FEDERAL COURT OF AUSTRALIA

QSVS v Minister for Home Affairs [2018] FCA 524

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    The applicant is a citizen of Nigeria, born in August 1974. Relevant to understanding some of the factual matters involved in the proceedings is that the applicant has two wives, seven children and one step daughter and that on 26 May 2009 he arrived in Australia with one of his wives and six of his seven children on Tourist (subclass 676) visas.

2    I note that Mr Turner, who appeared for the applicant, accepted that [9] of his outline of submissions dated 3 April 2018 should be corrected to delete the reference to the applicant’s daughter, and change that reference to the applicant’s “sons”, so that the six children to which reference is later made are the applicant’s sons.

3    On 26 June 2009 the applicant and members of his family applied for Protection (Class XA) (Subclass 866) visas. The application was initially refused by a delegate of the Minister for Immigration and Citizenship, but following review by the Refugee Review Tribunal, was granted on 1 February 2010.

4    On 27 April 2016, the applicant’s Protection visa was the subject of mandatory cancellation by a delegate of the Minister for Immigration and Border Protection (delegate) pursuant to s 501(3A) of the Migration Act 1958 (Cth). On 29 April 2016, the applicant sought revocation of the cancellation.

5    On 22 September 2017, pursuant to s 501CA(4), the delegate decided not to revoke the mandatory cancellation.

6    On 28 September 2017, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision.

7    On 18 December 2017, the Tribunal affirmed the decision under review, that is, the delegate’s decision not to revoke the cancellation of the applicant’s Protection (Class XA) (Subclass 866) visa.

Proceedings in this Court

8    By his “amended notice of appeal”, the applicant seeks orders quashing the decision of the Tribunal given on 18 December 2017 affirming the decision under review. It is an application for judicial review of a decision of the Tribunal pursuant to s 476A of the Migration Act.

9    The question of law is stated to be whether the Tribunal considered, or gave real and genuine consideration, to all the integers of the applicant’s claims. The grounds relied on are as follows:

1.    The AAT failed to consider all the integers of the Applicant’s claim

Particulars

a.    The Tribunal failed to give any, or any real consideration to:

i.    The best interests of the Applicant’s children; and

ii.    Whether the Applicant would face hardship, prejudice or other difficulty if he were returned to Nigeria.

2.    The Applicant was denied procedural fairness.

Particulars

a.    The Applicant sought the assistance of an interpreter

b.    The Tribunal insisted on proceeding without an interpreter.

The Tribunal’s decision

10    The Tribunal said, at [15], that it followed from the conviction of the applicant on 11 June 2014 in the Supreme Court of Queensland for the offence of attempting to possess a marketable quantity of an unlawfully imported border control drug contrary to ss 307.6(1) and 11.1 of the Criminal Code Act 1995 (Cth) that the applicant did not pass the character test. This was not in dispute before me.

11    The Tribunal then referred to the terms of Direction No. 65, made by the Minister under s 499 of the Migration Act on 22 December 2014.

12    The Tribunal next referred to the delegate’s conclusions and said, at [20], that it would consider the application against the background of the facts presented by the applicant and of the evidence which the applicant provided at the hearing of the application for review.

13    The Tribunal then turned to “Primary Considerations”. First it considered protection of the Australian community. The second primary consideration, addressed from [29] onwards, was the “best interests of minor children in Australia affected by the decision”. At [31] the Tribunal referred to the “oldest children in Australia” being the first, second and third children. Their mother resided in Nigeria. The Tribunal then referred, at [33], to the three children of the applicant’s second wife, referring to them as the fourth, fifth and sixth children. At [34], the Tribunal referred to the apparently close relationship between the applicant and all his children. The Tribunal said there was evidence that the third child preferred to live in foster care rather than living with the applicant and his wife, and apparently both the first and second children also preferred to live separate from their stepmother.

14    At [37], the Tribunal said:

The Delegate accepted that due to their age, it would be in the best interests of the three youngest children to have the Applicant participate in their lives. At present, the Applicant’s wife is fully supported by Centrelink payments and she is currently receiving in excess of $1,000 per week from such benefits. The Respondent notes that there is no evidence to suggest that the Applicant’s wife and her three younger children would remain in Australia if the Applicant’s Protection visa was cancelled.

15    At [39], the Tribunal said it concurred with the reasoning of the delegate that clearly the best interests of the children would be served by the applicant’s presence in Australia. The relevant paragraph of the delegate’s decision was as follows:

49.    In considering the above information I find that it is in the best interests of [the applicant’s six sons] for the mandatory visa cancellation to be revoked. I give somewhat less weight to this in respect of the three older children because it appears that they have adequate parental care and supervision available to them from other sources.

16    At [50], the Tribunal said it was satisfied that whilst it would be preferable for all the children to have the presence of their father in Australia, his conduct disentitled him to remain.

17    At [43], the Tribunal considered non-refoulement obligations. The Tribunal said that since the time when the Refugee Review Tribunal found that the applicant was entitled to a Protection visa, an International Treaty Obligations Assessment (ITOA) had been made which had had the benefit of further information. Such assessment, the Tribunal said, had concluded that Australia did not have non-refoulement obligations in respect of the applicant. The findings included that the applicant deliberately provided false or misleading information to the Department about his criminal conviction and imprisonment in the United Kingdom.

18    The Tribunal also said, at [44], that the report (sic) also concluded that contrary to the claims made by the applicant, his first wife and daughter were alive; they were not kidnapped as claimed and did not go missing.

19    At [45] the Tribunal further noted that the ITOA stated that the applicant was not an influential person in the city of Jos and further that he was not approached by Muslim PDP members to mobilise youth against Christians.

20    At [49], the Tribunal considered the extent of any impediments which the applicant may face if moved to Nigeria and said that the ITOA report suggested that there were no impediments for the applicant’s return.

21    At [50], the Tribunal said it was satisfied that the applicant came to this country only as a result of false information supplied by him both in respect of his claims to be a refugee and also in respect of his prior criminal history.

The parties’ submissions

22    As to the claimed failure to consider, in his written submissions, the applicant contended that he claimed that he faced harm and persecution if he was returned to Lagos and those fears were accepted by the Refugee Review Tribunal. He was granted a Protection visa on 1 February 2010. He submitted that a decision of the Refugee Review Tribunal, a statutory body established under the Migration Act, could only be overturned by a competent Court, not by an administrative determination.

23    The present Tribunal, it was submitted, relied upon a finding made in the ITOA. That assessment had no statutory basis and it “could not set a decision of a statutory Tribunal at nought.” By relying upon the ITOA rather than the conclusions of the Refugee Review Tribunal, the applicant submitted that the present Tribunal failed to give any real consideration to the international non-refoulement obligations owed to the applicant. It was submitted that the present Tribunal made no finding about non-refoulement obligations existing or not existing in relation to the applicant.

24    Further, the applicant submitted, the present Tribunal failed to give any, or any real consideration to the best interests of the applicant’s children. In order to treat the best interests of children as a primary consideration, the applicant submitted, the Tribunal must first consider what those best interests are. The applicant raised the best interests of his six children. Direction No. 65 directed that the best interests of these children were to be treated as a primary consideration. While the Tribunal said it “concurs with the reasoning of the delegate that clearly the best interests of the children would be served by the Applicant’s presence in Australia” such a concurrence fell short, it was submitted, of what each of the children required and where their best interests lay. The decision of the delegate at [49] was equivocal in relation to the weight to be given to the three older children. The Tribunal failed to take this equivocation into account nor realised that it needed to consider the differing needs of each of the children. As the delegate failed to consider the differing needs of each of the children, the Tribunal’s concurrence with that finding was also flawed. The applicant referred to Nweke v Minister for Immigration and Citizenship [2012] FCA 266; 126 ALD 501 at [12]; Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133 at [26] and Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608 at 630.

25    As to procedural fairness, although the applicant indicated at one point that he did not need an interpreter, he later required an interpreter and objected to the use of the interpreter who was present at the hearing. By requiring the applicant to proceed without the services of an interpreter, it was submitted, the Tribunal denied the applicant procedural fairness.

26    I now turn to the submissions on behalf of the Minister. In relation to the claim that the Tribunal fell into jurisdictional error in relying on the ITOA, the Minister noted that the argument did not appear to be covered by the relevant ground of review, but took that technical point no further. More significantly, the Minister submitted, the substance of the complaint was based on a misunderstanding of the nature of the decision made by the Tribunal. The decision of the Refugee Review Tribunal was made in a particular statutory context; that is, in the context of the applicant’s application for a Protection (Class XA) visa. That decision was given effect by the grant of the Protection visa to the applicant on 1 February 2010. However, the visa was subsequently cancelled on 27 April 2016 pursuant to s 501(3A) of the Migration Act and the applicant’s written request for revocation of the cancellation decision enlivened a process under s 501CA(4) of the Migration Act. It was in the context of that process that the issue of any relevant non-refoulement obligations needed to be considered by the delegate and, on review, by the Tribunal. The Minister submitted that the decision of the Refugee Review Tribunal had no statutory status in the context of the exercise of the power available under s 501CA(4). It was also made a considerable time earlier and, at least apparently, on the basis of incomplete and perhaps partly incorrect information. In the circumstances, the Minister submitted, there was no basis for the proposition that the Tribunal exceeded its jurisdiction by having regard to, and accepting, the ITOA.

27    As to the claim that the Tribunal failed to give any (or any real) consideration to the best interests of the applicant’s children, the Minister submitted that the Tribunal did consider the best interests of the applicant’s other children, and did so at some length: [29]-[39] of the Tribunal’s decision. To the extent that the applicant’s submissions suggested that the Tribunal failed to make findings about what the best interests of the children required, there was no basis for that proposition, the submission went. The Tribunal clearly found that the interests of each of the applicant’s six sons would be best served by a decision that would permit their father to remain in Australia: [39] and [50]. This case, it was submitted, could be readily distinguished from the authorities referred to at [8] of the applicant’s submissions. Further, to the extent that the applicant argued that the Tribunal failed to consider the differing needs of the children, that proposition was also contrary to the facts. The respective positions of the applicant’s various children were considered by the Tribunal at [30]-[34] and [37]-[38]. The fact that it simply concluded that it was in the best interests of each of his children in Australia for the applicant to be able to remain in Australia was not inconsistent with giving each child individual consideration, to the extent permitted by the evidence.

28    As to the claimed denial of procedural fairness from the absence in the Tribunal of an interpreter, the Minister submitted that the relevant circumstances included the following: that the applicant indicated that he “speaks English all right” but sometimes he cannot understand things clearly, and may need people to slow down; that an interpreter was provided, but the applicant objected to her being used; the fact that pursuant to s 500(6L) of the Migration Act, this was a matter which had to be determined by the Tribunal within 84 days of the applicant having been notified of the delegate’s decision, in the absence of which the Tribunal would have been taken to have affirmed the decision of the delegate. Further, the Minister submitted, contrary to what was alleged at ground 2b of the amended notice of appeal, the Tribunal did not insist on proceeding without an interpreter. The Tribunal proposed to try and see how far the hearing could proceed without an interpreter, and the applicant agreed to that course. No issue was raised by the applicant during the balance of the hearing regarding the availability of an interpreter. Even more significantly, there was no indication anywhere in the transcript that the lack of an interpreter caused any difficulties to the applicant.

Consideration

29    As to whether the applicant would face hardship, prejudice or other difficulty if he were returned to Nigeria, the ground expressly pleaded, in my view it cannot succeed in light of the Tribunal’s findings at [49] which I have referred to at [20] above.

30    I next consider the ground of more substance that, by relying upon the ITOA rather than the conclusions of the Refugee Review Tribunal, the present Tribunal failed to give any real consideration to non-refoulement obligations owed to the applicant.

31    I do not accept this submission. As was submitted on behalf of the Minister, the Refugee Review Tribunal decision was made a considerable time earlier, some 10 years. Also, as found by the present Tribunal, the ITOA found that the decision of the Refugee Review Tribunal was made in part on the basis of false and misleading information. In the circumstances, I see no error on the part of the present Tribunal in acting on the most recent information which was before it. I also do not accept that the decision of the Refugee Review Tribunal had any particular status in the context of s 501CA such that the present Tribunal “could not set a decision of a statutory Tribunal at nought”, or, that what the ITOA did was to that effect.

32    The statutory force of the Refugee Review Tribunal’s decision had ended with the original grant of the visa, which was revoked under 501(3A). I note that the ITOA contained a detailed examination of the Refugee Review Tribunal’s decision. Later material inconsistent with the Refugee Review Tribunal’s decision emerged.

33    As to the submission on behalf of the applicant that the present Tribunal did not state the basis on which it preferred the ITOA, this turns on the “status” submission as to the Refugee Review Tribunal’s decision. As I have already found, the Refugee Review Tribunal’s decision had no particular status in the present case. The present Tribunal noted at [43] that the ITOA was made later in time, and by referring to the later material gave a basis for preferring the ITOA to the findings of the Refugee Review Tribunal.

34    In relation to the submission that the present Tribunal made no findings as to non-refoulement obligations existing, or not existing, this turns on what the present Tribunal said at [43]-[46], [49] and [50], read in light of the ITOA. Applying the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 and Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 and dealing with the matter as a matter of substance, the present Tribunal accepted the ITOA and made a finding.

35    I reject the submission that the Tribunal erred in this respect.

36    As to the claimed failure to consider the best interests of the applicant’s children, it is to be recalled that the Tribunal found, at [39], that “clearly the best interests of the children would be served by the Applicant’s presence in Australia.”

37    In earlier paragraphs, the Tribunal identified and gave consideration to the material before it in relation to each of the children.

38    In Nweke, the Court held, at [18], that consideration of the Minister’s decision and statement of reasons as a whole supported the inference that the Minister did not in fact treat the best interests of the applicant’s children as a primary consideration in deciding whether or not to cancel the applicant’s visa. The Court drew this conclusion from its analysis of the reasons given by the Minister, as follows. First, the Court said, in the decision itself there was no mention of the interests of the applicant’s children although other relevant findings and considerations were mentioned. Second, in the summary of the statement of reasons the Minister referred to the fact that he gave “primary consideration to the protection of the Australian community...”. There was no mention of the interests of the applicant’s children in those paragraphs other than, Jagot J said, perhaps obliquely under the general rubric of “any relevant international obligations”. Third, her Honour said, when dealing with the “best interests of the child” the Minister said he gave “primary consideration to the best interests of any children who are less than 18 years of age and whose best interests may be significantly affected by cancellation of [the applicant’s] visa”. However, on that and each subsequent occasion when dealing with the applicant’s children, the Minister’s reasons remained at the level of mere hypothesis about their best interests. The Minister’s reasons as a whole indicated that the Minister either found or assumed (it was not clear which) only that it may be in the children’s best interests for their father’s visa not to be cancelled, presumably on the basis that their interests may be significantly affected (again, presumably adversely by reason of the fact that they may suffer emotional and financial hardship) by cancellation of their father’s visa.

39    In so concluding, the Court applied Vaitaiki and Wan.

40    In Vaitaiki, Burchett J, with whom Branson J agreed, found, at 618, that the Deputy President had not asked what the best interests of the children required him to decide with respect to the proposed deportation of the appellant, but what each set of children should do, given that their father would be deported. Branson J said, at 631, it was noteworthy that nowhere did the reasons for decision of the Tribunal seek to identify what would, in the circumstances before the Tribunal, be the result that would overall be conducive to the best interests of the children. At best they gave consideration to the children’s best interests in a limited way within a restricted framework.

41    In Wan, the Full Court held, at [7], that the appellant was denied procedural fairness before the Administrative Appeals Tribunal and was entitled to a fresh hearing. At [26], the Full Court said that of particular significance was the failure of the Tribunal to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan’s application for a visa.

42    In the present case, the Tribunal did consider, at [29]-[39] and at [50] the best interests of the minor children in Australia affected by the decision. The Tribunal reached a concluded view, at [39], that “clearly the best interests of the children will be served by the Applicant’s presence in Australia.” Thus the type of error found by the Court in Vaitaiki, Wan and Nweke, on close consideration of the Tribunal’s reasons in each case, is not made out.

43    I do not accept the submission on behalf of the applicant that what the Tribunal found, at [39], meant that the Tribunal failed to take the delegate’s “equivocation into account nor realised that it needed to consider the differing needs of each of the children”. Neither do I accept that the delegate failed to consider the differing needs of each of the children or, that if the delegate failed to do so, the Tribunal’s concurrence with that finding was also flawed. The finding of the delegate, at [49], was that it was in the best interests of the six minor children who resided in Australia for the mandatory visa cancellation to be revoked. The delegate then gave somewhat less weight to that factor in respect of the three oldest children because it appeared that they had adequate parental care and supervision available to them from other sources. In my opinion, contrary to the submission on behalf of the applicant, this finding was not “equivocal”.

44    I do not accept the applicant’s submissions that the delegate’s finding, at [49], stopped short of a finding in relation to the applicant’s three older children. In my opinion, the finding by the Tribunal at [39] as to the best interests of the children remains in relation to the applicant’s six children under consideration. I note the submission of the applicant that if the delegate had stopped short in the first sentence of [49], there would be no cause for complaint. As I have said, in my view, the finding by the Tribunal at [39] referred to all of the children.

45    I therefore reject the applicant’s submission that the Tribunal erred by failing to consider the best interests of the applicant’s children.

46    As to the claimed denial of procedural fairness, in his application to the Tribunal dated 28 September 2017 the applicant indicated that he did not need an interpreter. At page 3 of the transcript before the Tribunal the applicant said he needed an interpreter and he did not want the interpreter who was there. In the Tribunal, the applicant agreed that he spoke adequate English but sometimes he had to ask the speaker to slow down. The applicant then accepted the proposition put by the Deputy President that “we will try and see how far we can get with you without an interpreter.”

47    The transcript does not show that the applicant had language difficulties. The applicant accepted that he could read English. I do not accept the submission on the part of the applicant that the pages of the transcript to which I was taken show that the applicant’s ability to understand the questions he was asked and respond to them was adversely affected by the absence of an interpreter.

48    The pages of the transcript on which Mr Turner for the applicant particularly relied were 24, 25, 30, 31, 33 and 34. In the context of the entire transcript, so far as it involved the applicant being spoken to and responding, these references did not show that the applicant did not understand the proceedings. Where questions were not understood, I find that those questions were clarified.

49    As I have indicated, the applicant did not say during the course of the Tribunal hearing that he did not understand the proceedings or that he was handicapped by the fact that English was not his first language. In so saying I take into account that the applicant was self-represented.

50    There is no other evidence from the applicant to the effect that he could not adequately understand the proceedings in the Tribunal or that he was prejudiced by the absence of an interpreter.

51    In these circumstances I find that no procedural unfairness in the Tribunal’s proceedings has been established. I therefore reject ground 2 of the application.

Conclusion and orders

52    The application is dismissed, with costs.

Associate:    

Dated:    16 April 2018