribunal found that the applicants had an existing right to enter and reside in Nepal which had not been withdrawn. The tribunal recorded:
67. When the issue of their right to enter and reside in Nepal was raised with them during the hearing the applicants did not suggest that there might be any practical barriers for Indian citizens travelling to Nepal. On the assumption that they may face Convention related persecution or alternatively significant harm in India it is most straightforward to consider their circumstances in relation to Nepal.
68. The above evidence satisfies me that the applicants have an existing right to enter and reside in Nepal, and that they can enter Nepal through the international airport regardless of the departure point (such as Australia). Relying on this evidence I find that the applicants have an existing right to enter and reside in Nepal, through a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.
69. The adult applicants have expressed a fear that the relatives in Punjab will find out through the husband of one of them in Australia that the applicants have gone to Nepal, and that the relatives will be able to harm them there. I consider the chance remote that this will happen…
The tribunal explained why it considered the chance that the applicants would come to harm in Nepal to be remote:
69. … It requires firstly that the husband [of one of the relatives of the second applicant] here manages to obtain and pass on that information, then that the relatives in Punjab will have the ability to locate the applicants in Nepal and then that they will either harm them directly or have contacts in the police force in Nepal willing to harm the applicants on their behalf. It is only in circumstances where all these steps were implemented that the applicants might be said to have a well-founded fear of being persecuted or facing a real risk of suffering significant harm in Nepal.
70. I do not accept that all the necessary elements will exist. The chance is remote that they will and therefore I find that the adult applicants do not have a well-founded fear of Convention related persecution in Nepal. For the same reason I find that there are no substantial grounds for believing that as a necessary and foreseeable consequence of availing themselves of the right to enter and reside in Nepal, there is a real risk either will suffer significant harm.
71. Neither has claimed that they might be forced to return to India by the Nepalese authorities. There is no evidence before me to the contrary. Therefore neither has a well-founded fear of refoulement from Nepal to India.
The tribunal moved to consider whether s.36(3) of the Act was engaged:
72. I have found that all three applicants are nationals of India. They have never visited Nepal nor taken any steps to exercise their right to enter that country. Having regard to their evidence, to the terms of the Treaty and the administrative arrangements for entry as summarised in the above reports, I find that the applicants have the right to enter and reside in Nepal and have not taken all possible steps to avail themselves of that right for the purposes of s.36(3) of the Act.
Having decided that it was engaged, the tribunal said:
73. The relevant exceptions to Section 36(3) do not apply and therefore Australia does not owe protection obligations to the applicants.
The tribunal concluded that because s.36(3) was engaged, the applicants were not persons in respect of whom Australia had protection obligations under the Refugees Convention and they therefore did not satisfy that criterion set out in s.36(2)(a) of the Act. Similarly, the tribunal was not satisfied that the alternative criterion at s.36(2)(aa) of the Act had been met. The tribunal affirmed the decision to not grant the applicants the visa.
The Grounds of Review
The proposed application for review sets out nine grounds of review. Only four are pressed. They appear as follows:
1. The second respondent misinterpreted s 36(2), s 36(2A), s 36(3) and s 36(4) of the Migration Act 1958.
2. The decision of the second respondent was unreasonable;
3. The second respondent did not conduct a proper review in accordance with Division 3 and 4 of Part 7 of the Migration Act
…
8. The second respondent did not conduct a proper review in accordance with the Migration Act.
The grounds are devoid of particulars but the written submissions relied upon by the applicants (delivered in support of their application for an extension of time) provide some clues to the actual issues the applicants wish to agitate. The applicant’s counsel has also delivered submissions in reply to the first respondent’s submissions on the present application that provide some amplification.
I will deal with the grounds seriatim.
Ground 1
The argument in respect of ground 1 focusses upon the way in which the tribunal dealt with s.36(3) and the effect of s.36(4) of the Act. The applicants submit that the tribunal misinterpreted and misapplied s.36(4)(b) of the Act by finding that the applicants could easily go to Nepal and that the persons who sought to harm the applicants would not be able to go to Nepal and harm them. It follows from the applicants’ counsel’s submissions that the applicants accept that the tribunal gave some consideration to s.36(4) of the Act. It is not contended that the tribunal did not give any consideration to the subsection.
Subsections 36(3) and (4) are as follows (as at the time of the tribunal’s decision):
(3) Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
The applicants argue that in order to affirm the decision to refuse the protection visa the tribunal needed to find that s.36(3) applied to the applicants and that s.36(4) did not apply to the applicants. But that submission cannot be accepted if it is intended to mean that the tribunal must make a positive findings that s.36(4)(a) or s.36(4)(b) does not apply. As the first respondent submits, s.36 contains a cascading series of qualifications. Subsection 36(3) operates as a qualification on s.36(2). Subsections 36(4) to 36(5A) then operate as qualifications on s.36(3). In SZRTC v Minister for Immigration and Border Protection (2014) 224 FCR 570, the plurality described the correct approach to the application of s.36(3)as follows:
The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s 36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s 36(3) and determine whether or not the applicant is a person to whom that section applies. If it does not, the “gateway”, created by s 36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s 36(3) applies. If s 36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-ss (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s 36(3) and keep the “gateway” open.
As to the operation of s.36(4) of the Act, the first respondent directs me to Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 at [46] to [47] where Mortimer J said:
For s 36(4) to be enlivened, the Minister submitted the Tribunal must form a positive state of satisfaction about the matters in either paragraph (a) or paragraph (b) of that sub-section.
I accept that submission. For the Tribunal to be satisfied of either of the matters in s 36(4), so as to avoid the deeming effect of s 36(3), the Tribunal would need to have before it probative material that persuaded it an applicant fell within either of the subparagraphs.
The applicants argue that in its reasons in [69] – [70] the tribunal, in effect, found that the persons who sought to harm the applicants “would not be able to go to Nepal and harm them”. In doing so, it was argued, it misinterpreted and misapplied s.36(4)(b) of the Act.
But that is not the effect of the tribunal’s reasons. The tribunal’s reasons, set out above, reflect an acceptance that the second applicant’s relatives might go to Nepal or have others go to Nepal to harm the applicants. The tribunal, however, thought that risk remote, not that it did not exist at all. The applicants’ argument restates the tribunal’s reasons in a way that is not open on those reasons.
Having found that the chance that the second applicant’s relatives would harm the applicants in Nepal was remote, and there being no other suggestion of harm to the applicants should they live in Nepal, it followed that there was not a real risk that the applicants would suffer significant harm if they went to Nepal. That is to say, s.36(4)(b) could not have been satisfied on the findings made by the tribunal.
The applicants in their submissions draw my attention to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at [36] where McHugh J noted that it was not acceptable to find there was no real chance of persecution when the possible victim would have to live in a way incompatible with his beliefs and usual way of living. They submit that in relocating to Nepal, the applicants would be required to live as if they were in hiding; keep their location a secret; have minimal and possibly no contact with relatives or friends in India; never visit India; not reveal the ordinary aspects of life on any social media; and generally take great care not to accidentally reveal where they lived. However, the tribunal imposed no such requirement upon the applicants. The tribunal did not require or suggest that it expected the applicants to live discreetly.
The tribunal acknowledged that Indian citizens could easily and freely access Nepal across their common border. The applicants argue that no proper consideration was given to the prospect that “agents” of the second applicant’s family or her family themselves could enter Nepal and harm the applicants. To prevent being found and harmed in Nepal, the applicants argue that they would effectively have to live in hiding. That, they argue, is incompatible with the finding of the tribunal that there was no real risk of serious or significant harm should they return to live in Nepal. That demonstrates, they argue, that the tribunal has misapplied the requirements of s.36(4)(b) of the Act.
But the tribunal did not discount that possibility at all. In fact, the tribunal did not suggest that the same ease with which the applicants could enter Nepal from India was not available to those wishing to harm the applicants. The tribunal’s reasons at [69] – [70] are premised on the proposition that they could enter Nepal or access people in Nepal that they might procure to harm the applicants. The focus of the tribunal’s reasons is upon the likelihood (or chance) of that happening – the very thing the tribunal was required to assess. The tribunal in its reasons acknowledged the applicants’ fear that the second applicant’s relatives might find out about their relocation to Nepal. It found that the only way in which that could reasonably occur was through an uncle of the second respondent who lived in Australia. For the reasons I have extracted above, the tribunal considered that chance remote. Also found to be remote was the likelihood of the second applicant’s relatives being able to track down the applicants and either harming them directly or having contacts in the police force in Nepal willing to harm the applicants on their behalf. In any case, it was something to which the tribunal gave consideration.
In my view, ground 1 of the application does not reveal jurisdictional error.
Ground 2
This ground alleges that the tribunal’s decision was unreasonable. However, given the findings of the tribunal set out above, the tribunal’s decision could not be said to be unreasonable. Indeed, given those findings, the tribunal’s ultimate determination was inevitable. If there was nothing more to this ground it must fail.
However, the applicants’ written submissions expand upon this ground and narrow the focus of this complaint to the tribunal’s findings in paragraph [69] of it reasons. The applicants submit that the tribunal’s finding that the applicants would not face a real chance of significant harm in Nepal was unreasonable. They submit that to live in Nepal would require them to keep their existence in Nepal a secret, not contact friends or relatives in India lest they might inadvertently reveal the whereabouts of the applicants and always be looking over their shoulders. They submit that the tribunal failed to consider that once the existence of the applicants in Nepal became known, the ease with which the border between Nepal and India could be crossed would allow those wanting to harm the applicants to send someone to Nepal to harm them or engage someone in Nepal to harm them.
The applicants further submit that the tribunal’s decision about this matter was not based upon any proper findings of fact, but rather was a finding based on a “gut feeling”. The applicants’ counsel took me to WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 where Lee and Moore JJ said:
21. Failure of the Tribunal to act “judicially” will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act “judicially” and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Bond per Deane J at CLR 366-367). That is to say, the Tribunal cannot determine the matter by a “tossing a coin” or by making a “snap decision” or by acting on instinct, a “hunch” or a “gut-feeling”.
I reject the submission that the tribunal’s decision was based upon a “gut-feeling” or “instinct”. The tribunal’s decision was based upon a number of considerations set out in [69] of its reasons. Each of the propositions had logical force. The tribunal clearly considered the possibility that the second applicant’s relatives might find and harm the applicants in Nepal but considered that the chance of that happening was remote.
The tribunal’s reasoning in [69] of its reasons is not illogical or irrational, let alone does it amount to “extreme” illogicality or irrationality “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the tribunal”: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109. Put another way, it was open to the tribunal to engage in the process of reasoning revealed in its reasons and to make the findings it did make on the material and in particular the evidence of the applicants before it. The tribunal’s reasons demonstrate that:
a)at [27], the tribunal recorded the applicants’ claims that they had no contact with the second applicant’s aunt’s husband (this being the person referred to in [69]);
b)at [41], the tribunal recorded that the first applicant’s concerns in respect of relocation to Nepal arose from the second applicant’s aunt’s husband finding out. The first applicant did not dispute that the relatives did not have influence over the police in Nepal or contacts in the Nepalese police force. The aunt’s husband was noted as living in Australia;
c)at [51], the tribunal recorded that the second applicant stated no more than that they would be living in fear and could not live openly in Nepal. This was not further expanded, for example how the second applicant claimed their relatives would locate them and harm them in Nepal; and
d)at [52], the tribunal recorded that the second applicant stated she had nothing to add regarding any other fears she had.
In paragraphs [69] and [70], on the basis of the material before it, the tribunal identified three events that it considered would have to happen for the applicants to be at the risk they claimed. First, the aunt’s husband would have to obtain information that the applicants had left Australia and gone to Nepal. Second, the aunt’s husband would have to pass the information on about the applicants’ relocation to Nepal to the second applicant’s relatives in India. Third, the relatives would have to locate the applicants in Nepal. The tribunal did “not accept that all the necessary elements will exist” and so the chance of harm was said to be remote.
Other decision makers might have come to a different conclusion, but that is not the test. There is no illogicality or irrationality in the tribunal’s reasoning. This ground of review does no reveal error.
Grounds 3 and 8
These grounds are dealt with together by the applicants in their submissions. It is convenient to deal with them together. In relation to these grounds the applicants rely on Minister for Immigration and Border Protection v Nguyen (2017) 254 FCR 522 and in particular paragraphs [31] to [36] of that decision:
31. One of the two main issues resolved by the Tribunal included the question of whether it could be satisfied that community services were reasonably available to the mother.
32. The difficulty revealed by the manner in which the Tribunal exposed the fact that it had obtained information during the course of the hearing was that:
· the Tribunal did not then identify the source of its information that “there are plenty of residential care places and there’s 73 available in your area at the moment”.
Without further information being disclosed, it is difficult to see how a party could meaningfully respond to a statement so broadly expressed. The information then disclosed, moreover, did not disclose:
· anything as to whether any of those “residential care facilities” offered services which could reasonably satisfy the needs of the mother.
These difficulties were further compounded by the fact that the Tribunal’s reasons for decision at paras [16], [49] and [53] fail to:
· disclose anything as to the nature of the services in fact provided by one or other (or all) of the 73 aged care facilities other than that disclosed in paras [49] and [52].
Those paragraphs, moreover:
· are expressed more in terms of a conclusion rather than a finding of fact which may be found to be supported by a reference to the evidence, presumably evidence to be found in the information obtained by, but not disclosed to, the parties; and
· seem to conflate the findings in respect to reg 1.15AA(1)(e)(i) with reg 1.15AA(1)(e)(ii). Paragraph [52] (for example) seems to address reg 1.15AA(1)(e)(i) but then shifts its attention to (or conflates) considerations of relevance to reg 1.15AA(1)(e)(ii). Although the requirements imposed by reg 1.15AA(1)(e) are expressed in the disjunctive, there is no impediment to the Tribunal considering both of the requirements together (cf. Nguyen v Minister for Immigration and Border Protection[2016] FCA 688 at [31] to [32] per Buchanan J). But that which remains unclear from paras [52] to [54] of the reasons for decision is a statement as to those findings which the Tribunal has considered “material” to one requirement or the other.
It may also be finally noted that:
· the requirement imposed by s 368(1)(c) of the Migration Act to make “findings on any material questions of fact” is not met by a statement as to an ultimate conclusion founded upon a series of primary facts without a statement as to what those primary fact are, those being the facts which are “material” to the conclusion reached; and
· although there is no necessary difficulty with an administrative decision-maker making a statement such as that contained in para [55] that consideration has been given to “the evidence overall”, such a statement does not shield from scrutiny such consideration as was in fact given to the evidence and (in particular) evidence going to a centrally relevant submission. A statement that a Minister for example has “considered all relevant matters” and “all other evidence” may be said to fall short of an adequate reference to the evidence and falls short of putting a party in a position whereby they can “connect” in any meaningful manner the “findings” to the evidence (cf. King v Minister for Immigration and Border Protection [2014] FCA 766 at [37], (2014) 142 ALD 305 at 320 per Flick J. See also: Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22], (2013) 229 FCR 290 at 297 to 298 per Flick J. It is “not only prudent but also desirable” to explicitly deal with such matters: [2013] FCAFC 141 at [31], (2013) 229 FCR 290 at 299 per Katzmann J. Wigney J agreed: [2013] FCAFC 141 at [34], (2013) 229 FCR 290 at 300). It is necessary “to explain what evidence [the tribunal] has accepted or rejected”: cf. TelePacific Pty Ltd v Federal Commissioner of Taxation [2005] FCA 158 at [50] to [53], (2005) 218 ALR 85 at 95 to 96 per Sackville J. The reference in para [49] of the Tribunal’s reasons to the “web addresses” is, it is respectfully considered, not a sufficient reference to the evidence for the purposes of s 368(1)(d) of the Migration Act. That which is demanded by that provision is not a reference to the sources from which the evidence may be independently discerned. Rather, what is required is a reference to that part of the information to be apparently found at one or other (or possibly all) of the “web addresses” from which evidence may be found to base a finding made on a “material question of fact”. There remains no necessity to refer to every piece of evidence (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] to [47], (2003) 236 FCR 593 at 604 to 605 per French, Sackville and Hely JJ), but there remains a necessity to refer to “the evidence” which founds facts “material” to a decision reached.
33. The Tribunal did in fact consider the circumstances in which the mother found herself, including her desire to stay at home; the extent to which family members could render assistance; her commitment to her church; and her dietary and social needs. That which is “missing”, with respect, from the tribunal’s analysis, are findings in respect to the services in fact provided by one or other (or all) of the 73 residential care facilities and findings as to the manner in which the mother could reasonably obtain a service which matched her own personal circumstances. The failure of the Tribunal to make such findings founds a conclusion that the tribunal did not consider that such findings were necessary to a proper application of reg 1.15AA(1)(e) to the facts.
34. Such findings which were “missing” and which were essential (or “material”) to the conclusion reached were findings such as:
· the extent to which residential care facilities had “Vietnamese speakers” available and (in the case of the Forest Lake facility to which reference is made at para [16]) the regularity with which such “speakers” were in attendance and the positions occupied by such “speakers”, there being presumably a difference between such “Vietnamese speakers” being available as nurses or caring staff as opposed to receptionists or visiting doctors;
· what were the “services for Vietnamese clients” to which the Tribunal referred (at para [49]);
· the “places” said by the Tribunal (at para [49]) to offer such services;
· the extent to which such services were available, such as whether services were available daily, regularly or intermittently; and
· the “many other places” which were said by the Tribunal to “cater to different cultural, religious and ethnic needs” (at para [53]), including the manner in which such “many other places … cater to different cultural, religious and ethnic needs” and whether such “needs” included having a Vietnamese background.
Generalised statements made by an administrative decision-maker, with respect, fail to properly disclose to a Court undertaking a process of judicial review the manner in which and the basis upon which a decision has been made. It is to address such deficiencies that provisions such as ss 430 and 368 of the Migration Act are directed.
35. It is this “missing” evaluation which exposes the fact that the Tribunal failed to properly apply reg 1.15AA(1)(e) to the particular facts and circumstances of the mother. The Tribunal in fact considered the facts and circumstances of the mother but failed, with respect, to consider the other side of the equation: namely, the manner in which the 73 aged care facilities which it had identified presumably by its own searches “matched up” with the mother’s personal circumstances.
36. To so construe the reasons provided by the Tribunal in the present case is not to construe them with an eye “keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ); it is to construe those reasons by reference to what those reasons do not address rather than the manner in which the reasons resolves matters to which it has directed attention.
The applicants submit that the tribunal made the same type of error here at [69] of its reasons (extracted above). They submit that the tribunal’s finding that the chance that the second applicant’s relatives will harm the applicants in Nepal was remote was a conclusion reached on the basis of other unstated facts. Further, they argue that the conclusions are reached on the basis of some assumptions that are not borne out by the evidence, such as the assumption that harm will only befall the applicants if:
a)the husband here manages to obtain information that the applicants have left Australia and gone to Nepal;
b)he passes on that information to the second applicant’s relatives in Punjab; and
c)they have the ability to locate the applicants in Nepal.
Moreover, they point out the question of relocation by the applicants to Nepal was raised by the tribunal without notice to the applicants and the tribunal had plainly researched that matter without revealing to the applicants the material upon which it was proceeding.
The applicants submit that the tribunal’s finding that the chance of them suffering significant harm in Nepal was remote was a “very generalised sweeping statement” of the type described in [34] of Ngyuen extracted above. However, I do not consider that it was of such a nature. The tribunal’s finding in that regard was supported by the reasoning that I have referred to above in respect of the earlier grounds of review.
The applicants’ submissions focus upon the ease with which the second applicant’s relatives might pass from India to Nepal and suggest that the tribunal’s reasons did not address that issue. So much appears from the applicants’ written submissions:
15. What is ‘missing’ in the tribunal’s fact finding and reasoning exercise after having found that the applicants could easily settle in Nepal directly from Australia are:
a. If the border was ‘porous’ to the applicants, what facts made the border impervious to those wishing to harm the applicants?
b. If Maoist rebels from India can carry out attacks in Nepal; why can’t others plan harm from India and execute those plans in Nepal?
c. What protection could the police in Nepal give once it is conceded the police are corrupt?
d. What methods of entry and movement to and in Nepal would place obstacles in the way of those wishing to harm the applicants?
e. Given there are no records taken of Indians entering Nepal, how would the applicants be able to know if anyone was coming to harm them? (The applicants having stated that those wishing to harm them have contacts in Nepal)?
But the kernel of the tribunal’s decision was not that the second applicant’s relatives could not travel to India to harm the applicants. There was, on the tribunal’s reasons, no issue about that. The kernel was the likelihood that the second respondent’s relatives would find out that the applicants were in Nepal and where in Nepal they might be. That was the focus of [69] of the tribunal’s reasons, not the ease with which people pass from India to Nepal. The tribunal concluded that it was unlikely that the second applicant’s relatives would find out those matters and thus the chance of significant harm to the applicants in Nepal was remote.
I accept the first respondent’s submission that these grounds do not reveal jurisdictional error on the part of the tribunal.
Conclusion
The applicants do not establish that the tribunal’s reasons are affected by jurisdictional error. The application must be dismissed with costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 26 October 2018.
Date: 26 October 2018
0
14
3