MZZZW v Minister for Immigration and Border Protection

Case [2015] FCAFC 133

FEDERAL COURT OF AUSTRALIA

MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133

Citation: MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133
Appeal from: MZZZW v Minister for Immigration [2015] FCCA 440
Parties: MZZZW v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number: VID 202 of 2015
Judges: TRACEY, MURPHY AND MORTIMER JJ
Date of judgment: 16 September 2015
Catchwords:

ADMINISTRATIVE LAW – appeal from Federal Circuit Court decision dismissing application for review of Tribunal decision – Tribunal decision featured substantial copying of passages from quashed earlier decision of differently constituted Tribunal in respect of the same applicant – copied passages included findings as to individual circumstances and credibility – requirement in merits review to consider application afresh – constructive failure by Tribunal to discharge its statutory task

MIGRATION – appeal from Federal Circuit Court decision dismissing application for review of Tribunal decision – whether failure to provide information in breach of Migration Act 1958 (Cth) s 424A – whether Tribunal on review may have regard to quashed earlier decision in respect of the same applicant and visa application

MIGRATION – meaning of “not available” in Migration Act 1958 (Cth) s 422(1)(b) – whether Tribunal member unavailable in a practical and personal sense – not extending to member precluded from being constituted by order of a superior court that the Tribunal be differently constituted on remitter

Legislation:

Migration Act 1958 (Cth) ss 36(2)(aa), 416, 416(d), 420, 421, 421(1)(b), 422, 422A, 424(1), 424A, 430, Pt 7
Federal Court Rules 2011 (Cth) rr 4.12, 36.03(a)

Convention relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954)  
Cases cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trade Union of Australia [1937] HCA 9; 47 CLR 1
AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; 189 FCR 494
Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408
Chu Sing Wun v Minister for Immigration and Ethnic Affairs [1997] FCA 99; 47 ALD 538
Grant v Repatriation Commission [1999] FCA 1629; 57 ALD 1
Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21; 170 ALR 575
Herijanto v Refugee Review Tribunal [2000] HCA 16; 170 ALR 379
Huluba v Minister for Immigration and Ethnic Affairs [1995] FCA 1561; 59 FCR 518
Lek v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 297; 43 FCR 100
LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 136 ALD 547
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507
Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223
Minister for Immigration and Ethnic Affairs v Wu Shan…

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MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133
Case
[2015] FCAFC 133
Decision Date

CaseChat Overview and Summary

In MZZZW v Minister for Immigration and Border Protection, the Federal Court was called upon to review a decision of the Administrative Appeals Tribunal (AAT) in a case involving an appeal against the refusal of a protection visa to a young Sri Lankan man of Tamil ethnicity. The appellant, represented as "W," had applied for a protection visa following his arrival in Australia by boat, citing fears of persecution based on his Tamil ethnicity and alleged past association with the Liberation Tigers of Tamil Eelam (LTTE). The AAT had previously affirmed a decision by a delegate to refuse the visa, and following a judicial review, the Federal Circuit Court had set aside the initial AAT decision on the basis of jurisdictional error. On remitter, the AAT again affirmed the delegate's decision, prompting the appellant to seek further review by the Federal Court.

The central legal issues in the appeal revolved around the AAT's handling of the review on remitter. Specifically, the court had to determine whether the AAT's decision, which appeared to substantially copy passages from a previous decision by a differently constituted AAT panel in respect of the same applicant, was legally sound. The copied passages included findings on credibility and individual circumstances, raising concerns about the AAT's failure to consider the application afresh as required by the law. Additionally, the court examined whether the AAT's reliance on the earlier decision constituted a breach of statutory obligations under the Migration Act 1958 (Cth).

The Federal Court held that the AAT's decision was flawed due to its substantial copying of the earlier decision, which indicated a constructive failure to properly exercise its statutory task. The court emphasized that a merits reviewer must bring their own independent mind to the task, and the use of another panel's findings without proper attribution or disclosure failed to meet this standard. The court found that the copied passages, including those concerning findings on the appellant's credibility and individual circumstances, meant that the AAT did not adequately discharge its obligation to review the matter afresh. Consequently, the court set aside the AAT's decision and remitted the matter to the AAT for reconsideration by a differently constituted panel.

In conclusion, the court allowed the appeal, set aside the orders of the Federal Circuit Court, and remitted the matter back to the AAT for a proper review. The court also granted an extension of time for filing the appeal and ordered the Minister to pay the appellant's costs associated with the extension and the appeal. The decision underscores the importance of independent review and the need for tribunal members to avoid reliance on previous decisions without proper consideration and attribution.

Orders

Orders of the court

1. The name of the second respondent be amended from Refugee Review Tribunal to Administrative Appeals Tribunal and the title to the proceeding be amended accordingly.

2. The time in which an appeal from the orders and decision of the Federal Circuit Court may be filed is extended to 17 April 2015.

3. The appeal be allowed.

4. The orders of the Federal Circuit Court made on 27 February 2015 be set aside and in lieu thereof, the decision of the Refugee Review Tribunal made on 31 January 2014 be set aside.

5. The application for review dated 19 December 2012 be remitted for determination by the Administrative Appeals Tribunal, differently constituted, according to law.

6. The first respondent pay the appellant’s costs of and incidental to the application for extension of time and appeal, on and from 20 May 2015.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

Background

Background to the litigation

For the reasons set out below, the extension of time will be granted and the appeal will be allowed. Since we have granted an extension of time we use the term “appellant” rather than “applicant” in these reasons. BACKGROUND AND PROCEDURAL HISTORY The appellant is a young Sri Lankan man of Tamil ethnicity. The appellant and his older brother arrived in Australia together by boat on or about 21 May 2012 and applied for protection visas on 20 September 2012. At the time, the appellant was still a minor. Protection visas were refused by the same delegate of the first respondent in separate decisions on 14 December 2012 in respect of the appellant and his brother. On 21 December 2012, both the appellant and his brother sought review by the Refugee Review Tribunal of those decisions. At the hearing of the appeal, counsel for the appellant and his brother referred to their clients as “W” and “G”. So as to avoid any confusion in these reasons, and given we cannot use their names, we propose to do the same. In these reasons we shall generally refer to the appellant as “the appellant” and his brother as “G”. The appellant and G both appeared before the Tribunal constituted by Member Corrigan on 25 February 2013 and on 8 May 2013. The appellant’s claims centred on his Tamil ethnicity. He claimed to fear persecution by the Sri Lankan authorities, as well as non-state actors uncontrolled by the authorities (such as the “grease devils”) on the basis of his Tamil ethnicity, or on the basis of suspicion that he was associated (now or in the past) with the LTTE. He also claimed to fear persecution on the basis of his membership of a social group of “failed asylum seekers” if he were returned to Sri Lanka. He claimed his father had disappeared in 2002, and he considered it was because his father was suspected of association with the LTTE. He claimed he and his family were harassed by the Sri Lankan authorities on many occasions, and that his mother had continued to be harassed since he and his brother had fled Sri Lanka in May 2012. G’s claims were of a similar nature. In separate decisions given on 17 May 2013, the Tribunal, constituted by Member Corrigan, affirmed the delegate’s decisions to refuse the appellant and G a protection visa. Although the evidence before us does not entirely explain the sequence of events, it appears that upon the appellant seeking judicial review of the Tribunal decision the Minister agreed that the decision should be set aside on the basis of jurisdictional error. The orders of the Federal Circuit Court setting aside the decision were made by consent on 21 August 2013. The draft consent orders prepared by the parties drew the Court’s attention to the basis for the proposed orders in the following terms:The First Respondent concedes that the decision of the Second Respondent handed down 17 May 2013 is affected by jurisdictional error in that the Second Respondent failed to consider the applicant’s claims in relation to the potential harm that a 17 year old may suffer in the course of a short term period of imprisonment upon return to Sri Lanka, which was an issue in the review.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On remitter, the appellant provided written submissions to the reconstituted Tribunal, and appeared before it on 14 November 2013 with the assistance of his migration agent. Member Boddison was the Tribunal member constituted to determine the application for review. On 31 January 2014, the Tribunal (constituted by Member Boddison) affirmed the delegate’s decision to refuse the appellant a protection visa. The second Tribunal decision (Member Boddison) There does not appear to have been any material change in the nature and content of the appellant’s claims in the review conducted by the Tribunal constituted by Member Boddison. The Tribunal accepted (at [26]) that the appellant’s father was taken by the Sri Lankan Criminal Investigation Department and never seen again, noting the appellant’s account of his father’s disappearance accorded with general country information around that period (2002) concerning the treatment of Tamils suspected of assisting the LTTE. The Tribunal did not accept (at [36]-[37]) that he or his family had been the subject of any adverse interest by the authorities or anyone else since 2002, having regard to factors including the “vague and changing nature of his evidence”, the implausible nature of the claims given he and his brother were respectively seven and nine years old in 2002, the implausible nature of the claims that his brother would tip him off about the visits or that the authorities looked for him at home over a period of ten years but never looked for him at work or school, and that his mother continued to reside in the family home and his sister was attending school. Accordingly the Tribunal found that the appellant did not face a real chance of persecution based on his membership of a social group (his family) or his imputed political opinion as a LTTE supporter now or in the reasonably foreseeable future. The Tribunal also rejected (at [42]) the claim in his protection visa application that there was an incident where a grease devil came to his home and broke the doors and windows while he was inside, having regard to his subsequent evidence to the Tribunal that he did not know anything about any grease devil incident or problem. As to the claim that he feared harm on account of his Tamil ethnicity, the Tribunal had regard to his past experiences and to country information indicating a generally improved situation for Tamils since the end of the civil war. Although the Tribunal accepted there was a level of discrimination against Tamils, it did not accept (at [58]) that the appellant would face a real chance of persecution on account of his Tamil race or being a young Tamil male, his Hindu religion, membership of a particular social group (his family, or Sri Lankan Tamils) or imputed political opinion as a LTTE supporter now or in the reasonably foreseeable future, or that there was a real risk that he would suffer significant harm on return. The Tribunal also did not accept (at [73]) that he would face a real chance of serious harm as a failed asylum seeker returning from a western country.

Ratio Decidendi

Legal Principle Established

The majority of time in argument was devoted to the first ground, and rightly so. We have concluded that ground should succeed.CONSIDERATION The Minister accepts that Member Boddison copied passages from the Corrigan decision, including passages dealing with findings on credibility and whether she accepted the appellant’s claims, and inserted them into her own reasons. The issue both parties confronted in their well developed and helpful submissions was what follows from that fact. The Minister also accepts that the authorities suggest where copying of findings about an individual claim occurs such a decision must be subject to close scrutiny. Both parties handed up competing versions of the second Tribunal decision with highlighting reflecting either the passages in the reasons which were copied from the Corrigan decision (the appellant’s version), or the passages which were not (the Minister’s version). No doubt each party considered the competing highlights better advanced the overall impression of how much of the second Tribunal’s decision was its own work. The Minister’s version also had edits identifying where the Minister submitted that rather than word-for-word copying there was some “paraphrasing” of the Corrigan reasons employed by Member Boddison. For the purposes of assessing whether a tribunal member brought her own independent mind to bear on what was the correct or preferable decision on the review, we do not consider there is a material distinction between word-for-word copying, moving words around into a different order (for example, in this case “broke windows and doors” at [23] in the Corrigan decision became “broke the doors and windows” at [21] in the Boddison decision), changing syntax or a word here or there. In each case it is the use of the opinions of another statutory officer as the Member’s own without attribution or disclosure that what appears in the reasons is not the work of that Member. The appellant also relied on a table annexed to his submissions which demonstrates, by comparison, the overlap between the decisions of Member Boddison and Member Corrigan. As the appellant submits, it is apparent that the passages which are identical, or substantively the same, extend into findings in respect of the review itself and in respect of the appellant’s account of what occurred to him.Ground One As the appellant recognised, this ground could have been expressed in a variety of ways. There is not necessarily one “correct” characterisation of a miscarriage of the Tribunal’s task of the kind with which we are concerned. In Huluba v Minister for Immigration and Ethnic Affairs [1995] FCA 1561; 59 FCR 518 (about which we say more below), Beazley J characterised the error as a denial of procedural fairness. In LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166, the Full Court characterised it as a constructive failure to exercise the jurisdiction conferred by the Administrative Appeals Tribunal Act 1975 (Cth) on the Tribunal. In other cases, substantial copying has been contended to disclose bias: SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; 314 ALR 146; Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223. It could also be described as a failure to discharge the statutory function, and indeed that is one of the descriptions used in LVR (at [91]).