Trang (formerly named as Azl20) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 1)
[2021] FCAFC 72
•5 May 2021
FEDERAL COURT OF AUSTRALIA
Trang (formerly named as AZL20) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 1) [2021] FCAFC 72
Appeal from: AZL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1490 File number(s): WAD 255 of 2020 Judgment of: RARES, O'CALLAGHAN AND WHEELAHAN JJ Date of judgment: 5 May 2021 Date of publication of reasons: 18 June 2021 Catchwords: MIGRATION – where Administrative Appeals Tribunal affirmed decision by delegate of Minister not to revoke visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – where Tribunal required to apply Direction 79 in making decisions to grant, cancel or revoke a cancellation of a visa – whether Tribunal not required to take into account international non‑refoulement obligations, in accordance with cl 14(1)(a) of Direction 79, because appellant conceded to Tribunal no such claim clearly articulated or supported by cogent country information but told Tribunal if visa cancellation not revoked he would be kept in immigration detention for lengthy period while he formulated protection visa claim and until Minister decided whether or not to grant it – whether Tribunal erred in failing to consider possible lengthy detention – held, dismissing appeal, no jurisdictional error Legislation: Federal Court of Australia Act 1976 (Cth) s 37AG
Migration Act 1958 (Cth) ss 36, 499, 501, 501CA
Cases cited: Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194
AXT19 v Minister for Home Affairs [2019] FCA 1423
AXT19 v Minister for Home Affairs [2020] FCAFC 32
Dranichnikov v Minister for Immigrationand Multicultural and Indigenous Affairs (2003) 77 ALJR 1088
Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Omar v Minister for Home Affairs [2019] FCA 279
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 36 Date of hearing: 5 May 2021 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms C.I. Taggart Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
WAD 255 of 2020 BETWEEN: PHUOC DAT TRANG (FORMERLY NAMED AS AZL20)
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
RARES, O'CALLAGHAN AND WHEELAHAN JJ
DATE OF ORDER:
5 MAY 2021
THE COURT ORDERS THAT:
1.On or before 14 May 2021, the first respondent file and serve an affidavit together with submissions limited to 3 pages explaining the basis upon which, first, the appellant has been given a pseudonym in this proceeding and in proceeding WAD537/2019, and, secondly, why it was appropriate to make publicly accessible in the form it was made, and to continue order 2 made in WAD537/2019 on 15 May 2020.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES AND O’CALLAGHAN JJ:
This is an appeal from the decision of a judge of the Court who refused constitutional writ relief to the appellant in respect of the decision of the Administrative Appeals Tribunal given on 1 October 2019 to affirm the decision of the Minister’s delegate not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth), the mandatory cancellation, pursuant to s 501(3A) of the Act, of the appellant’s BF Transitional (Permanent) visa made on 31 August 2016.
Background
The appellant appeared for himself today with the assistance of an interpreter and presented arguments as to why the appeal ought be allowed. He was, however, represented by counsel both before the Tribunal and the primary judge, and has adopted the arguments put by his previous counsel to the primary judge in support of his appeal. The issues are in a relatively narrow compass because of the limited grounds of appeal.
The two grounds on which the appellant sought relief below were whether the Tribunal erred, first, by failing to consider matters that the appellant had raised in his representations under s 501CA(3) as being a reason to revoke the cancellation of his visa, irrespective of whether those matters actually engaged Australia’s non-refoulement obligations; and secondly, by incorrectly assuming that it (the Tribunal) did not need consider the existence or otherwise of any non-refoulement obligations since they could be considered in the event that the appellant applied for a protection visa, given that the criteria for a protection visa under s 36(2) of the Act substantially differed from, and did not reflect, Australia’s non-refoulement obligations.
The appellant arrived in Australia in 1990, aged 19, and has resided here ever since. He was born in Cambodia in 1970, but both his parents were citizens of Vietnam, as is he.
The appellant recorded his first conviction in 1992 for driving offences committed in 1991, and since then he had been convicted on 59 occasions for a range of offences, including a number for which he had received sentences of imprisonment. Those included convictions:
·in 1999 for assault occasioning bodily harm and aggravated burglary with intent, for which he received concurrent terms of two years imprisonment;
·in 2004 for offences including explosion causing damage to property and escaping lawful custody, for which he received a total term of imprisonment of four years;
·in 2009 for a range of drug offences, including possession of prohibited drugs, namely, heroin, with intent to sell and after appeal being sentenced to a total term of imprisonment of three years and four months; and
·on 5 September 2014, the sentence that caused the mandatory cancellation of his visa under s 501(3A) when he was convicted of possession of a prohibited drug, namely, methylamphetamine, with intent to sell and was sentenced to a term of imprisonment of three years and nine months.
Accordingly, the appellant did not pass the character test.
The delegate was not satisfied there was another reason under s 501CA(4) to revoke the cancellation of the visa. The Tribunal, in reviewing the delegate’s decision, applied the provisions of Direction 79 made by the Minister under s 499 of the Act that set out mandatory considerations for decision-makers, including when considering the exercise of the power to revoke the cancellation of a visa under s 501CA(4).
The Tribunal’s relevant reasons
The Tribunal’s reasons relevant to those grounds can be summarised as follows and it is not necessary to traverse all of the matters argued before the Tribunal, because of the narrowness of the two grounds advanced before the primary judge and on appeal. Those grounds arose in the circumstance that the appellant contended that, in accordance with cl 14(1)(a) of Direction 79, the Tribunal was required to take into account, where relevant, international non‑refoulement obligations.
At the time of the Tribunal’s decision, there were conflicting decisions of single judges of this Court about whether the Minister or decision-maker under s 501CA(4) had to take into account, and to what extent, any non-refoulement obligations. The Tribunal determined that it would follow the decision of Logan J in AXT19 v Minister for Home Affairs [2019] FCA 1423. The Tribunal found that it was not bound to consider non-refoulement claims in circumstances where, as the appellant’s counsel had conceded before it, such claims were not “clearly articulated” or “supported by cogent and persuasive country information”. The appellant had contended through his counsel that he intended to make a protection visa application, if he were unsuccessful in the Tribunal, that would be based on what he characterised as “perhaps” three plausible grounds on which such an application could be made. The Tribunal set out counsel’s submissions as to those possible grounds, namely that, first, the appellant feared the communist regime in Vietnam based on his experiences before arriving in Australia in 1990; secondly, he was a Christian and there might be a claim that, if returned, he could be affected, but in his own evidence before the Tribunal he made no such claim; instead, his counsel relied on evidence given to the Tribunal by a pastor, whose identity and evidence the Tribunal ordered to be suppressed, and thirdly, in his counsel’s words, “perhaps… on the basis he was born in Cambodia and never necessarily part of the Vietnamese community as a whole, [he] may face some sort of discrimination upon that basis.”
Counsel for the appellant told the Tribunal, as it recorded, that, based on the observations of Logan J in ATX19 [2019] FCA 1423, it was not required to determine whether or not the appellant was owed non-refoulement obligations.
The Tribunal then found (at [105]–[107]):
On the basis of the above, the Tribunal does not consider that it is bound to consider the applicant’s non-refoulement claims which, as the applicant’s counsel, rightly in the Tribunal’s view, described as ‘not a clearly articulated’ or ‘supported by cogent and persuasive country information’.
Further, the Tribunal does not accept the applicant’s counsel’s proposition put in closing that the Tribunal should take into account the possibility of the applicant remaining in detention for an extended period while his protection visa claim is assessed. On the issue of the likely time to resolve the applicant’s protection visa application, assuming that he does make such an application, on the information available to the Tribunal the time currently being taken to process and assess protection visas for non-citizens in detention is around three to four months. While the time to finally resolve any appeal or appeals which may be made if the applicant is unsuccessful in his protection visa application may be considerably longer, that is a matter of speculation and would, if that path is taken,
be a matter of choice by the applicant.Even if the Tribunal were to accept the applicant’s proposition that it should have consideration to time that the applicant may spend in detention if he were to make an application for a protection visa, and, even if the Tribunal were to treat that time in detention as potentially extending to years, that consideration would not alter the Tribunal’s determination that the cancellation of the applicant’s visa should not be revoked. Even if that consideration was added to those that are in favour of revocation of the cancellation of the visa, the considerations that weigh against revocation of the cancellation outweigh those in favour of revocation of the cancellation
The primary judge’s reasons
The primary judge analysed the course of the proceeding before the Tribunal in some detail in relation to the grounds of review set out in [3] above. Importantly, his Honour found that the appellant had not challenged the Tribunal’s reasoning in [105]–[107] of its decision. His Honour said:
This construction of the concessions is confirmed, not undermined, by counsel's subsequent submission that there was nevertheless a basis for the applicant to apply for a protection visa. That is for three reasons. First, the premise of that submission was that the applicant could do in the protection visa application what he had not done before the tribunal: claim on a cogent basis to fear harm on return to Vietnam. Second, the relevance of the submission for the purposes of the Tribunal was expressly confined to consideration of the impact of his likely prolonged detention while the visa application was being processed. The Tribunal did address that in its reasons, and no complaint is made about the way in which it did so ([25]) [His Honour had set out [105]-[107] of the Tribunal’s reasons verbatim in [25] of his reasons]. Third, counsel's emphasis in the submission was that the country information about persecution of Christians was there; what was lacking in the Tribunal was any claim by the applicant suggesting that it applied to him.
(emphasis added)
The primary judge found that counsel’s concession that the Tribunal did not have to consider any non‑refoulement obligations based on Logan J’s decision was properly made. We do not wish to be taken in these reasons as indicating agreement with his Honour’s analysis of this point which it is not necessary for us to decide. We would note that, in dismissing the appeal on different grounds in AXT19 v Minister for Home Affairs [2020] FCAFC 32 [59]–[61], Flick, Griffiths and Moshinsky JJ also said that they need not need to consider the correctness of Logan J’s reasoning that non-refoulement obligations need not be considered as ‘another reason’ under s 501CA(4) for revoking the mandatory cancellation of a visa under s 501(3A).
The primary judge found that, in the circumstances, the Tribunal did not err in concluding that it had no obligation to consider the appellant’s non‑refoulement claims because, in substance, by the end of the Tribunal hearing, as his Honour found, no such claims were advanced before it. He said:
In relation to the latter it was not the country information that was lacking, but rather any cogent claim by the applicant raising fears or circumstances that might engage that information.
His Honour found that, not only was there no significant claim that engaged or could have engaged Australia’s non‑refoulement obligations advanced in final submissions before the Tribunal, but also, although the pastor’s evidence was capable of alerting the Tribunal to a concern about religious persecution in Vietnam, it was not relevant because, during his evidence, the appellant did not raise any concern about that issue at all. His only evidence to the Tribunal concerned his fear of the nature of the communist regime in Vietnam.
His Honour rejected the appellant’s argument that, even if non-refoulement obligations were not engaged, the matters that had been raised during the hearing before the Tribunal should have been considered as “another reason” about why the cancellation of his visa ought be revoked. The primary judge said that, in whatever way the argument was put to the Tribunal, there had been no clearly articulated claim or issue arising squarely on the materials of such substance and cogency that the Tribunal erred in not considering it. He found that the Tribunal actually considered the pastor’s evidence in connection with impediments that the appellant might face on return to Vietnam and concluded that any restrictions on religious practices in that country would not constitute an impediment to the appellant. His Honour found that the only error in the Tribunal’s consideration that the appellant alleged was about the weight that the Tribunal had assigned to the issue, but he found that it did not need to consider the issue in any event.
The primary judge rejected the first ground of review based on the concession that the appellant’s counsel had made, namely that he had not put in issue before the Tribunal any representations, within the meaning of s 501CA(4), that Australia’s non-refoulement obligations constituted another reason for revocation of the cancellation decision.
The primary judge found that to the extent that the appellant had made a representation about a reason to revoke the cancellation, aside from non-refoulement, that representation concerned the possibility that, were the cancellation of the visa not revoked, the appellant might have to spend an indefinite time in immigration detention while his as yet unmade protection claims were considered. The primary judge found that the Tribunal had considered that argument and rejected it.
His Honour rejected the second ground of review on the basis that the Tribunal’s reasons did not disclose that it had conflated any differences between Australia’s non-refoulement obligations and the considerations relevant to the grant of a protection visa under s 36(2) of the Act. That was because the Tribunal had decided not to consider non-refoulement obligations at all because they were not the subject of a clearly articulated claim.
His Honour observed that, if he were wrong about applying ATX19 [2019] FCA 1423, there could not realistically have been a different outcome in the Tribunal if it did not have to follow that decision. That was because the appellant had made no claim before the Tribunal requiring consideration of non-refoulement obligations so that any error of the Tribunal considering that it was bound by ATX19 [2019] FCA 1423 was not material and the consideration of the unarticulated claim could not result in any different outcome, applying Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
The primary judge noted a third ground of review, not in the originating application, had been argued during the hearing pursuant to leave. The appellant based that ground on the decision of Mortimer J in Omar v Minister for Home Affairs [2019] FCA 279 (which was affirmed on different grounds in Minister for Home Affairs v Omar (2019) 272 FCR 589), with which Logan J in ATX19 [2019] FCA 1423 had disagreed. The primary judge considered it was unnecessary to grant leave to the appellant to withdraw his concession that Logan J’s decision was correct because of the absence of any claim before the Tribunal, at the conclusion of the hearing, in which Australia’s non-refoulement obligations were raised.
The pseudonym order and non-publication orders
During the course of argument today, the Court expressed concern as to, first, how the appellant’s name came to be given a pseudonym in the proceeding below and in this Court, without any order for that to occur, and in circumstances where s 91X of the Act did not apply, and secondly, why it was appropriate for his Honour to make an order on 15 May 2020 prohibiting the publication or other disclosure of the name of the pastor and information contained in his witness statement when the pastor’s name appeared in the order that was available publicly through the Commonwealth Courts Portal and both his and the appellant’s actual names are used in the Tribunal’s still published reasons. The order restricted publication of those matters to only the appellant, the Minister, their legal representatives, judges, staff of the Court and the transcription services. His Honour did not set out in that order any ground under s 37AG of the Federal Court of Australia Act 1976 (Cth), and no such ground was apparent to the Full Court beyond the Tribunal’s desire to keep confidential, at his request, the pastor’s identity and activities. We ordered the Minister to file and serve an affidavit, together with submissions explaining the bases on which the Minister understood those orders to have been made and why they are to be appropriate to be continued by this Court. We will deal with that issue in separate reasons.
The appellant’s submissions
In support of his appeal, the appellant adopted the arguments of his counsel that the primary judge had rejected. He told us that he wished to stay in Australia with his elderly and infirm mother and also with his sister who were his only living relatives since their escape to this country in 1990, and that he wished to assist and support his mother in her final years. He said that he understood and regretted his commission of the offences for which he had been sentenced and wanted another opportunity to renew his life and repay his debts to the Australian community. He said that he wanted to participate in a drug rehabilitation program for which he had been accepted, originally, were he granted parole and, now, if the cancellation of his visa were revoked. He said that he had called the pastor as a witness to identify the difficulties of religious practice in Vietnam. He told us that he had not given evidence to the Tribunal of any harm that he could fear for himself because he had not been in Vietnam for about 30 years and, at the time of the hearing, he was not in a position to give it information about what his own situation would be, being a matter that he wished subsequently to investigate and identify.
The appellant told us that he prepared the notice of appeal with the assistance of a friend in immigration detention. The notice of appeal is in a boilerplate form that gives no particularity to any of the arguments or grounds which could be used to challenge the primary judge’s reasoning. However, it repeated the grounds of the application below. As the appellant said, he relied on the way in which his counsel had articulated his claims for review of the tribunal’s decision to the primary judge. Both of the grounds of review below can be treated as the substantive grounds of appeal, albeit on the basis that the appellant claims the primary judge erred in failing to discern the errors he alleged that the Tribunal had made.
Consideration
The fundamental problem with both of the grounds of appeal is that non-refoulement obligations played no role in the claims that the appellant, through his counsel, put to the Tribunal as live issues at the conclusion of the hearing for the reasons that the primary judge gave, as summarised above.
Essentially, as counsel for the appellant conceded to the Tribunal and his Honour, there was no clearly articulated claim identifying or raising Australia’s non-refoulement obligations were the cancellation of the visa were not revoked. Accordingly, there could be no jurisdictional error in the Tribunal not considering that non-issue, whether pursuant to cl 14(1)(a) of Direction 79 or otherwise: Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194 at 199–201 [28], [30]–[31], [33]–[37], per Nettle, Gordon and Edelman JJ; see too NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 20 – 21 [62] – [63] per Black CJ, French and Selway JJ, and Dranichnikov v Minister for Immigrationand Multicultural and Indigenous Affairs (2003) 77 ALJR 1088.
In cases where a party is represented by competent counsel who presents a case, ordinarily, the Tribunal is entitled to proceed on the basis of the arguments articulated, although that may not always be so. In the present case, there was no evidence before the Tribunal of any relevant claim by the appellant that would engage either a need for it to consider Australia’s non‑refoulement obligations under cl 14(1)(a) or otherwise to consider whether Australia owed protection obligations to him under s 36(2). At its highest, the appellant’s case was that, in the fullness of time, he wished to consider making an application for a protection visa that would articulate what, at the time of the hearing in the Tribunal, he was not able to articulate, namely, some form of claim to protection that he might have or that might engage non-refoulement obligations in respect of him. Therefore, at the hearing in the Tribunal any such claim was undefined, speculative and had no substance; rather, the appellant articulated a possible course that he might take if and when he could identify some basis upon which such a claim could be advanced.
The appellant failed to identify any fear he had as to the way in which he might, or might be able to, practice his religion were he to be returned to Vietnam or, indeed, to say anything at all about any religious beliefs or practices in his evidence to the Tribunal. That meant that the pastor’s evidence as to possible impediments to the free practice of religion in Vietnam had no connection to the appellant’s circumstances and did not require the Tribunal to engage in any consideration of what, if any, non-refoulement obligations might arise in respect of the appellant’s Christianity were he to be returned to Vietnam. He did not explain to it how, and in what way, he might practice any religion were he to be returned there.
Similarly, as the Tribunal found, the appellant raised no clearly articulated argument and did not identify any other matter that suggested that Australia owed him non-refoulement or protection obligations were he returned to Vietnam simply because it was a communist regime.
The appellant’s oral argument in the course of the hearing today dealt with matters going to the merits of his claims. They were not matters suggestive of any jurisdictional error that the Tribunal made or that the primary judge made any error of law in arriving at his decision to dismiss the appellant’s application for review.
Conclusion
It follows that the appeal should be dismissed with costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rares and O'Callaghan. Associate:
Dated: 18 June 2021
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)WHEELAHAN J:
I agree that the appeal should be dismissed with costs.
The primary judge was correct at [51] of his Honour’s reasons in holding that any claim concerning non-refoulement obligations owed in respect of the appellant was not the subject of representations that were before the Tribunal. A review of the transcript of the hearing before the Tribunal demonstrates that counsel who appeared for the appellant before the Tribunal did not maintain any such claim on behalf of the appellant: see in this regard, Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47 at [67]-[71]. The relevant passages are set out in the primary judge’s reasons at [23] and [24]. Counsel before the Tribunal accepted that there was no clearly articulated claim supported by cogent and persuasive country information. The question of non‑refoulement obligations was not otherwise a mandatory relevant consideration: see, Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 383 ALR 194 at [33]-[36] (Nettle, Gordon and Edelman JJ).The primary judge was correct in finding that the appellant’s first ground of review must be dismissed.
The claim that was in fact put to the Tribunal on behalf of the appellant was that, should the decision to cancel the appellant’s visa not be revoked by the Tribunal, then the appellant proposed to make an application for a protection visa, and in that event, he was likely to remain in detention for an extended period while his application and any proceedings relating thereto remained on foot. The Tribunal squarely addressed that claim, finding, amongst other things, that even if the Tribunal were to treat the time in detention as extending to a period of years, that would not alter the Tribunal’s determination that the cancellation of the appellant’s visa should not be revoked. The primary judge was therefore correct in holding that the appellant’s second ground of review should be rejected.
As to the third ground of review before the primary judge, the Tribunal did not fail to consider the question of non-refoulement obligations on the ground that those obligations would be considered as part of a protection visa application. The Tribunal did not consider the question because there had been no clearly articulated claim in relation to those obligations. The Tribunal’s rejection of the appellant’s reliance on the length of time in which he would stay in immigration detention should he make an application for a protection visa was rejected by the Tribunal on its merits for other reasons. Therefore, as the primary judge held at [54], the third ground of review argued before his Honour did not arise for consideration.
Finally, I say nothing about the appropriateness of a pseudonym order or a non-publication order in respect of certain evidence pending the Court’s consideration of the circumstances in which this occurred.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan. Associate:
Dated: 18 June 2021
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