FEDERAL COURT OF AUSTRALIA

BRJ15 v Minister for Immigration and Border Protection [2017] FCA 588

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, fixed at $2,557.32, by way of a lump sum.

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

REASONS FOR JUDGMENT

MORTIMER J

1    This is an appeal from the orders of the Federal Circuit Court made on 15 December 2016: BRJ15 v Minister for Immigration & Anor [2016] FCCA 3274. The appellant has three grounds of appeal, although it is her third ground of appeal on which she has focused most of her submissions.

2    For the reasons set out below, the appeal must be dismissed.

Background

3    The appellant, a national of Malaysia, has been in Australia since April 2010. She entered Australia on a visitor visa but lodged an application for a protection visa approximately three months after she arrived. That visa application was refused, and the appellant was unsuccessful in both merits and judicial review in relation to that refusal. She also sought ministerial intervention, which was also unsuccessful. It is unnecessary to set out in more detail her attempts to secure a visa prior to January 2014. Those attempts are described in greater detail in both the reasons of the Administrative Appeals Tribunal and in the reasons of the Federal Circuit Court.

4    Relevantly for present purposes, the appellant made a further application for a protection visa in January 2014, as a result of the decision of the Full Court of this Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235. As a result of the Full Court’s decision in SZGIZ, her further application was considered as a valid application in relation to the complementary protection criterion set out in s 36(2)(aa) of the Migration Act 1958 (Cth). This visa application was also refused and the appellant sought review of that decision in the Administrative Appeals Tribunal. As the Tribunal noted in its reasons at [5], it was confined to considering whether the appellant satisfied the requirements of s 36(2)(aa) and (c), there having been in 2010 consideration of whether the appellant satisfied the criteria in s 36(2)(a) in relation to the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967).

5    Before the Tribunal, the appellant claimed there was a real risk she would suffer significant harm on her return to Malaysia for a number of reasons. They included a debt the appellant claimed she owed to money lenders in Malaysia and harm she feared from them, including a claim (relevant to her grounds of appeal) that these money lenders were involved in the kidnapping of her mother in December 2010. She also made claims that she fears harm from her former boyfriend and his criminal associates, as well as making claims to fear harm because of her Indian Tamil ethnicity and her religion as a Hindu, on the basis that Indian Tamil Hindus in Malaysia experienced discrimination and were treated less favourably than Malays, including by police. The appellant presented material to the Tribunal concerning psychological problems she said she suffered and which she claimed affected her memory and her capacity to give detailed evidence to the Tribunal about some of the events on which her claims were based.

6    At several points in the Tribunal’s reasons, it seems the Tribunal did not find the appellant to be entirely credible. For example, at [33] of its reasons, the Tribunal stated:

The Tribunal is not satisfied, having considered all of the evidence, that the applicant has given a truthful account of her experiences in Malaysia or that there is a real risk she will suffer significant harm upon her return to Malaysia.

7    While there are other passages in the Tribunal’s reasons which make it clear the Tribunal accepted some of the appellant’s evidence, and accepted that some of the events the appellant claimed had occurred had in fact occurred, it is a consistent theme of the Tribunal’s reasons that many of the aspects of the appellant’s claims which were central to the Tribunal’s assessment of whether there was a real risk she would suffer significant harm on return to Malaysia were not matters the Tribunal found credible or reliable. So much is apparent from the Tribunal’s conclusions at [56]-[58] of its reasons:

Having regard to the above, the Tribunal has formed the view that the applicant has manufactured a set of claims upon her initial arrival in Australia and made numerous applications in an attempt to remain in Australia. The Tribunal considers that the motivation for this application, which was lodged shortly before she withdrew her Partner visa application, was that she was aware she could not meet Schedule 3 requirements for that visa as she and her husband were experiencing relationship difficulties and subsequently separated. The Tribunal considers that this current application was lodged and further claims made in an attempt to provide a basis for remaining in Australia and does not accept that it was lodged because the applicant has any genuine fear of harm in Malaysia.

Thus, having considered all of the evidence, even if the applicant borrowed money from someone to come to Australia, the Tribunal does not accept that it was from illegal money lenders. The Tribunal also does not accept that the debt was not repaid when it became due. The Tribunal does not accept that the applicant’s mother was kidnapped or disappeared as a result of any debt owed to money lenders. The Tribunal has accepted that her boyfriend may have been jailed and he was associated with criminal gangs, and one of those gang leaders was killed. The Tribunal also accepts the independent evidence provided in relation to the presence of criminal gangs in Malaysia. The Tribunal accepts that this was shameful for the applicant, but her own evidence indicates that this occurred in 2007. The Tribunal does not accept that the applicant has or will be sought by criminal gangs due to her relationship with a member of a criminal gang or that she will be sought by her former boyfriend. The Tribunal has not accepted that he or the gangs blamed the applicant for his arrest or conviction or that her mother’s disappearance has any connection with criminal gangs. The Tribunal does not accept that some eight years after his arrest this will have any continuing ramifications for the applicant or that it will affect her ability to obtain employment and resettle into Malaysia where she has lived all of her life.

The Tribunal is not satisfied, having considered all of the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that she will suffer significant harm, such that she will be arbitrarily deprived of [her] life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

8    The Tribunal published its decision on 22 July 2015. The circumstances in which it did so form a key aspect of the appellant’s grounds of appeal and I will return to those in more detail below.

The Federal Circuit Court decision

9    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court and raised two grounds of judicial review. When the matter came on for hearing before the Federal Circuit Court, the appellant was represented by a solicitor and the solicitor informed the Court that only one of the two grounds would be pressed. That ground was:

The Tribunal acted unreasonably by failing to defer its decision until the applicant had provided a relevant document as requested by the Tribunal.

Particulars

On 17 July 2015 via email, the Tribunal requested a clear copy of the status of the Police report which is in Malay language. The Tribunal’s email indicates that it would consider the report. The Applicant’s representative in an email dated 20 July 2015 requested further time to provide a translated copy of the Police report because that particular report is in Malay. The Tribunal failed to wait till 27 July 2015 to assess the translated copy of the document and decided to affirm the decision of the delegate on 23 July 2015.

10    It is apparent that this ground of review depended on the principles of legal unreasonableness as they were articulated by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332.

11    The course of events on which the appellant relied is set out in the particulars that I have quoted above. There was no dispute about the factual course of events, and there remains no dispute in this appeal about that course of events. Nevertheless, the Federal Circuit Court found it was not legally unreasonable for the Tribunal to proceed to determine the review on 22 July 2015 despite the appellant’s request in an email of 20 July 2015 that the Tribunal wait until she was able to provide a translated copy of the Malaysian police report. The Federal Circuit Court’s reasoning was as follows (at [21]-[22]):

… The untranslated copy of the Malay document was squarely identified by the Malayan lawyer as identifying the fact that there was an ongoing investigation in respect of the applicant’s mother who is deemed to be missing. That was a fact that the Tribunal accepted. There was no requirement in the circumstances in the present case for the Tribunal to await a translation in respect of the document, the contents of which had been substantially identified in the covering report by the Malay lawyer, and in respect of which the Tribunal accepted that there was an ongoing investigation.

The refusal of the Tribunal to further adjourn the proceedings cannot be said to lack an evident and intelligible justification. It was not unreasonable for the Tribunal in the circumstances of the present case to proceed to determine the application for review without awaiting the translation of the two-page document, the substance of which had already been disclosed to the Tribunal and the content of which in relation to the applicant’s missing mother had been accepted by the Tribunal. Ground 2 fails to make out any jurisdictional error.

12    The Federal Circuit Court also found, in the alternative, that even if the refusal of the Tribunal to adjourn its review as the appellant requested was legally unreasonable, “this is a case where no practical injustice whatsoever flowed from the Tribunal’s decision”. The Federal Circuit Court identified the grant of constitutional relief as a discretionary consideration and noted that it would in any event have refused relief despite the existence of jurisdictional error. Whether this alternative reasoning is sound is not a matter I need determine on the appeal, as I am not persuaded the Federal Circuit Court was in error in rejecting the grounds of review identified by the appellant.

The appeal to this Court

13    The appellant filed a notice of appeal to this Court from the Federal Circuit Court decision on 5 January 2017. In this Court, she represented herself, but nevertheless filed a notice of appeal containing sensibly articulated grounds of appeal and a set of written submissions which also sensibly and clearly identified what her complaints on appeal were about the Federal Circuit Court decision.

14    The appellant has three grounds of appeal. They are:

(1)    that the Federal Circuit Court erred in deciding the Tribunal had not failed to properly consider her claims under s 36(2)(aa) of the Migration Act.

(2)    that the Federal Circuit Court “dismissed my application by giving oral decision but without providing any judgement [sic] so far. That indicates that his Honour in the Federal Circuit Court came to the hearing with a view to dismiss the application”. I take this to be a ground of appeal seeking to raise an allegation that the Federal Circuit Court had pre-judged her judicial review application without giving it any serious consideration.

(3)    that the Federal Circuit Court should have found the Tribunal’s refusal to delay its decision until the date requested by the appellant’s representatives (namely, 27 July 2015) as legally unreasonable. This was the ground of review the appellant had pressed before the Federal Circuit Court. In submissions to this Court this was the ground of appeal emphasised by the appellant.

15    When the appeal was called on, I explained to the appellant the process which would be undertaken and gave her the choice of making oral submissions first, or doing so by way of response to the Minister’s submissions. She chose the latter option. The Minister’s representative took the Court carefully and thoroughly through the relevant documents in the appeal book and the relevant aspects of the Federal Circuit Court decision and the Tribunal’s decision. The appellant then made several responses through the interpreter, to what the Minister’s representative had said. She focused, as her written submissions had done, on the failure of the Tribunal to wait before handing down its decision for her migration agents to send through the translation of the Malaysian police report. I sought to explain to the appellant how the Minister put his submissions in relation to the Tribunal’s failure to wait before handing down its decision and gave the appellant an opportunity to respond. She indicated to the Court, through the interpreter, that she had nothing to add, although she confirmed she understood what I had explained to her.

Resolution

16    As the Minister points out in his submissions, the first ground of appeal is not developed by the appellant, and may indeed be related to the third ground of appeal in the sense that the failure of the Tribunal properly to consider her claims is, in substance, the failure of the Tribunal to delay its decision until receipt of the translated police report from the appellant’s representatives. In that way, it appears the appellant submits that the Tribunal failed to consider her claims. The appellant did not say anything further at the hearing of the appeal and I consider this ground of appeal fails.

17    As to the second ground of appeal, I accept the Minister’s submissions that the Federal Circuit Court decision under consideration in this appeal is not of the same kind as that considered by a Full Court of this Court in BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61. In that case, no reasons were given by the Federal Circuit Court for the conclusions reached on one ground of review. Here, it appears that the appellant did not receive the Federal Circuit Court’s written reasons for some time after the hearing on 15 December 2016, perhaps due to the Christmas and New Year period, although oral reasons were delivered on that date at the conclusion of the hearing. Orders were also pronounced at that time.

18    It is not difficult to understand how a person in the appellant’s position may see the delivery of ex tempore reasons at the time of pronouncing orders immediately after the hearing of her case as indicating the Federal Circuit Court had not given any real consideration to her grounds of review and had made up its mind in advance, so as to be incapable of persuasion at the hearing. A lay person unfamiliar with the practices of the Federal Circuit Court, and the high volume of its decision-making, could be forgiven for misapprehending what occurs in circumstances such as the present. However, there is nothing in the nature or content of the reasons of the Federal Circuit Court in this case which could support any such finding by this Court on appeal. The Federal Circuit Court’s reasons are brief, but adequate, and deal with the single ground of review raised by the appellant before it.

19    That leaves the most substantive ground of appeal raised by the appellant, namely the way the Tribunal dealt with her representative’s request that it wait for a translation of the Malay police report before making its decision on the review.

20    On 4 June 2015, after the Tribunal conducted its hearing on 29 May 2015, the Tribunal sent the appellant a letter pursuant to s 424A of the Migration Act. That letter raised a number of particulars given pursuant to the Tribunal’s obligations under s 424A. One of the topics dealt with in that letter was the disappearance of the appellant’s mother in Malaysia in December 2010. In summary, the Tribunal raised with the appellant the fact that she had not referred to her mother’s disappearance until July 2011 and put the appellant on notice that her failure to mention her mother in previous interviews with the Department and in her current protection visa application as well as in her ministerial intervention application, may lead the Tribunal to find that she had either “manufactured” the claim about her mother disappearing, or to find that her mother’s disappearance has no connection with her claims for protection. The Tribunal requested a response to this letter by 18 June 2015.

21    A day before the 18 June 2015 deadline, the appellant’s representatives sent a letter to the Tribunal enclosing a number of documents in support of the appellant’s claims and also asking for an extension of time to provide a psychologist’s report to confirm that the appellant continued to suffer significant mental health issues. The request for an extension of time was supported by a letter from the appellant’s psychologist indicating that she needed further time to prepare her report. The appellant’s representatives asked for an extension of time until 1 July 2015 to provide the psychologist’s report. In that letter, the appellant’s representatives referred to the High Court decision in Li, as well as the decision of the Full Court of this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437.

22    On 18 June 2015, the Tribunal wrote to the appellant and her representatives and confirmed that it had considered the request for an extension of time and agreed to it. It imposed a new deadline for any comments or response to its s 424A letter by 2 July 2015. The Tribunal made it clear in that letter that if nothing was received by that date, the Tribunal may proceed to make a decision on the review without taking any further action to obtain the appellant’s views on the information contained in the s 424A letter.

23    On 2 July 2015, being the deadline set by the Tribunal, the appellant’s representatives sent a translated police report from Malaysia in relation to the appellant. This report was not concerned with her mother’s disappearance, but rather with another event not relevant to the grounds of appeal. I mention it only because it was a document sent on the deadline imposed by the Tribunal. Also on that day, by cover of a separate email sent a few minutes later, the appellant’s representatives sent to the Tribunal a statutory declaration from the appellant with a large number of attachments. This was the substantive response by the appellant to the Tribunal’s s 424A letter. In her statutory declaration, the appellant deals expressly with the Tribunal’s concerns about her mother’s disappearance. It is not necessary for the purposes of determining the appeal to set out the explanation the appellant gave.

24    The next communication, well after the Tribunal’s deadline of 2 July 2015, occurred on 15 July 2015. On that date, the appellant’s representatives sent an email to the Tribunal in the following terms:

We refer to the above and request the Tribunal to give time till 20 July 2015 (Monday) to provide a report on the status of the police report No Gopeng/ 002274/10.

We note that the Tribunal requested the applicant to provide a status report for the above police report. We managed to contact an Advocate in Malaysia (Mr [REDACTED]) as per our client’s instruction. We note that this particular report from Mr [REDACTED] is relevant in the present case.

Mr [REDACTED] has requested that he needs some time to prepare such report. We enclose an email correspondence from Mr [REDACTED].

Accordingly we request the Tribunal to grant time till 20 July 2015 to provide that report in support of the applicant’s application for a protection visa.

We thank the Tribunal for its consideration.

25    In oral submissions, the Minister’s representative was unable to point to any specific request by the Tribunal which may have been the subject of the comment in the second paragraph of this email. I am prepared to infer, for the purposes of the appeal, that the Tribunal may have made such a request during the review hearing. In any event, the important point for the purposes of the appeal to take from this email is that the appellant’s representatives requested a further extension of time until 20 July 2015 to provide the report from the Malaysian advocate.

26    As it turned out, the appellant’s representatives did not need until 20 July 2015 to provide the Malaysian advocate’s report. By an email on 16 July 2015, the appellant’s representatives sent that report to the Tribunal. The next day, 17 July 2015, an email was sent from the Tribunal to the appellant’s representatives. It is common ground that this email did not find its way onto the Tribunal file, but it was before the Federal Circuit Court (and subsequently this Court) because it was attached to an affidavit of the appellant’s representative.

27    The email from the Tribunal stated:

The last two pages enclosed with the lawyer’s report are not legible. They are too dark. Please provide a better quality copy immediately.

28    The appellant’s representative responded to the Tribunal in the following terms on 20 July 2015:

We refer to the above and enclose a screenshot regarding the status of the report. We note that the report is in Malay language and have asked the Translator to translate the document in English.

However, we note that Mr [REDACTED] in his report confirms that he has sighted from the online police authorities system that the police is still investigating the case. He further confirms that the investigation paper remains active. He also confirms that he has seen the document and confirms the authenticity of the document and the contents of the screenshot showing the current status of the report.

We further note that the translators has advised that they would translate the document and would send to us on or before 27 July 2015. As soon as we receive the document from the Translator, we will forward to the Tribunal.

(Emphasis added.)

29    At the hearing of the appeal, the Minister submitted that this communication from the appellant’s representatives should not be understood to be a request for an extension of time. The Minister also submitted that this email should be construed as the appellant’s representative saying to the Tribunal, in substance, that the translation of the police report was “unnecessary”. I do not accept that submission. That is not what the communication from the appellant’s representative says. It is clear that the appellant’s representatives intended to forward to the Tribunal a translated copy of the police report. In this document, what the appellant’s representatives are, in addition to that, saying is that the Malaysian advocate’s report is consistent with the police report and they are attempting to assure the Tribunal that it will see the consistency once it receives the translated documents.

30    Whether or not this communication from the appellant’s representatives can be understood to be a request for an adjournment, I am prepared to find that it was at least a request that the Tribunal not finalise the review until it received the translated documents from the appellant’s representatives. The time involved was relatively short: namely, seven days.

31    The Tribunal did not wait to receive those translated documents: so much is common ground. Instead it proceeded to make its decision on 22 July 2015. When it did so, it did not have the benefit of the translated police report which the appellant’s representatives had foreshadowed they would be sending.

32    The question for determination on the appeal, relevantly to the appellant’s third ground of appeal, is whether by not waiting to receive those translations, and by proceeding to determine the review notwithstanding the communication from the appellant’s representatives on 20 July 2015, the Tribunal could be said to have conducted itself in a way that was legally unreasonable. The exercise of power in issue (although not expressly identified by the appellant) must be the Tribunal’s function under s 414 of the Migration Act to review the decision, perhaps in combination with the Tribunal’s power under s 427 of the Migration Act.

33    Although it is understandable, from the lay perspective of the appellant, that it would seem unfair for the Tribunal not to have waited to conclude its review for the translated documents, I do not consider the Tribunal performed its functions or exercised any power in relation to the review in a way that is properly described as legally unreasonable within the principles set out by the High Court in Li and by a Full Court of this Court in Singh. That is because those translated documents went to matters about which, in determining the review, the Tribunal made findings favourable to the appellant.

34    I accept the Minister’s submissions that insofar as what was sought to be established by this documentation concerned the disappearance of the appellant’s mother, the Tribunal accepted that the appellant’s mother had disappeared and that there was an ongoing investigation into her disappearance.

35    What the Tribunal rejected was any nexus between the mother’s disappearance and the appellant’s claim to fear harm because of a debt she owed to money lenders and her claimed difficulties with criminal gangs. As the Minister submitted, there is no evidence to suggest that a translation of the two pages of the police report was capable of advancing this aspect of the appellant’s claims beyond the favourable findings made by the Tribunal in relation to her mother’s disappearance (see [43] of the Tribunal’s reasons).

36    The concept of legal unreasonableness involves an exercise of power (and, frequently, an exercise of discretionary power) for which there is no “evident or intelligible justification” on the material before the decision-maker and in the terms of the decision-maker’s reasons (if any): see Li at [76] (Hayne, Kiefel, Bell JJ) and Singh at [44], [47], [48] (Allsop CJ, Robertson, Mortimer JJ).

37    The Tribunal does not advert in its reasons to the appellant’s requests that it delay the conclusion of its review until the translation of the police report had been obtained. In other words, there are no reasons set out by the Tribunal for not acceding to the request of the appellant’s representative that the Tribunal delay its decision pending receipt of the translated document.

38    Nevertheless, I consider the evident justification for the Tribunal proceeding as it did is that it was prepared to accept the substance of what the Malaysian police report was capable of establishing: namely, that the appellant’s mother had disappeared, that there was an ongoing investigation into her disappearance but that the cause had not been determined. There is no basis in the evidence to find that the untranslated police report went beyond these matters. In those circumstances there was no real utility in the Tribunal waiting for the translated document, notwithstanding that the original request for a better copy of the Malaysian police report had come from the Tribunal itself.

39    In the appellant’s grounds of appeal and in her submissions, she contended:

If the Tribunal had the opportunity to read the document, there is a possibility that the Tribunal could have taken a different decision.

40    There is no basis in the material before the Court to make such a finding. As I have noted, it would appear the Tribunal made the most favourable findings it could on this aspect of the appellant’s claims, notwithstanding it had not received nor taken into account the translated Malaysian police report.

41    In those circumstances, the Federal Circuit Court was correct to hold that it was not legally unreasonable for the Tribunal to proceed to determine the appellant’s application for review without awaiting the translation of the two page document.

Conclusion

42    The appeal must be dismissed. There is no basis in the evidence for anything but the usual order as to costs. In my opinion, costs should be fixed as a lump sum, as this is the most efficient and effective way for a matter of this nature to be determined, in accordance with the Court’s practice note on costs: see [3.5] and [4.1] of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

43    At the conclusion of the hearing of the appeal, after I had announced the Court would reserve its decision, the Minister’s representative sought to hand up, read and rely upon an affidavit in relation to the Minister’s costs of the appeal. I received that affidavit, having explained to the appellant its purpose. That affidavit sets out in accordance with the Court’s practice note and in appropriate detail, a summary of the Minister’s costs and deposes to a claim by the Minister for costs in the amount of $2,557.32, which represents a discount of the costs actually incurred. I consider the amount to be reasonable and propose to make a costs order in that sum. This is a practice by the Minister which is to be commended, in terms of the time, costs and resources saved by its adoption.

Associate:

Dated:    26 May 2017