FEDERAL COURT OF AUSTRALIA

Tejada v Minister for Immigration and Border Protection [2018] FCA 693

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an appeal from a decision of the Federal Circuit Court of 10 March 2017 dismissing an application for review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of the Minister’s delegate refusing the appellant’s application for a Partner (Temporary) (Class UK) Visa (Partner Visa) on the basis that there were no compelling reasons for waiving the applicable criteria in Sch 3 of the Migration Regulations 1994 (Cth) (Regulations).

Background

2    The appellant, a citizen of Peru, arrived in Australia on 19 January 2010 on a subclass 570 student visa. In September 2010 he met and formed a relationship with Ms Duanyang Wang, a Chinese citizen in Australia also on a student visa. The appellant’s student visa expired on 20 September 2010.

3    The appellant was located by NSW police and identified as an unlawful non-citizen. He was placed in detention at the Villawood Immigration Detention Centre on 19 December 2013. He then applied for a protection visa on 2 January 2014 on the basis that he feared harm because he had stood up to a criminal gang that was attempting to extort money from his family’s business. This application was refused on 29 January 2014. The appellant sought review of that decision in the then Refugee Review Tribunal, which affirmed the refusal on 11 April 2014. The appellant applied for judicial review on 7 May 2014.

4    While the appellant was in detention, there was a data breach in the Department which resulted in the appellant’s name, date of birth, nationality, gender and details of detention being made available on a public website from 10 to 19 February 2014. The appellant received written notice of this data breach in a letter dated 12 March 2014. It is not in dispute that the release of data was in breach of s 336E of the Migration Act 1958 (Cth) (Migration Act).

5    Ms Wang obtained permanent residency in 2014 and later became an Australian citizen. Ms Wang and the appellant were married in November 2014. On the basis of this relationship, the appellant then applied for a Partner Visa (Temporary) (Class UK) (subclass 820) and Partner (Residence) (Class BS) (subclass 801) visa on 27 January 2015. The appellant discontinued his earlier proceedings for judicial review of the Refugee Review Tribunal’s decision in relation to his protection visa application on 17 February 2015.

6    In order to be granted a partner visa, an applicant must satisfy Sch 3 criteria 3001, 3003 and 3004 of the Regulations unless the Minister is satisfied that there are compelling reasons for not applying those criteria. Criterion 3001 requires that the visa application be made within 28 days after the ‘relevant day’, which is the last day on which the applicant held a substantive visa. In the appellant’s circumstances, that was 20 September 2010, when his student visa expired. It followed that the Minister needed to be satisfied that there were compelling reasons in the appellant’s circumstances for not applying criterion 3001.

7    The appellant submitted a statutory declaration to the Department explaining why there were compelling reasons for not applying criterion 3001. In that statutory declaration he stated that Peru was a dangerous country, and was particularly unsafe for foreigners. He believed Ms Wang could be kidnapped for ransom. He also stated that the police in Peru were corrupt and that they could not protect people from gangs. The appellant stated that the gang who had extorted money from his family’s business had previously attacked him and broken his arm and would kill him if he returned. There had been a murder in the area in July 2015 and the appellant believed that it was probably the gang of extortionists who had committed it. The appellant also submitted a psychologist’s report for his sponsor, Ms Wang, which stated that Ms Wang would be at a higher risk of mental disturbance in the event that she was separated from her husband by his return to Peru.

8    The appellant was notified of the refusal of his visa application by a delegate of the Minister by letter dated 23 October 2015. The Minister’s delegate found that the appellant did not meet the criterion 3001, and there were no compelling reasons for not applying the Sch 3 criteria in the appellant’s case.

9    The delegate gave significant weight to the appellant’s immigration history, which included four years of unlawful stay with no attempt to engage with the Department. While the delegate acknowledged the appellant’s fears in relation to returning to Peru, the delegate also indicated that he was not required to assess claims that raised potential protection obligations, but only those relevant to Partner Visa applications. In any case, the delegate noted that the appellant’s claims in that regard were deemed insufficient to grant a protection visa, that the appellant had provided no further evidence to support his claim, and that he had been found to be a non-credible witness when interviewed. The delegate also indicated that the appellant was not required to return to his community in Peru and could stay elsewhere if his fears continued. With respect to the appellant’s claims in relation to Ms Wang, the delegate indicated a belief that Ms Wang’s attendance at counselling was for the purpose of strengthening the appellant’s application rather than for the management of a significant psychological condition. Further, the delegate noted that it was reasonable for partners to experience emotional or psychological hardship in the event of separation These factors, therefore, did not outweigh the fact that the appellant had been residing unlawfully in Australia for a number of years prior to applying for visas, and so there were no compelling reasons to dispense with the Sch 3 criteria.

10    The appellant applied to the Tribunal for review of the decision to refuse the Partner Visa.

Decision of the Tribunal

11    The Tribunal affirmed the decision not to grant the appellant a Partner Visa on 24 June 2016, finding that there were no compelling reasons why the Sch 3 criteria should not be applied in the appellant’s case. As a result, the appellant did not meet the criteria under cl 820.211(2) for a Partner Visa.

12    The appellant provided the Tribunal with statements by himself and Ms Wang which addressed the requirement that there were compelling reasons for not applying the criteria. The appellant also submitted a copy of a letter addressed to him from the Secretary of the Department which explained the data breach that had occurred in February 2014, stating (inter alia) as follows:

There is no way of knowing from whom I could face a real risk of harm as it may go well beyond authorities in my home country, including foreign security and intelligence, terrorist organisations and crime syndicated. In addition th [sic] Human Resources Sections of companies and public service departments would als [sic] have access to the information and would undermine my ability to find employmen [sic]. Foreign governments may use this information as a reason not to grant visas for me to travel.

13    In the same letter, the appellant also requested that a migration agent or lawyer be made available to him because of the risk of harm should be return to his home country as a result of the department’s breach.

14    A copy of that letter was provided to the Tribunal. Both the appellant and Ms Wang gave oral evidence at the Tribunal hearing.

15    The Tribunal found the appellant to be evasive, and did not accept that he held, or continued to hold, a genuine fear of harm if he returned to Peru. The Tribunal concluded that his claimed harm did not provide a reasonable explanation for his unlawful presence in Australia and did not constitute compelling reasons to waive the Sch 3 criteria.

16    In relation to the applicant’s claim regarding his relationship with Ms Wang, the Tribunal found that the appellant had manipulated his personal circumstances to obtain a positive outcome, and the fact that he had been in a relationship with Ms Wang for some time was not a compelling reason to waive the criteria. The Tribunal did accept that they would miss each other in the event that they were separated but it noted that that was not unusual for genuine couples who are still subject to the Sch 3 criteria. The Tribunal also did not accept the claim that the consequences for Ms Wang would be greater than for others.

17    The Tribunal considered the psychologist’s report. Although it was accepted that separation from the appellant would be a challenge for Ms Wang, it noted that she had only seen a psychologist once in January 2016 and her conditions were therefore not fully treated. The Tribunal inferred that, if Ms Wang continued treatment with a mental health professional, she would learn positive coping mechanisms, and further that Ms Wang could reduce her anxiety and dependence on the appellant by attending further appointments. The Tribunal was therefore not satisfied that Ms Wang would have no option but to go to Peru – rather this was a matter for Ms Wang to decide.

18    The Tribunal also did not accept the appellant’s claim in relation to the danger that Ms Wang would face as a foreigner in Peru, noting that Australians were able to travel safely in Peru by taking precautions. Other factors that were raised but which the Tribunal considered were also matters for Ms Wang and the appellant to decide were in determining their arrangements were Ms Wang’s urological condition and ongoing investigations, the impact of separation on the couple’s finances, and the effect on Ms Wang’s career if she was absent from her work in Australia.

Federal Circuit Court decision

19    The primary Judge held that there was no jurisdictional error in the Tribunal’s decision and dismissed the appellant’s application for review.

20    The first issue raised by the appellant below was that the Tribunal failed to consider the potential impact of the data breach on the appellant. The primary Judge acknowledged that the Tribunal had only mentioned the data breach at [12] as follows:

He said that he would have to return to Peru, rather than any other country, to apply for a partner visa because the Department had published that he had claimed protection. He said he was advised that no other countries would grant him a visa in that case.

21    The primary Judge nonetheless found that the Tribunal was not required to do anything further. The primary Judge referred to the case of SGBB v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364 at [18], which was approved by the Full Court in NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]-[60], where it said that the relevant question is whether the case put by the applicant before the Tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with it. The case of Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at [114] was also referred to as authority for the proposition that the Tribunal cannot limit itself to the case articulated by the applicant but is required to deal with the case that arises on the evidence or material. However, the primary Judge also stated, on the basis of Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24; (2012) 126 ALD 48 at [25], that the Tribunal can be guided by the way in which an applicant presents his or her case. The potential doubt of this proposition as a result of Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [61]-[64] was noted but the primary Judge indicated that his Honour was still bound to apply Tuitaalili.

22    The primary Judge found that the following exchange from the Tribunal hearing was relevant to the application of Tuitaalili:

Applicant:     If I hadn’t had any problems in Peru I would have gone back with my wife already two years ago. I would have come back and everything would have been OK. I would have gone months because I have no opportunity I’m scared of going back there. I don’t know if this one can help me so I have Privacy Commission this happen to me in the detention centre.

Tribunal:    I’m not sure how that is really relevant. I’ve got that copy of that.

Applicant:     Yes.

Tribunal:    You’ve me a copy of that already.

Applicant:    Yes.

Tribunal:    I’m not sure how that helps you. Do you want to tell me is there something (inaudible) in a way that helps you.

Applicant:    Well this Privacy Commission document when I was in Villawood is news that I was a refugee and they put that information in the internet therefore everybody knows that I have been a refugee in Australia that affects my life a lot because I cannot travel and because he is saying every other country in the world is (inaudible).

Tribunal:    You are saying other countries would refuse you a visa because you claimed protection in Australia?

Applicant:    Yes.

Tribunal:    I suppose that means you shouldn’t go offshore to somewhere other than Peru you’re saying.

Applicant:    I don’t really know. But that’s what the lawyer told us. Human rights lawyer told us.

Tribunal:    It makes sense to me.

23    The primary Judge found that this passage demonstrated that the Tribunal was unsure of the relevance of the letters regarding the data breach. The appellant was asked to explain their relevance, which he said was his inability to travel to other countries as a result of the breach, and so that was what the Tribunal had to consider. The primary Judge found that the Tribunal did so. The primary Judge further held that the vagueness of the matters referred to by the appellant in his letter to the department, and the fact that he did not mention those other matters when asked directly at the hearing, meant that the Tribunal was not required to consider them in determining whether there were compelling reasons for waiving the Sch 3 criteria.

24    The primary Judge also rejected the appellant’s second and thirds grounds in relation to Ms Wang’s psychological conditions and her safety on an extended stay in Peru. Those grounds are not now pursued in this appeal.

Grounds of Appeal

25    The appellant seeks an order quashing or setting aside the judgment of the Federal Circuit Court on two grounds:

1.    The primary Judge erred in failing to consider all integers of the claim and failed to inquire adequately in assessing whether the appellant’s circumstances constituted compelling reasons for not applying criterion 3001 in Sch 3 of the Regulations.

2.    The Federal Circuit Court erred in law by misdirecting itself as to the obligation of the Tribunal to consider all the integers of the appellant’s claims.

26    The appellant’s grounds of appeal relate principally to the alleged failure of the Tribunal to consider or make sufficient inquiries as to the data breach in which the appellant’s name and various personal details were made publically available on a website.

27    In ground 1, the appellant contends that the primary judge ought to have found that the Tribunal failed to consider all integers of the claims made by the appellant in relation to the data breach and failed to make inquiries as to whether this constituted compelling reasons for not applying criterion 3001. The ground was particularised as follows:

a.    The appellant submitted a letter addressed to Jack Ma of the Department of Immigration and Border Protection and a letter from Martin Bowled, the then Secretary of the Department of Immigration and Border Protection, dated 12 March 2014 in his review application to the Second Respondent;

b.    At [30] the Federal Circuit Court found that the passage from the hearing of the Tribunal reveals that the Tribunal was not sure of the relevance of the documents submitted by the appellant concerning the data breach;

c.    The Tribunal was under a duty to inquire in order to adequately assess all claims made to the Department and Tribunal; and

d.    The Tribunal has failed to consider the circumstances of the Peruvian authorities and non state agents having access to the appellant’s personal information that he was unlawfully in Australia and held in immigration for x days.

28    Ground 2 contends that the Federal Circuit Court misdirected itself as to the obligation of the Tribunal to consider all of the integers of the appellant’s claim. Specifically:

a.    At [26] - [30] the Federal Circuit Court found that the Tribunal was not required to consider other matters before it because the appellant did not mentioned them when directly asked about the impact of the data breach at the hearing even though those matters were fore the Tribunal as evidence.

b.    The Federal Circuit Court found in effect at [30] that the Tribunal only had to consider the content of what was discussed at the oral hearing in respect of its obligation to consider all of the integers of the appellant’s claims.

Submissions of the parties

29    The appellant submits that the primary Judge misapplied the law in failing to find that the Tribunal had fallen into jurisdictional error by (in turn) failing to consider the data breach in determining whether there were compelling reasons for departing from the Sch 3 criteria. The appellant relies on the exchange between the appellant and the Tribunal, set out above, to show that the appellant did not fully understand how the data breach could affect him and that his answer could not be considered a full explanation of the matters that he was relying on. Therefore, in the appellant’s submission, it was incumbent on the Tribunal to consider fully the impact of the matters raised in the letters regarding the data breach.

30    The appellant also takes issue with the approach of the primary Judge. The appellant sought to distinguish the present case from Tuitaalili on the basis that the appellant’s letter to the Department squarely raised the issue of the data breach having real prospects of increasing the risk of harm to the appellant in the event that his visa application was refused. Further, by relying only on what the appellant had said orally at the hearing, especially in circumstances where the appellant’s first language is not English, the decision was infected by a denial of procedural fairness which resulted in a practical injustice.

31    The only mention of the data breach was at [12] of the Tribunal’s reasons, and the Tribunal did not mention or deal with any other possible consequences for the appellant flowing from the data breach. Therefore, the appellant submitted that the Tribunal’s failure to deal with the entirety of the appellant’s claim resulted in the type of error in Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 197 ALR 398, which is considered either as a failure to accord natural justice or a constructive failure to exercise jurisdiction. In Htun v Minister for Immigration [2001] FCA 1802; (2001) 233 FCR 136 at [42], the Full Court held that “to make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked upon”. The primary Judge therefore erred in failing to find that there was no jurisdictional error on the part of the Tribunal, which had failed to consider the entirety of the appellant’s claims when determining whether there were compelling reasons.

32    The Minister submitted that the Tribunal did not fail to make the inquiries that the appellant submitted ought to have been made and, in any case, this case would not constitute circumstances in which the Tribunal had a positive duty to make inquiries. The Tribunal raised the issue with the appellant, asked for his explanation of the relevance of the issue, and determined what the relevance of it was.

33    In relation to the other submissions of the appellant referable to grounds 1 and 2, the Minister submitted that the appellant erroneously assumed that everything in the appellant’s letter to the Department had been put forward the Tribunal as a “compelling reason” for the purposes of the Partner Visa application. However, the respondent noted that the letter was written to the Department in connection with the assessment of the appellant’s protection visa application. The letter was expressly addressed to an officer of the Department (not the Tribunal) in a capacity connected to assessing claims to protection. It appears to have been sent at a time when the appellant was making claims for protection. It was therefore understandable that the Tribunal would make inquiries as to the relevance of the letter to the present application for a partner visa.

34    In respect of principles articulated in Dranichnikov, the Tribunal’s reasons indicate that it understood, considered and rejected the claims made by the appellant in response to the Tribunal’s inquiries. As the High Court explained in Dranichnikov, the Tribunal is required to have reference to a substantial, clearly articulated argument relying upon established facts – this was not the case here owing to the appellant’s claims being vague and the fact that his claims concerning data breach were not mentioned even when the appellant was asked directly. The primary judge was therefore correct in finding that the Tribunal had not failed to consider the appellant’s claims fully.

35    In the alternative, the respondent submitted that the fact that the claims were not referred to in the Tribunal’s reasons is not a reason to conclude that they were not considered, especially because the exchange between the Tribunal and the appellant demonstrated that the Tribunal was aware of relevant issue.

Consideration

36    As the appellant’s Counsel conceded at the hearing of the appeal, the appellant’s complaint is essentially that the Tribunal erred in failing to take into account, or grapple with, as an issue in its decision, the effect of the data breach on him.

37    The appellant referred to correspondence between the relevant Department and the appellant which identified the potential for increased risk of harm, or the potential for increased risk of harm, to the appellant.

38     It is apparent that, at the Tribunal hearing, the issue of the data breach was raised – however it is equally apparent that the appellant made nothing of the issue relevant to the refusal of the visa for which he had applied.

39    The appellant relied on observations of Merkel J in Htun, in particular at [13]:

The Tribunal’s approach to this issue might be explained by the manner in which the appellant put his case. However, unlike in an adversarial proceeding, the Tribunal cannot limit its determination just to the case articulated by an appellant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the appellant …

40    The abandonment by the appellant of his protection visa application raises the question of how the data breach would have been a relevant factor for the Tribunal to take into consideration in respect of the Partner Visa application. However Counsel for the appellant submitted that the data breach was not necessarily related to the appellant being a refugee applicant – he could for example be at risk from criminal gangs, and further there is the potential risk the appellant could suffer at the hands of State authorities who may have become aware that he had sought protection in Australia. In circumstances where the Tribunal had to decide whether or not there were compelling reasons to waive the requirements under the relevant criteria in respect of a Partner Visa application, one of the relevant considerations for the Tribunal to consider was whether or not the appellant could safely return to his own country, and the Tribunal failed to do so.

41    I have already noted the interchange between the appellant and the Tribunal in respect of the data breach issue. The Tribunal noted at [12]:

He claimed that persons involved in extortion were still active and continued to take money from his family.

42    Further, the Tribunal at [12] observed:

He said that he would have to return to Peru rather than any other country to apply for a partner visa because the Department had published that he had claimed protection. He said he was advised that no other countries would grant him a visa in that case.

43    Objectively, a data breach of the kind that occurred here was a serious matter. However at its highest, the case of the appellant was that he would be obliged to return to Peru, that he was not in fear of persecution in Peru for a reason recognised by the Refugees’ Convention, but that there was a prospect that he could be identified by members of criminal gangs who could seek to extort money from him, or the Peruvian authorities.

44    It was for the Tribunal to determine whether there were compelling reasons warranting non-application by the Minister of Sch 3 criteria 3001, 3003 and 3004 of the Migration Regulations. The task of the Court is not to engage in merits review of the decision of the Tribunal – rather it is for the Court to consider whether the Tribunal made an error going to its jurisdiction, and subsequently whether the Federal Circuit Court erred in deciding that the Tribunal had made no such error. In this case the Tribunal had before it material related to the data breach, which did not include any information about the appellant’s abandoned protection claims. The Tribunal clearly had regard to the appellant’s arguments concerning disadvantages which might accrue to him as a result of the data breach, and nonetheless concluded that there were no compelling reasons of the type claimed by the appellant.

45    The appeal should be dismissed, with costs to follow the event.

Associate:

Dated:    17 May 2018