Lamichhane v Minister for Immigration
[2019] FCCA 3139
•7 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAMICHHANE v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3139 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Partner visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa – applicant needed to satisfy Criterion 3001 of Schedule 3 to the Migration Regulations 1994 (Cth) but did not – Administrative Appeals Tribunal was not satisfied there were compelling reasons not to apply Criterion 3001 – Administrative Appeals Tribunal nevertheless failed to provide adequate reasons for its findings and so its decision was legally unreasonable and lacked a intelligible justification – decision of Administrative Appeals Tribunal affected by jurisdictional error – application for constitutional writs of certiorari and mandamus granted. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 368, 430 Migration Regulations 1994 (Cth) |
| Cases cited: AGD15 v Minister for Home Affairs [2019] FCA 896 Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 |
| Applicant: | PRAMILA LAMICHHANE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 872 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 1 November 2018 |
| Date of Last Submission: | 22 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. R. Young of Counsel |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the First Respondent: | Mr N. Swan of Counsel |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The decision of the Second Respondent made on 23 February 2017 affirming the decision of the Delegate of the First Respondent made on 30 April 2016 not to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa is quashed.
The Second Respondent is to determine according to law the Applicant’s application for review of the decision of the Delegate of the First Respondent made on 30 April 2016 not to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 872 of 2017
| PRAMILA LAMICHHANE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a female citizen of Nepal aged 30 years, having been born on 16 April 1989, and a Hindu by religion.
By Amended Application filed in Court on 1 November 2018 she seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 23 February 2017 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 30 April 2016 refusing to grant to her a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) and a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa, and collectively Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act).
Background
The Applicant arrived in Australia on 15 July 2009 on a Student (Class TU) (Subclass 572) visa (Student visa) which ceased on 16 or 17 November 2011, the evidence not being consistent in this respect. The Student visa was the last substantive visa held by the Applicant and following its cessation she remained in Australia as an unlawful non-citizen until 4 December 2012.
The Applicant applied for a further Student visa on 4 December 2012 and a Delegate refused that Student visa application on 20 February 2013. She then sought merits review of that decision with the Migration Review Tribunal (MRT) on 7 March 2013 and on 11 November 2013 the MRT affirmed the decision of the Delegate not to grant to her a Student visa.
The Applicant then lodged Partner visa applications on three separate occasions, which applications were all found to be invalid. On 16 October 2015 she lodged a valid application for the Partner visa which is the subject of this proceeding.
The present Partner visa application was based on the Applicant being in a spousal relationship with an Australian citizen, Mr Merhab Uddin (the sponsor) whom she married on 30 May 2015. He had been born on 17 March 1984 and is of the Muslim religion.
I note that the grant of a Partner visa comprises a two stage process because the effect of cl.801.221(1) of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations) is to prescribe that at time of decision for the permanent Partner visa the relevant applicant is already the holder of a temporary Partner visa.
The Applicant lodged a number of supporting documents with her Partner visa application. Notably, she provided a Statutory Declaration declared on 3 September 2015 (first Statutory Declaration) in which she relevantly stated that:
a)she married her former husband (Mr Pandey) on 8 December 2008 when she was only 19 years of age in Nepal and which marriage was arranged by her family. She was put under pressure by her family to accept the marriage with Mr Pandey;
b)her marriage with Mr Pandey broke down due to irreconcilable personal differences and she separated from him on 15 July 2009;
c)her parents strongly opposed her separation and told her she had no place in their home if she ever divorced Mr Pandey. Her family told her that they could not deal with the shame that she would bring if she returned home as a divorced woman of such a young age. She was advised by her family that she had to listen to Mr Pandey and sort out her problems with him and not seek a divorce;
d)she has known the sponsor since 2011 as they both lived in shared accommodation in Sydney;
e)at the time the Applicant and sponsor met in 2011 the sponsor was in a relationship with another woman which was not a happy one;
f)she divorced Mr Pandey in Australia on 12 August 2012;
g)the sponsor departed the shared accommodation in Sydney in 2013 and the Applicant and the sponsor maintained contact with each other by phone calls and Facebook messages;
h)the sponsor broke up with his former girlfriend in December 2014 and then proceeded to ask the Applicant on a date a few days afterwards in January 2015;
i)both she and the sponsor went on a series of dates during the period of January 2015 to March 2015; and
j)they both then proceeded to make the necessary legal arrangements to be married, as they were, on 30 May 2015.
In her first Statutory Declaration the Applicant further stated that she understood that her residential status in Australia was unlawful and she submitted the following compelling reasons:
a)she lost her family home in Nepal during an earthquake on 25 April 2015 and she is not aware of her parents’ current whereabouts;
b)she has married a Muslim man without her parent’s consent and against their opposition to divorce her ex-husband and marry the sponsor, despite having been born and raised in a strictly Hindu family;
c)she has not had any communication with her parents since April 2015 when she told them about her decision to marry the sponsor;
d)she no longer has a place to live in Nepal as her parents have already disowned her because of the decision to abandon her religion, marry a Muslim man and her intention to convert to Islam; and
e)she fears leaving Australia and applying for an offshore Partner visa in Nepal because she has no place to live on her own and will not be able to cope on her own without the support of her husband or family.
(emphasis added)
Statutory Provisions Relevant to Partner Visa Applications
As at the date of application the Applicant had to satisfy cl.820.211 of Sch.2 to the Regulations. Relevantly, cl.820.211(1) and (2) provided as follows:
820.211
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or
(ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa—either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
(emphasis added)
As noted in [3] above, the Applicant’s last substantive visa ceased on 16 or 17 November 2011. As she thus did not hold a substantive visa at the time of application for the temporary Partner visa she had to satisfy Criterion 3001(1) of Sch.3 to the Regulations, which relevantly required her to have made her application within 28 days of 16 or 17 November 2011, being namely by either 14 or 15 December 2011. However, she made her valid Partner visa application on 16 October 2015, some 3 years and 11 months too late. Accordingly, it was necessary for her to establish to the satisfaction of the Minister that there were “compelling reasons” for not applying Criterion 3001: see cl.820.211(2)(d)(ii). This was common ground at the hearing in this Court when Mr J.R. Young of Counsel appeared for the Applicant and Mr Swan of Counsel appeared for the Minister.
I note that the criteria comprising Sch.3 to the Regulations impose restrictions on unlawful non-citizens who apply onshore for residence, relevantly here on spousal grounds, rather than leaving Australia and applying from overseas.
Decision of Delegate
By letter dated 19 January 2016 the Department of the Minister invited the Applicant to provide further information regarding her Partner visa application, in which the requirement that Criterion 3001 be satisfied was raised, and for waiver of which compelling reasons were invited to be submitted. The Applicant’s registered migration agent responded on 4 March 2016 by submitting additional evidence.
In her Decision Record the Delegate first recorded that she was not prepared to make an assessment of whether or not the Applicant and the sponsor were in a genuine and continuing married relationship because the documentary evidence provided by the Applicant indicated that they were married on 30 May 2015, but did not demonstrate that they started residing together until early 2016.
The Delegate reasoned that, even if she had accepted that the Applicant and the sponsor were in a genuine spousal de facto relationship, she was not satisfied that there were compelling reasons which satisfied her that Criterion 3001 should be waived, on the following grounds:
a)the Delegate did not accept that the Applicant would not be able to lead an independent life if she returned to Nepal, and if she had a genuine fear for her safety she did not have to return to the community in which she had previously lived;
b)the option to apply for a Protection (Class XA) (Subclass 866) visa had been available to the Applicant at any time after she had commenced her relationship with the sponsor if she had a genuine fear for her safety in Nepal as a result of her family’s reaction to her marriage;
c)the Applicant had resided in Australia unlawfully for nearly two years up to 16 October 2015 and had married the sponsor whilst residing unlawfully. The Delegate did not consider it the intention of Criterion 3001 “to facilitate those who have resided unlawfully in Australia while awaiting the circumstances that would enable them to lodge a Partner visa onshore” and the Applicant’s immigration history did not provide a reason to waive Criterion 3001.
In the result, the Delegate refused the application for the grant of the temporary Partner visa, which meant that pursuant to cl.801.221(1) of the Regulations the Applicant also did not meet the criteria for the grant of the permanent Partner visa.
Tribunal Decision
The Applicant, through her new registered migration agent and solicitor (solicitor), lodged an application for merits review with the Tribunal on 20 May 2016 and provided a copy of the Decision Record of the Delegate to the Tribunal at that time.
The solicitor, by letter dated 7 February 2017, made submissions (solicitor’s submissions) to the Tribunal which included the following verbatim claims:
[5]Moreover, the Applicant would and will face significant harassment, torment and difficulty if she returns to Nepal. This torment would stem from her parents, family and Nepali society at large. The Applicant's parents would never have accepted her marriage because they are in a society where familial honour and religiosity are crucial and unquestionable. Furthermore, Applicant's Parents have already disowned her on the basis of divorce from her previous relationship and her current marriage to a Muslim man.
[6]The Applicant has advised us that Hindu society is very conservative towards relationships between people of different religion. Nepali society completely rejects inter-religious relationships and the parties involved are subject to social punishment. Society will take every possible action to separate a couple entered inter-religious marriage. They also fear of being persecuted by the society .for entering into inter-religious relationship. The Hindu society is very cruel against inter-religious relationship. The applicant fears that she will be persecuted by Hindu Fundamentalist society for entering into inter-religious relationship.
[7]The Applicant has instructed that she lost her family home in Nepal during Earthquake on 25 April 2015 and she is not aware about parent's current whereabouts. Moreover, there is no communication between the Applicant and her parents since April 2015 when she told them her decision to marry the sponsor, who is a Muslim. Consequently, the Applicant's parents have disowned her on abandon Hindu religion and convert to Islam.
…
[14]We submit that the Applicant has previously faced extreme societal and familial pressure and torment based upon the nature of the marriage and it would be detrimental to her mental and emotional health if the Applicant is forced to return to Nepal and face her parents and society.
…
[24]For the reasons mentioned above and pursuant to the cases mentioned above, we submit the reasons why the Applicant cannot return to Nepal to process offshore Partner Visa application are forceful and compelling. This situation becomes more difficult because the Applicant has nowhere to live in Nepal and cannot cope up with a life on own without the support of husband and parents.
(emphasis added)
By email dated 13 February 2017 the solicitor sent further documents to the Tribunal, including a further Statutory Declaration of the Applicant declared on 2 February 2017 (second Statutory Declaration) which reiterated her claims of not being able to live in Nepal because she had been disowned by her parents for having married the sponsor, who was a Muslim, and her continued fear of being prosecuted by Nepalese society for entering into an inter-religious relationship. The solicitor also forwarded at the same time a Statutory Declaration of the sponsor declared on 3 February 2017 (sponsor’s Statutory Declaration), which included the following paragraphs:
[4]Once our relationship started, Pramila told me that she will have to face a social and religious problem because of our marriage. When asked she told me that the relationship between a couple from different religion is not accepted in her home country. I have also done some research on this and found that the couple from different religion are subject to persecution. In most of the case the couple is displaced.
[5]My wife also tried to convince her parents about our relationship. Her parents did not accept our relationship. Most recently, her parents are totally out of contact with her.
[6]I say that my wife will face social rejection and she will be prosecuted by the society for entering into an inter-religious relationship.
The Applicant then appeared before the Tribunal on 17 February 2017 to give evidence and present arguments, together with her solicitor and with the assistance of an interpreter in the Nepali and English languages. The sponsor also gave evidence at the Tribunal hearing. The Tribunal hearing record establishes that the Tribunal hearing extended over a period of two hours.
From [8] – [12] of its Decision Record the Tribunal held that the Applicant needed to, but did not, satisfy Criterion 3001. From [13] – [18] the Tribunal recorded the background to and nature of the claimed spousal relationship between the Applicant and the sponsor and their marriage on 30 May 2015.
At [21(A) – (N)] of its Decision Record the Tribunal summarised the solicitor’s submissions and recorded its consideration and findings in relation to those submissions in further subparagraphs identified by Roman numeral (i). The relevant parts of [21] were as follows:
[21]In submissions dated 7 February 2017, which attached other evidence including photographs of the parties together and with others and also updated personal relationship statements and bank statements, the following compelling reasons were given, A to [N] below – the Tribunal’s consideration of each claim is noted at roman numerals i.:
A)…
B)At the time of lodging the partner visa application, around August 2015, the applicant considered returning to Nepal to lodge the application, but claims she had a strong and well-founded fear of social and familial stigma, harassment and abuse for entering an inter-religious marriage.
C)The applicant is a Nepali Hindu, and there is a strong taboo and social stigma towards inter-religious and inter-caste marriage – boundless dishonour, embarrassment, degrading harassment and torment associated with such relationships – and the applicant is therefore unwilling to return to Nepal.
D)The applicant’s Nepali parents, family and society at large would cause the applicant to suffer significant harassment, torment and difficulty if she had to return to Nepal.
E)Hindu society in Nepal is very conservative towards relationships between people of different religions and such couples are subject to social punishment and family and society will try to separate the parties. The applicant fears she will be persecuted by the Hindu Fundamentalist society for entering into an inter-religious relationship.
F)The applicant fears for her life if she travels to Nepal.
G)…
H)…
I)The compelling reasons claimed by the Applicant go beyond whether the parties are in a genuine spousal relationship and are concerned with the consequences of their relationship and their differing social, ethno-religious status and recognition in Nepal.
i.With reference to B – I, the applicant has provided no reliable evidence to support the claimed possible persecution and hardship she will suffer in Nepal if she goes there. If the applicant is required to travel offshore to lodge her partner visa application, the requirement is only that she is offshore (and not onshore) when she lodges the application and, if the application is successful, that she is offshore when the visa is granted. Citizens of Nepal have a legal right to live, work and access health services in India, under the Treaty of Peace and Friendship Between the Government of India and the Government of Nepal (the Treaty). The claim that there are forceful reasons has been considered, but the claim is based on circumstances that might arise if the Applicant returns to Nepal. The fear of returning to Nepal is not considered a compelling reason, as there I not a requirement that the applicant must return to Nepal to lodge her application.
(emphasis added)
J)The applicant lost her family home in the 24/05/2015 earthquake and is not aware of her parents’ current whereabouts. She has had no communication with her parents since April 2015 when she told them she intended to marry a Muslim and therefore will not have family support if she returns to Nepal.
K)…
L)The applicant has faced previous extreme societal and familial pressure and torment based on the nature of the marriage and it would be detrimental to her mental and emotional health if she had to return to Nepal and face her parents and society. The parties claim that the sponsor needs the applicant to care for him at home because of his medical conditions, including psoriatic arthritis.
i.No reliable documentary evidence has been provided that the applicant's family or society in general have placed pressure on her or tormented her…
(emphasis added)
M)…
N)…
Relevantly, the Tribunal concluded at [22] of its Decision Record as follows:
[22]The basis of the claim of compelling reasons, as has been mentioned above, centres around the applicant's inter-religious marriage to the sponsor which would prevent her from returning to Nepal without suffering significant harm and hardship, and that she has a well founded fear that this will happen to her if she goes to Nepal. For the purpose of this review, the Tribunal notes that the applicant is not required to return to Nepal, as has been discussed at length in this decision. The Tribunal has considered the evidence as a whole, including the applicant's period of unlawfulness and that she was knowingly onshore unlawfully, although not giving undue weight to it, and is not irresistibly satisfied, having considered all facts and matters, that there are compelling reasons for waiving the Schedule 3 criteria.
Accordingly at [24] of its Decision Record the Tribunal found that the Applicant did not meet cl.820.211(2)(d)(ii) of the Regulations and at [25] affirmed the decision of the Delegate not to grant the temporary Partner visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
At the hearing Mr Young was granted leave to file the Amended Application over the opposition of Mr Swan, but only pressed Grounds 1 to 4, which are as follows:
1.The Second Respondent made jurisdictional error by failing to consider relevant considerations, namely, the reasonableness, practicality and any adverse consequences of the Applicant residing in India for the period from lodgement of application until determination of that application.
2.The Second Respondent made jurisdictional error by denying the Applicant procedural fairness or alternatively by acting in contravention of s 360 of the Migration Act 1958 by failing to raise with the Applicant any issue about whether she could live in India during the period of application.
3.The Second Respondent made a decision which was unreasonable by assuming that a legal right to live in India was sufficient to answer the Applicants claims based upon what would occur if she was forced to return to Nepal without giving consideration to any of the circumstances that might arise if she was living in India.
4.The Second Respondent made jurisdictional error by making a finding upon which there was no evidence or alternatively in respect to which it considered no evidence or alternatively without any active intellectual process in finding that citizens of Nepal have a legal right to live, work and access health services in India.
However, at the hearing it transpired that discussion and submissions focussed and centred on arguments of Mr Young that were pendent upon the Grounds and his Written Submissions, and were to the inter-related effect that:
a)the Tribunal had not given any reasons, made any findings or made any proper findings in relation to the claim that the Applicant would suffer significant harassment, torment and difficulty if she were to return to Nepal, from her parents, family and Nepalese society at large, Mr Young submitting:
MR YOUNG: … it’s patently obvious that the tribunal did not reject or make any decision in relation to her claim to fear persecution in Nepal. Rather, it said, “Don’t need to decide this because there is no requirement that you must return to Nepal to lodge your application” (at TP10.16 – 10.19); and
b)the Tribunal was legally wrong to find that the Applicant had a “legal right” to go from Australia to India without the need to return to Nepal, where in India she could then lodge an offshore Partner visa application, but merely asserted that supposed legal right without giving any basis or reasons, Mr Young submitting:
MR YOUNG: Now, really, this amounts to a, sort of, out flanking by the tribunal. The tribunal says, “Well, we heard everything. It’s all based on going to Nepal. You can go to India.” (at TP15.35 – 15.37);
MR YOUNG: There is no right whatever, under the [Treaty of Peace and Friendship Between the Government of India and the Government of Nepal] or administrative arrangements that had been referred to in those cases, of a person from Australia to enter India unrestricted. That’s a matter which those cases are just not concerned with. That would be the critical issue here because what is really being said is that it’s not from Kathmandu to Delhi, it’s from Sydney to Delhi. Now, that is a bridge too far, because there’s nothing about the treaty that even – Buchanan J says there’s no right of entry from Nepal to India.
The question of entry is dealt with by administrative arrangements. So what you have in these 36(3) cases, what you need is a combination of the treaty which deals with the situation once you are in the country and the administrative arrangements which apply to deal with the question coming from Nepal into India. This is a different question altogether, so what one would have to look at is either saying, “Well, you should go to Nepal, then to India.” (at TP24.10 – 24.23); and
MR YOUNG: [The Tribunal] has not made a finding. It has not. And the requirement under section 368 are that it sets out the decision of the tribunal, it sets out the reasons for the decision, it sets out the findings on any material questions of fact. Now that one there, there could hardly be a more significant question of fact than this one, given that it is the applicant’s whole case. The tribunal’s finding on that is that unnecessary to decide anything that you say in relation to Nepal because you can go to India. That’s the finding of fact in relation to that issue. (at TP60.16 – 60.22)
Consideration
At the hearing Mr Young made his submissions in support of the four Grounds together and collectively, and suggested that they should be considered together. It is appropriate to treat his submissions recorded at [26] above as also constituting Grounds.
In my view the decision of the Tribunal is affected by jurisdictional error and ought be set aside and the application for merits review remitted for reconsideration, for the reasons that follow.
First, in my view the Tribunal has failed to give any reasons in explanation or support of its conclusion that “the applicant has provided no reliable evidence” and had not provided “reliable documentary evidence” to support her claim of persecution and hardship by her family and society in general if she were to return to Nepal.
What appears to have happened is that the Tribunal was diverted from properly and meaningfully considering the Applicant’s chief compelling reason for waiver of Criterion 3001, namely that she would suffer harm if she were to return to Nepal, by turning to and finding that she did not have to return to Nepal at all, but could return to India from Australia and make an offshore application for a Partner visa from there.
However, upon making its decision the Tribunal was required to provide, pursuant to s.368 of the Act, a “written statement” addressing the matters set out in s.368(1). The relevant principles concerning the Tribunal’s obligation under s.368(1) (by reference to the analogue provision, s.430(1)) were recently summarised by Anderson J in AGD15 v Minister for Home Affairs [2019] FCA 896 at [36] – [37], as follows:
[36]As explained by French CJ and Kiefel in Minister for Immigration and Citizenship v SZUGR [2011] HCA 1; 241 CLR 594 (SZUGR) at [32], s 430(1) presupposes a logical structure to the Tribunal’s reasoning which involves the following steps:
(a)identification of the relevant evidence or material upon which findings of fact can be based;
(b)making findings of fact based on the relevant evidence or material; and
(c)reasoning to the decision by application of the relevant legal principles to findings of fact, both primary and inferential.
[37] A key aim of provisions such as s 430(1) is to enable a Court undertaking a process of judicial review to discern the manner in which and the basis upon which the administrative decision was made: Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522 at [34]. See also Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362 (SZLSP) at [92], [95]–[96]. It also provides the parties with justification for the Tribunal’s decision. As such, in this case, the discharge of the Tribunal’s duty under s 430(1)(b) was aimed at explaining to the applicant and the Minister why the Tribunal was not satisfied that the applicant did not satisfy a criterion for the grant of a Visa: see SZNNQ v Minister for Immigration and Citizenship [2010] FCA 376 at [28].
In this case the totality of the Tribunal’s written statement under s.368(1) rejecting the Applicant’s claim to fear harm upon her return to Nepal was the ipse dixit conclusion that the Applicant had provided “no reliable evidence” and “no reliable documentary evidence” to support this claim: see [22] above.
In support of her claim to fear harm in Nepal the Applicant had submitted to the Tribunal two Statutory Declarations of her own, a Statutory Declaration from the sponsor and the solicitor’s submissions, all of which made and supported her claim to fear harm in Nepal. It is inevitable and I infer that during the two hour hearing before the Tribunal this claim was reiterated and confirmed. However, none of that body of claims and evidence in connection with suffering harm in Nepal is given “proper, genuine and realistic consideration” in the Decision Record of the Tribunal. In my view the Tribunal had to make findings or give reasons for its assertion and conclusion that the Applicant had not provided reliable evidence in this connection. It was necessary for the Tribunal to explain and support its conclusion.
The present case is similar to that considered by Gordon J in SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 (SZLGP), where the Tribunal in its decision had used expressions such as that it was “unconvinced”, “not persuaded” and “not convinced” of various facts. It was submitted on behalf of the applicant that the Tribunal had failed in its decision to properly and fairly address significant evidence. In the result her Honour set aside the decision of the Tribunal, finding that the Tribunal had not “provided fully and carefully expressed reasons for its decision” and had not acted “judicially” in properly articulating rationally and logically its determination and decision: see SZLGP at [24] and [25].
Another similar case was Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362, where the Tribunal in its decision failed to refer to any material in support of its finding that the respondent’s answers to questions concerning his knowledge of Falun Gong were incorrect. The decision of the Tribunal was set aside by majority in the Full Court of the Federal Court, with Kenny J stating at 384 – 385 [72] as follows:
[72]…On the face of the Tribunal’s written statement, the Tribunal’s conclusion that the first respondent’s answers were not correct was not grounded in probative material and logical grounds. That is, the statement does not disclose any material by reference to which a rational decision-maker could have evaluated the first respondent’s answers; no such material can be found in the record; and no other logical basis justifies the Tribunal’s finding. In these the circumstances, it is appropriate to infer that the Tribunal’s decision-making was arbitrary and irrational such as to constitute jurisdictional error. In support of validity, the Minister could only speculate as to the nature and existence of purportedly probative but unidentified and unidentifiable material, an approach antithetical to that of s 430 of the Migration Act. Accordingly, the Federal Magistrate did not err in finding jurisdictional error.
Rares J, who agreed with Kenny J that the decision of the Tribunal should be set aside for jurisdictional error, said at 390 [98]:
[98] ...Where the tribunal fails to comply with the requirements of s.430(1) [the analogue to s.368(1)] and it is not possible to be satisfied that its written statement had a proper basis, the Court can infer, safely, that the tribunal constructively failed to exercise its function of review.
Earlier in the Federal Court decision of SZEJF v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 724, in circumstances in which the Tribunal had rejected claims merely on the basis that they were “somewhat implausible”, Rares J stated as follows at [38] – [40] and [43] – [44]:
[38] In exercising its function of conducting a review of a decision under s 414(1) of the Act, the tribunal cannot simply act perfunctorily. Nor can it shut its ears or eyes so as to ignore, consciously or inadvertently, the claims made by the applicant for review (cf: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24]–[25] per Gummow and Callinan JJ, 406–407 [86]–[87] per Kirby J, 408 [95] per Hayne J).
[39] In arriving at what it considers to be the correct or preferable decision (Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18) at the conclusion of its review under ss 414(1) and 415 of the Act, the tribunal must give ‘proper, genuine and realistic consideration to the merits of the case’ (Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J, Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration v Yusuf (2001) 206 CLR 323 at 367 [138] per Kirby J.
[40]So, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 223–224 [39] Gleeson CJ, Gummow and Heydon JJ referred to the inference which is open to a court exercising the function of judicially reviewing a decision of the executive government that if the decision-maker does not give any reason for his or her decision the court may be able to infer that he or she had no good reason.
…
[43]The tribunal said that ‘it consider[ed] it somewhat implausible that the Jirga members might even have been aware of’ the existence the appellant’s group. The newspaper article of 10 November 2002 was evidence that the tribunal had before it which described both him and, the group, Llawyl, by name. The tribunal made no finding that the newspaper article was not genuine or otherwise. The tribunal was required by s 430 of the Act to express reasons as founding its decision, why it was ‘somewhat implausible’ that the Jirga was aware of the appellant’s group. Yet according to the express words of the newspaper article the Jirga, had in fact, made the very connection. The tribunal merely asserted, without referring to any basis in the evidence before it, that it, the Tribunal, found it ‘implausible’ or unbelievable that the Jirga made the connection it was reported to have made. This ignores the fact reported, namely that the Jirga did just that. There was no reasoning process by the tribunal for doubting this, let alone one based on any evidence.
[44]Whether or not the tribunal would have made the connection were it in the place of the Jirga is entirely irrelevant to its task. The tribunal was required to consider the appellant’s claim which was supported by the newspaper reports of the Jirga having made the connection, then banishing the appellant and calling on his family to explain itself. While the tribunal was not bound to accept such a claim, it was obliged to give reasons, not mere assertions, for rejecting it.
In my view, the decision of the Tribunal ought be set aside for jurisdictional error because it has failed to articulate any reasons at all for its finding that the Applicant had failed to provide “reliable evidence” in relation to her claim to fear harm in Nepal and because of that failure the decision of the Tribunal lacks an intelligible justification and is legally unreasonable. Further, the Tribunal’s failure establishes that it has constructively failed to exercise its review function.
However, there is a further problem with the Tribunal’s decision in its conclusion that the Applicant could simply immediately return from Australia to India because as a citizen she had “a legal right to live, work and access health services in India” under the Treaty. Once again, this finding is stated as a mere conclusionary assertion unsupported by any reference to the terms of the Treaty itself or independent country information supporting the Tribunal’s conclusions. I note that it was the Tribunal that first raised the issue of residence in India, because it had never been suggested by the Applicant that she could go to India and the Delegate never made any such suggestion.
Usually, of course, the Treaty is considered in the context of Protection visa applications and s.36(3) of the Act. Nevertheless, I consider that in considering compelling reasons for the waiver of Criterion 3001 the Tribunal might here have rationally considered as relevant the legal right of the Applicant to travel offshore and to live in a country from which she might make an offshore Partner visa application. However, once again the Tribunal merely made an assertion that the Applicant had such a legal right to reside in India without reference to any basis or reason for the assertion.
In an Australian court of law, foreign law is a question of fact to be proved by expert evidence and can relate to both the content of the foreign law and to an extent to the application of the foreign law to the facts of the particular case: Neilson v Overseas Projects Corporation of Victoria Ltd and Anor (2005) 223 CLR 331 at 370 [115] and 371 [119] – [120]. No attempt was made to lead expert evidence in this Court to the effect that the assertion of the Tribunal in this regard was correct. The Tribunal was not bound by the rules of evidence: s.420 of the Act. There was no requirement for the Tribunal to have expert evidence of foreign law in connection with the Treaty and it could have relied upon independent country information to support its assertion, but no reference is made to any such country information. The Treaty is not in evidence before me, but from the following passage of the judgment of Buchanan J (agreed in by Tracey, Robertson and Griffiths JJ) in the decision of the Full Court of the Federal Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35 at 54 [88] it may well be that the Treaty is only applicable where a citizen of Nepal is within India or a citizen of India is within Nepal:
[88]However, on the facts found by the RRT no right of entry appears to arise from the terms of the Treaty itself. There is certainly no legally enforceable right arising from the terms of the Treaty, but neither does the Treaty refer in terms to any entitlement of entry which would satisfy the test expressed in V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408. The rights given by the Treaty which appear to satisfy that test are the rights arising from the mutual covenants in Article 6 and Article 7. Article 7 articulates a right of residence, but it assumes that a citizen of one country is in the territory of the other. The arrangements at the border, whereby entry from one country to another is permitted generally upon satisfactory proof of identity, appear to be the result of administrative arrangements, rather than arising directly from the terms of the Treaty. In other words, the Treaty itself does not appear to give rights of entry. If the administrative arrangements for entry (even though they appear intended to facilitate the operation of the Treaty) do not satisfy the test in V856/00A, then the composite test in s 36(3) will not be satisfied either. That is a question which should not be decided in the present appeals. The possibility adverted to by Stone J in Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154 at [60] is one which requires evaluation applying the proper test. That evaluation should be made by the RRT which will, if it chooses to do so, be in a position to seek further information relevant to the correct test to be applied.
(emphasis added)
However that may be, the simple fact of the matter is that the Tribunal’s decision suffers from jurisdictional error in failing to give any reasons at all for its conclusion that the Applicant could automatically go from Australia to India and legally reside there without first returning to Nepal and there is no intelligible justification for its assertion that she could do so. There is an added vice to its failure in this regard, because the Tribunal used its conclusion that the Applicant could immediately travel to India as the basis for not considering her claims to fear harm if she were to return to Nepal.
Conclusion
The Tribunal’s decision in relation to the Applicant’s claim to fear harm upon her return to Nepal and that she had a right to travel from Australia to India without returning to Nepal is not logically based on probative evidence and does not have an intelligible justification. The Tribunal has constructively failed to carry out a merits review of the decision of the Delegate. Accordingly its decision must be set aside, and I will make orders to that effect.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 7 November 2019
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