GBL18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] FedCFamC2G 23

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GBL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 23

File number(s):	SYG 3257 of 2018
Judgment of:	JUDGE MCCABE
Date of judgment:	17 January 2025
Catchwords:	MIGRATION – protection visa – review of a decision of the Administrative Appeals Tribunal – no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	43
Date of hearing:	12 December 2024
Place:	Sydney
Applicant:	The applicant appeared in person
Solicitor for the first respondent:	Ms S Giannopoulous (HWL Ebsworth Lawyers)
Second respondent:	Submitting appearance, save as to costs

ORDERS

SYG 3257 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GBL18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MCCABE
DATE OF ORDER:	17 JANUARY 2025

THE COURT ORDERS THAT:

1.The application dated 20 November 2018 is dismissed.

2.The applicant pay the first respondent’s costs in the fixed amount of $5,600.

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 MCCABE:

1. Mr GBL18 is a Malaysian citizen. He entered Australia on an Electronic Travel Authority (ETA) visa in October 2016. In July 2017 he applied for a Protection (subclass 866) visa (the visa) while still onshore. Mr GBL18 claimed he feared violent retribution from loan sharks in respect of debts that he was unable to repay. A delegate (the delegate) of the first respondent (the minister) refused the application, and Mr GBL18 applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision in October 2017.

2. The Tribunal told the applicant before the hearing that it did not have enough information in its files to make a decision in the applicant’s favour. The Tribunal wrote on several occasions to urge Mr GBL18 to provide anything further in support of his claim. He declined to do so.

3. On 25 October 2018, the applicant attended the hearing to answer questions about his case. The Tribunal’s reasons for decision recorded the applicant saying he had no further information or documents beyond what he had already supplied.

4. The Tribunal was unimpressed. It concluded the applicant was not a person to whom Australia owed protection obligations under ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act).

5. Mr GBL18 sought judicial review of the Tribunal’s decision. The applicant identified four grounds of review, but his central complaint was that the Tribunal denied him the opportunity to obtain or provide extra information and documents.

6. The application for judicial review must be dismissed. The Tribunal did not deny the applicant procedural fairness or otherwise err in its decision. I explain my reasons below.

   BACKGROUND

7. Mr GBL18’s ETA expired in January 2017 while he was still in Australia. He thereafter remained in this country as an unlawful citizen until he applied for a protection visa on 10 July 2017. He has remained here since then on bridging visas. He lives with his wife and mother-in-law.

8. The ‘Application for a protection visa’ form is reproduced at pp 3ff of the court book (exhibit one). The reasons for claiming protection are set out in that form in answer to questions at pp 29-31 of the court book. The answers are short on detail.

9. The applicant was represented in his Tribunal review by a migration agent. On 27 September 2018, the Tribunal issued a hearing invitation to the applicant. The hearing was scheduled for 25 October 2018. The invitation noted (court book at p 97):

   We have considered the material before us but we are unable to make a favourable decision on this information alone. 

10. The covering letter which accompanied the invitation included a request that the agent provide written submissions setting out all claims made by the applicant together with any witness statements in advance of the hearing: court book at p 95. On 17 October 2018, a Tribunal officer wrote to the applicant’s agent noting the Tribunal had not received any submissions. In bolded letters, the email said (court book at p 103):

    Directly after the hearing the member may hand down an oral decision.

    Consequently, it is important that all information/submissions are submitted a full 7 days before the hearing date.

11. The applicant’s migration agent sent an email in reply that same evening. The email confirmed the agent had been instructed there was no further information to be submitted: court book at p 103.

12. The Tribunal reissued a hearing invitation on 19 October 2018. Nothing turns on that fact.

13. The hearing proceeded on 25 October 2018. It got off to a bad start: the applicant was 30 minutes late. His explanation for the delay plainly irritated the presiding member. Mr GBL18 then answered questions. A transcript of the hearing was not provided in evidence, although I do have a transcript of the oral reasons for decision delivered at the end of the hearing. The Tribunal followed up with written reasons on 19 November 2018 that substantially reflected the oral decision.

    THE TRIBUNAL’S DECISION

14. The Tribunal’s reasons for decision are reproduced in the court book at pp 132ff.

15. The Tribunal commenced its reasons with a summary of the relevant law and the ministerial determination it was required to apply when deciding a protection visa claim. The Tribunal also briefly outlined the applicant’s claim (at [10]).

16. The Tribunal recorded in its reasons that it had asked the applicant whether he had any additional information to provide in circumstances where he had been told there were deficiencies in the information that has so far been provided in support of his claim. The Tribunal said it told the applicant the hearing provided another opportunity to present his case from the beginning. The applicant confirmed he had no further information to provide: [16]-[18]. The reasons for decision then note (at [19]-[20]):

    19.The Tribunal asked why this was the case, given the number of times he had been put on notice about the significance of providing supportive, corroborative evidence to his application through the departmental decision and the Tribunal hearing invitation. He replied he left quickly.

    20.The Tribunal responded by indicating its profound concern that he had brought nothing to the hearing today despite being very much aware of his unsubstantiated claim for protection.

17. The Tribunal noted it thereafter identified the types of documents and evidence it would expect to see in support of his claim. When the Tribunal asked Mr GBL18 why he had not provided documents of that nature, he apparently had no response.

18. Importantly, the Tribunal does not record in its reasons that the applicant asked for an adjournment so he might obtain any of the documents the Tribunal had identified. At the hearing before me, the applicant confirmed he did not ask for an adjournment for that or any other purpose.

19. After noting again (at [25]) that the applicant said he did not have any further information to support his review application, the Tribunal said (at [26]):

    The Tribunal finds that the applicant has made a groundless protection claim. It finds that, notwithstanding the numerous notices of the significance of obtaining supporting corroborative information to his claim over approximately the last year or so, he has not attempted to produce anything to the Tribunal except bland, un-corroborative assertions. …

20. After then identifying examples of the evidence the Tribunal expected the applicant to provide, it concluded (at [29]):

    … based on the non-existent of any information at all being presented to the Tribunal or available on either the departmental or Tribunal files, supportive or otherwise, the claim for protection is not genuine.

21. I note the Tribunal went on to observe (at [32]):

    … It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

22. The Tribunal formally concluded the applicant was not a person who is owed protection obligations under either ss 36(2)(a) or (aa).

    THE GROUNDS OF REVIEW

23. Mr GBL18 filed a timely application for judicial review on 20 November 2018. His application identified four grounds of review. These were:

    1.        The Tribunal failed to afford procedural fairness.

    2.        The Tribunal failed to provide extra time for me to respond.

    3.        The Tribunal failed to consider the surrounding circumstances of my case.

    4.        The Tribunal erred in its findings without supporting evidences.

24. I read out the four grounds at the hearing so they could be translated by the interpreter. I asked the applicant whether he had written the grounds himself, or if he had assistance. I asked the question because it impacted how I would approach the discussion of the grounds.

25. Mr GBL18  insisted at first that he wrote the grounds (albeit they were translated into English by someone else). When I began to ask him to explain what he meant when he set out the grounds, he suddenly claimed to be confused and suggested he had never seen the document before.

26. I decided to allow the applicant some leeway in describing his criticisms of the Tribunal’s decision and decision-making process. To that end, I gave him the opportunity to explain his criticisms in his own words without being confined to the strict letter of the grounds of review that were included in the application.

27. At the outset of the conversation, I explained the role of the Court to the applicant. I pointed out the Court was not able to give him the visa he sought. I told him the question of whether the applicant should get a visa was properly one for the minister and the Tribunal on review. I explained the Court’s role was akin to quality control: the Court reviewed the Tribunal’s decision and decision-making process to determine whether there were any material jurisdictional errors. I briefly explained that concept before we continued to address the individual grounds.

    Grounds one and two

28. It soon became clear Mr GBL18’s principal complaint under grounds one and two was the supposed failure of the Tribunal to give him additional time to provide additional information. This complaint is misconceived.

29. The Tribunal’s obligation to provide procedural fairness is modified so that it will be taken to have discharged its obligation if it complies with the requirements set out in Div 4 of Pt 7 of the Act. Section 422B(1) of the Act provides those requirements are taken to be an exhaustive statement of the natural justice hearing rule.

30. There is no doubt the Tribunal did comply with those requirements. It gave the applicant a timely notice of a hearing and invited the applicant to provide further information. Indeed, the Tribunal provided two hearing invitations and made clear in its correspondence that:

    (a)it was not satisfied it had sufficient information to make a favourable decision in the absence of further information; and

    (b)the applicant should provide further information in advance of the hearing if he wanted it to be considered.

31. The applicant then attended the hearing and was invited yet again to provide information, but he failed to do so. Mr GBL18 confirmed he did not ask for an adjournment at the hearing and there is no suggestion he told the Tribunal he would be able to obtain the information in future if he were given an adjournment.

32. It follows there is no merit to the applicant’s claim that the Tribunal’s decision was procedurally unfair.

33. To the extent the applicant’s complaint is that the Tribunal behaved unreasonably in its failure to exercise the discretion to allow an adjournment pursuant to s 427(1)(b) of the Act, the applicant cannot succeed – most obviously because the Tribunal was not asked to exercise the discretion. Moreover, the Tribunal was under no obligation to invite the applicant to seek such an adjournment, given (as the Tribunal noted at [16]) the applicant already had a full year to provide the information in question and seemed disinclined to assist in any event.

34. Grounds one and two must fail.

    Ground three

35. The third ground is not particularised, and the applicant was unable to explain at the hearing what facts or evidence the Tribunal had failed to consider. The reasons for decision do not suggest on their face that anything provided by the applicant had been missed in the course of the Tribunal’s deliberations.

36. There is an irony in the applicant’s assertion that the Tribunal failed to consider the surrounding circumstances of his case: the Tribunal’s central concern lay in the fact the applicant had failed to provide sufficient information to permit a proper evaluation of his claim. The Tribunal pointed out s 5AAA of the Act made clear it was “the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.” The Tribunal was not satisfied the applicant met that burden. The Tribunal was certainly not obliged to advise the applicant what information he should supply, and the applicant did not ask for an adjournment so he might provide such information in any event.

37. There is no substance to ground three, and it must fail.

    Ground four

38. The applicant was unable to explain this otherwise unparticularised assertion when asked about it at the hearing. The Tribunal’s findings were clearly based on a dearth of evidence. The Tribunal was entitled to reach the view it did given the limited material available. The decision was not unreasonable, and it was adequately explained. This ground of review must also fail.

    Other matters

39. While the applicant did not make this criticism, I considered whether the Tribunal may have misdirected itself when it emphasised the absence of corroborative evidence (e.g. at [16], [18] & [26]). It is a truism that the Tribunal is required to act on evidence. Oral testimony is evidence which can provide a basis for a finding. If the Tribunal were suggesting all claims must always be corroborated by documents or other objective evidence, that would be an error.

40. I am satisfied a fair reading of the Tribunal’s reasons confirms the Tribunal’s was not making a categorical claim to that effect. It detailed the sort of information the Tribunal expected would be available and which would ordinarily have been provided as part of a process of particularising the claim. Its criticism of the applicant’s case was not so much that the applicant’s account was uncorroborated; rather, the problem was that the applicant’s claim was not particularised so the Tribunal had insufficient evidence – corroborated or otherwise – to make the findings which the applicant sought.

    CONCLUSION

41. For those reasons, the application for judicial review is dismissed.

42. I invited the parties to make submissions as to whether a costs order should be made which followed the event. Ms Giannopoulos, for the minister, said in the event the applicant was unsuccessful, a costs order should be made against him. She proposed a fixed costs order in that event in the amount of $5,600. She noted that amount was less than the amount provided in the scale, but said that sum reflected the amount of work done on the file. The applicant was concerned that he could not afford to pay that amount if a costs order were made.

43. I am satisfied it would be appropriate to make an order for costs in circumstances where the minister has had to expend public monies in defending the proceedings. I accept a fixed costs order in the amount of $5,600 is appropriate in the circumstances. While I acknowledge that is a burden for the applicant, his lack of resources is not a good reason for withholding costs from the minister.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

Associate:

Dated:       17 January 2025