FEDERAL COURT OF AUSTRALIA
DGR16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 657
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The first and second appellants are to 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.
PERRY J:
1 The appellants are a family from India who applied for protection visas in 2014. The first appellant, the husband, was the primary applicant (Mr [DGR]). He claimed to have been the victim of workplace abuse, fraud and extortion by his subclass 457 visa sponsor and to fear harm from associates of his sponsor if returned to India. Mr [DGR]’s wife and child, the second and third appellants respectively, did not make any protection claims of their own but sought asylum as part of the same family unit.
2 The appellants’ applications for protection visas were refused by a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), under s 65 of the Migration Act 1958 (Cth) (the Act). This is an appeal from a decision of the Federal Circuit Court (the Circuit Court) dismissing the appellants’ application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), to affirm the delegate’s decision.
3 The appellants were unrepresented on the appeal. Mrs [DGR] appeared at the hearing of the appeal and made brief oral submissions with the assistance of a NAATI accredited professional interpreter in English and Punjabi and a support person. The Minister filed written submissions in advance of the hearing which were sight-translated for Mrs [DGR] before the start of the hearing.
4 The appeal must be dismissed with costs. While I explain my reasons in detail below, it is helpful briefly to summarise my principal reasons as follows, albeit at the risk of some oversimplification.
(1) My reasons for dismissing the appellants’ application for an adjournment of the hearing on 11 September 2019 are set out in detail below. In dismissing the application, I note that the seriousness of Mr [DGR]’s mental illness and his diligence in seeking treatment were not in issue. However, among other things the appeal had been adjourned on a number of occasions already and it was not in the interests of the administration of justice to adjourn it indefinitely.
(2) The Circuit Court correctly held that the Tribunal was not required to raise Mr [DGR]’s failure to mention his sexual harassment claims with him at the hearing under s 424A of the Act. This is because the information about those claims did not undermine or deny Mr [DGR]’s claims for protection and because the Tribunal was not required to give particulars of, and an opportunity to Mr [DGR] to respond to, perceived inconsistencies in his evidence.
(3) The appellants submitted that it was unreasonable for the Tribunal to place weight on the fact that Mr [DGR] did not know what his sponsor’s motives were in threatening him, when this was a matter uniquely within the sponsor’s knowledge. However, that submission is based on a misunderstanding of the Tribunal’s reasons. The Tribunal found Mr [DGR]’s account to be implausible because Mr [DGR] gave evidence that his sponsor only threatened him after Mr [DGR] was no longer employed by him and therefore when the sponsor’s leverage over him was reduced.
(4) While the appellants disagree with the Tribunal’s rejection of Mr [DGR]’s claims, it was not open to the Circuit Court to revisit those findings of fact and decide whether they were entitled to the grant of a visa. The courts can interfere with a decision of the Tribunal only where the decision is not lawfully made under the Migration Act.
2. APPLICATIONS FOR ADJOURNMENTS
2.1 Applications for an adjournment prior to 11 September 2019
5 This appeal was initially listed for hearing on 28 August 2018 in the August Full Court sitting period. In the circumstances, it is appropriate briefly to explain the reasons for the delay in hearing the appeal, and the steps taken to ensure that it was heard as soon as possible while bearing in mind the unusual circumstances of this case and, in particular, Mr [DGR]’s mental health.
6 On 10 August 2018, following correspondence from the appellants effectively seeking an adjournment which the Minister initially opposed, orders were made providing the appellants with an opportunity to file evidence in support of the adjournment application. The deadline for filing that evidence was extended several times. By orders made on 10 January 2019, the hearing of the adjournment application and the substantive appeal (if the adjournment application were to be dismissed) was set down for 18 February 2019 and then eventually adjourned to 15 May 2019.
7 The hearing of the appeal was adjourned on each occasion and the timetable amended because Mr [DGR] was in treatment for significant mental health issues, and had reported suicidal ideations. In this regard, Mr [DGR] relied upon medical documentation from the Community Mental Health Centre where Mr [DGR] was being treated, about the state of his mental health. The Minister accepted the adequacy of that evidence and for this reason very appropriately did not oppose the adjournments. Mr [DGR] has also lodged a sexual assault complaint with NSW Police, which was at the time of the hearing still being investigated and was related to his protection claims.
8 The appeal was listed for case management on 23 May 2019 and Mr [DGR]’s mental health counsellor, Dushan Ristevski, from the St George Hospital and Community Mental Health Service was cross-examined by telephone. He explained that he had met regularly with Mr [DGR] initially every week and then later every two weeks (T23/5/19 at pp. 2-9). In his evidence, Mr Ristevski explained that:
(1) Mr [DGR] presented with symptoms of post-traumatic stress disorder;
(2) the appellant remained depressed with suicidal ideation and his mental condition was impacting upon his daily functioning and his capacity to prepare relevant documents for his court hearing in that he presented in “ a very sort of confused order, couldn’t focus on the matter, couldn’t prepare even basic documents, couldn’t even follow the instructions that – basic instructions that I was giving him and presented with – presented with – it was like he doesn’t know what to do” (T23/5/19 at p. 5.41-47);
(3) Mr [DGR] had undertaken regular sessions of intervention with the psychologist from the Transcultural Mental Health Service following his review by a psychiatric registrar in late March 2019;
(4) his sessions with the Sexual Assault Unit in the hospital had not yet been completed and hopefully he would have more sessions with Transcultural Mental Health before he reached the maximum number of sessions that that organisation could give him; and
(5) two to three months was required in order to see whether the appellant’s antidepressant medication had effected an improvement in his presentation.
9 On the basis of that evidence, I made orders listing the appeal for a further case management hearing on 26 July 2019 at which point a timetable would be set and the matter listed for hearing. This course was again very appropriately not opposed by the Minister. At the case management hearing on 26 July 2019, the appeal was listed for hearing on 11 September 2019.
2.2 Reasons why the application for an adjournment of the trial on 11 September 2019 was refused
10 Shortly before the hearing of the appeal, the appellants filed a number of additional documents, namely:
(1) an affidavit of Mr [DGR] filed on 4 September 2019;
(2) a second affidavit of Mr [DGR] filed on 4 September 2019; and
(3) an affidavit of Mrs [DGR] filed on 5 September 2019.
11 The affidavits annexed a number of documents, namely:
(1) submissions referring to Mr [DGR] suffering from depression;
(2) letters dated 12 February 2019 and 29 August 2019 from Mr Ristevski; and
(3) a letter from Mrs [DGR] requesting an adjournment on the basis that she intends applying for a “medical visa” for Mr [DGR] and stating that she is unable to represent the appellants at the final hearing.
12 By email dated 6 September 2019, the Court advised the parties that the affidavits were taken to constitute an application for an adjournment. Orders were also made in chambers that the Minister file and serve a short outline explaining the reasons why the adjournment application was opposed in order to give the appellants fair notice of the case against their adjournment application.
13 Only Mrs [DGR] attended the hearing of the appeal on 11 September 2019. She submitted that she wanted to see if she could get financial assistance for her husband to be treated by a doctor for his mental health issues. She also submitted that more time was required in order to see if someone could give her legal assistance as their application for legal aid had been refused. The adjournment was opposed by the Minister.
14 At the hearing, I refused the application for an adjournment and, while I averted to some of the factors which led me to that conclusion at the hearing, I explained that I would give detailed reasons in my final reasons for decision. In this regard, as I also explained at the hearing, the Court is sympathetic to Mr [DGR]’s mental illness and no-one disputed the seriousness of his condition; nor was there any doubt that he had been diligent in seeking assistance and treatment for his condition (T11/9/19 at p. 13.40-45). Nonetheless, on balance I considered that it was in the interests of justice for the adjournment to be refused for the following reasons.
(1) The appellants have not provided medical evidence to corroborate Mr [DGR]’s incapacity to attend the final hearing on 11 September 2019 and make submissions by reason of his mental illness.
(2) The appellants did not provide a sufficient reason as to why Mrs [DGR] could not represent the appellants at a final hearing. In this regard, Mrs [DGR] submitted that “[a]ll I’m requesting is an opportunity so that when my husband is well, he is able to then tell you by himself because he’s not telling me anything about his state” (T11/9/19 at p. 4.12). This submission apparently assumes that Mr [DGR]’s knowledge of the events upon which he relied to claim a fear of persecution if returned to India and/or his knowledge of his state of mental health could bear upon the outcome of the application for judicial review. However, while it is understandable that unrepresented litigants would make such an assumption, it is not correct. As I later explain, this is not a hearing of the merits of the application for the protection visa; nor does this Court have any discretion to consider any application for a visa on medical or compassionate grounds. The power to determine whether the criteria for a visa are satisfied and to grant a visa lie exclusively with the Minister, the Minister’s delegate, and the Tribunal on review.
(3) The evidence relied upon by the appellants on this occasion did not establish that an adjournment would have any utility given, in particular, the lack of evidence as to when Mr [DGR]’s mental state could be expected to improve sufficiently for him to be able to attend Court and present arguments, assuming that his mental state rendered him currently incapable of doing so. In so saying, I accept that Mr [DGR]’s mental health issues had not resolved, although the evidence did not indicate whether or not they had improved or stabilised.
(4) The appeal had already been the subject of several adjournments and it was not in the interests of the administration of justice to adjourn it indefinitely.
(5) The fact that a person wishes to obtain legal representation is a relevant factor weighing in favour of the adjournment. However, the appellants’ application for legal aid had apparently been unsuccessful and there had otherwise been ample time within which the appellants could have obtained legal representation if they had the resources to do so or to raise funds to do so, if that was a possibility. In this regard, Mr [DGR] had earlier advised the Court at the case management hearing on 26 July 2019 that he was trying to obtain a lawyer and a date was set for the hearing of the appeal which took this into account. At this time I stressed the importance of setting a date for the hearing and acknowledged how unusual it was for the Court to have already permitted such a long adjournment (T26/7/19 at p. 4.25-37). There was no evidence to suggest that the grant of further time would enable the appellants a realistic opportunity to obtain legal representation or to raise the funds to do so.
(6) Sadly, many litigants, including those who are not fluent in English or familiar with the Australian legal system, appear in this and other courts without legal representation, including in applications such as the present which affect the fundamental rights of the individuals concerned. The Court is, however, cognisant of the difficulties faced by such litigants and endeavours to approach the hearing of appeals in these circumstances in a way conducive to ensuring that the litigants are properly heard and not unfairly disadvantaged by reason of their difficult situation.
15 As to the last of these points, as Mortimer J observed in MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32], the Court has an obligation to give the parties a reasonable opportunity to be heard. Her Honour continued:
32. … The nature of that obligation is not altered because a person is not represented by a lawyer, although its content may change in a given case. Where a person is self-represented, the Court has an obligation to ensure that the person suffers no meaningful disadvantage in the conduct of her or his case because she or he does not have the skills or knowledge of a lawyer. However, the Court must remain impartial and cannot conduct the case for the self-represented person. Nor does the fact of being self-represented relieve a party from having to prove what is necessary to be proved in order to make out a claim.
(See also BSY16 v Minister for Home Affairs [2019] FCA 140 at [6(5)] (Thawley J)).
16 In this regard, the Court, among other measures, held the hearing in closed Court, given Mr [DGR]’s claims to have been sexually assaulted by his visa sponsor and his mental health issues. The Court also arranged with Mr and Mrs [DGR]’s consent for a support person from Victims and Witnesses of Crime Court Support to be present at the hearing of the appeal, as well as the earlier case management hearing on 26 July 2019. The Court expresses its gratitude to Victims and Witnesses of Crime Court Support, as well as to the Registry for facilitating the attendance of the support person.
3.1 The application for protection visas and the delegate’s decision
17 Mr [DGR] came to Australia in 2007 on a student visa and completed various courses between 2008 and 2009. In late 2009 his wife and their son came to Australia on Tourist visas.
18 On 21 February 2012 Mr [DGR] was granted a 457 visa for a period ending on 24 April 2014. The 457 visa was cancelled in March 2014.
19 The appellants applied for protection visas on 23 May 2014. Mr [DGR] claimed that he was “a victim of workplace abuse and fraud by my 457 sponsor”. That claim as described in Mr [DGR]’s statement presented at his protection visa interview on 22 January 2015 (Mr [DGR]’s Statement) (AB134-141), may be summarised as follows.
(1) In October 2012 the sponsor of Mr [DGR]’s 457 working visa told him that he was transferring ownership of the company which employed Mr [DGR] to another person, but that Mr [DGR]’s visa would continue under the same company. Mr [DGR] did not receive a group certificate from the new owner. When he asked about it, the new owner advised that he had insufficient funds to pay his tax and superannuation, and demanded that Mr [DGR] give him $15,000 which he said he would return to him. Mr [DGR] arranged to give him $13,000 from friends, but the new owner still did not give him a group certificate.
(2) In December 2013, the sponsor demanded $40,000 from Mr [DGR] and threatened to kill him and his wife if he refused to pay or returned to India. The next day the sponsor was drunk and again demanded the money.
(3) The sponsor also sexually harassed Mr [DGR]. Mr [DGR] felt shame and became very stressed. At Mr [DGR]’s request, the sponsor gave Mr [DGR] leave for a couple of weeks. However, the sponsor threatened Mr [DGR] that, if he did not return to work with the money, the sponsor would arrange with his associates in India a “death plan” for Mr [DGR] and his family. The sponsor also had a photograph of Mr [DGR] and his family which he had taken from the appellants’ house. He had marked the photograph with a cross sign.
(4) The restaurant had closed when Mr [DGR] returned four weeks later. No one had any information for Mr [DGR]. He became very stressed again and thought that the sponsor would make a plan to harm him and his family.
(5) The applicant began to look for another sponsor because his 457 visa was due to expire in April 2014 but discovered that his sponsor had already cancelled his visa. He told his story to the then Department of Immigration and Border Protection which granted him a bridging visa.
(6) On 20 May 2014, Mr [DGR] received a telephone call from his former sponsor on an unknown number. The sponsor demanded the money, and threatened to kill the applicant and his family if it was not paid.
(7) The applicant is afraid to return to his country because his former sponsor “is still having an eye on me and waited to go back. My Country system is full of corruption and with the money power, it is easy there to perform such criminal activities.” (AB140).
20 On 22 January 2015, the delegate refused the appellants’ application for a protection visa (AB142). The delegate rejected Mr [DGR]’s claims on the ground that they were not credible. Specifically, the delegate found that:
I note that the applicant was living in Australia for seven years before he made a claim for protection and only did so when it appeared that other avenues for gaining of these are to remain in Australia had failed or were unresolved.
He claimed his former sponsor made threats and harassed him yet he is not taken any action to make complaints about that person either to the police or the workplace authorities either before he made his present application or in the seven months since.
I find that he has exaggerated possible request for money in Australia and use these as the basis for his protection visa claim that he cannot return to India. I find that it is not credible the person he claims is threatening him would have either the desire or the resources to find and harm him or his family in India.
(AB157)
21 The Tribunal rejected Mr [DGR]’s claims that his former sponsor had demanded money from him, that his sponsor had threatened Mr [DGR] because he had failed to pay money, and that Mr [DGR]’s or his family’s lives would be at risk of harm from his sponsor or his associates if Mr [DGR] and his family returned to India. The Tribunal’s reasons were accurately and conveniently summarised by the primary judge at [8] to [11] of his reasons, which I gratefully adopt:
8. ...The Tribunal relied on a number of matters.
a) The Tribunal found there were a number of omissions in the applicant’s evidence and inconsistencies between the Statement and his oral evidence to the delegate that, cumulatively, the Tribunal considered to be significant and material. Here the Tribunal referred to the applicant giving inconsistent accounts of the amounts of money his sponsor and the new owner demanded from the applicant, and the amounts the applicant claimed he paid.
b) In the Statement the applicant said the sponsor sexually harassed him, but the applicant did not refer to this when giving evidence to the Tribunal, even when the Tribunal asked him if there were any other incidents.
c) The Tribunal had difficulty accepting the plausibility and credibility of the applicant’s claim that the sponsor would threaten and demand payment from him after he ceased working for him, and after the applicant’s 457 visa had been cancelled.
d) The Tribunal found it significant that the applicant had not pursued any complaint about the alleged demands or threats against him to any relevant authority in Australia. The applicant gave inconsistent explanations why he had not complained to authorities in Australia about these matters.
e) The Tribunal found suspicious that, just after the applicant visited the Department and was told his visa had been cancelled, the applicant claimed he had received two telephone calls in which threats were made to him.
f) The applicant said he had not heard from his former sponsor after the two telephone calls, and that his family in India have had no contact or have received no adverse interest from the sponsor.
9. Because the Tribunal rejected the applicant’s claims that his sponsor demanded money from him and that his sponsor threatened him or his family with harm on his return to India, the Tribunal did not accept the applicant’s sponsor, his associates or anyone else will harm the applicant or his family upon return to India. For this reason the Tribunal was not satisfied there is a real chance the applicant will face serious harm if he were to return to India in the reasonably foreseeable future.
10. The Tribunal also considered the applicant’s claim that he fears for his son, who had been in Australia for the past six years, and the difficulty for him of returning to India. The Tribunal accepted that the applicant’s son has been in Australia since 2009, and, given his young age and stage of education, his returning to India now may be disruptive and difficult for him. The Tribunal was not satisfied, however, that disruption to education, financial hardship or other such difficulties or challenges amount to serious harm for the purposes of the s.36(2)(a) of the Migration Act 1958 (Cth) (Act).
11. Given its findings, the Tribunal found it unnecessary to consider whether the applicant’s claimed fear of harm is for a Convention reason; and, it was not satisfied there are substantial grounds for believing there is a real risk the applicant or the applicant’s son will suffer significant harm as defined in s.36(2A) of the Act if the applicant and his son were to return to India.
3.3 The Circuit Court’s decision
22 The first and second appellants appeared in person, with Mr [DGR] also appearing as litigation guardian for the couple’s child.
23 The grounds for the application for the judicial review in the Circuit Court were as follows:
1. Failing to Consider Relevant Matters – the Tribunal erred in law in arriving at the decision by failing to consider relevant matters in failing to afford an opportunity to the Applicant to respond to relevant matters.
2. Considering Irrelevant Matters – the Tribunal erred in law by considering irrelevant matters.
Particulars of Failing to Consider Relevant Matters
a) The Tribunal failed to ask the Applicant to specifically comment on his failure to mention the alleged sexual harassment by his then sponsor in his oral evidence during the hearing before the Tribunal, a matter of fact which was contained in the Applicant’s written submissions which were filed in the Tribunal.
Particulars of Considering Irrelevant Matters
a) The Tribunal erred by seeking an explanation from the Applicant as to the basis of his former sponsors threats against the Applicant and his family and the failure by the Applicant to respond to the same.
b) The Tribunal erred by making a finding that the Applicant was not telling the truth about the demands and the threats made by the sponsor based on the failure by the Applicant to report the sponsor to any authority in Australia including the Police.
24 As the primary judge found at [13], the particulars stated in the first paragraph (a) are intended to be particulars to the first ground of judicial review.
25 The primary judge rejected both grounds for reasons I explain in the context of considering the grounds of appeal.
26 The notice of appeal identifies the following grounds:
2. The Tribunal fails to ask briefly to explanation about sex harassment.
3. Error to seeking explanation applicant to seek an explanation to seek any public authority.
27 While the nature of the errors alleged in the grounds of appeal is unclear, I agree with the Minister’s submission that they should be understood as contending that the primary judge erred in rejecting the grounds of judicial review in the Circuit Court. Those grounds may be summarised as follows:
(1) the Tribunal failed to ask Mr [DGR] to comment specifically on his failure to mention the alleged sexual harassment by his sponsor in his oral evidence during the hearing before the Tribunal (Circuit Court reasons at [15]);
(2) the Tribunal took into account two irrelevant considerations, namely:
(a) the Tribunal sought “an explanation from the Applicant as to the basis of his former sponsors threats against the Applicant and his family and the failure by the Applicant to respond to the same” (Circuit Court reasons at [25]);
(b) the Tribunal took into account the failure by Mr [DGR] to report the threats allegedly made by his former sponsor to the authorities in Australia (Circuit Court reasons at [28]).
4.2 Was there a breach of the requirement in s 424A to give particulars of any information which may be the reason for affirming the delegate’s decision (Ground 1)?
28 Mr [DGR] did not tender a transcript of the Tribunal hearing in the Circuit Court but relied upon his affidavit affirmed on 31 October 2016 to establish that the Tribunal had not asked him to explain his sexual harassment claim (AB8). Specifically, Mr [DGR] gave evidence that:
6. I was really nervous and stressed during the hearing. I could not remember many of the important detail of my claim.
7. The Member did not ask me in relation to my sexual harassment claim, I was too nervous to remember mentioning this when the Member asked if there were any other incidents I would like to draw the attention to. However, this important information was specifically stated in my written statement. And during the hearing, the Member did not ask me to comment on the same when this information was already available to the Member.
29 The primary judge held that despite Mr [DGR] not being cross-examined on his evidence, the reference to “these inconsistencies” in the Tribunal’s reasons at [25]:
19. …is reasonably capable of being construed as a reference to the inconsistencies the Tribunal identified in this passage, including the applicant’s having claimed in the Statement that he was sexually harassed by his sponsor, but not mentioning that to the Tribunal when giving oral evidence. In these circumstances I am not prepared to accept the applicant’s evidence that the Tribunal did not bring to his attention that in his Statement he claimed he was sexually harassed but said nothing about that before the Tribunal.
30 At [25] of its reasons the Tribunal stated that:
25. The Tribunal also discussed with the applicant the following inconsistencies, contradictions and omissions in his written and oral evidence which, taken together, may also [have] contributed to concerns about the truthfulness and credibility of his claims. In his statement he referred to being asked by [the new owner] to pay $15,000 initially, and that he paid him $13,000. However in his oral evidence to the Tribunal today he referred to and provided a document indicating that his original sponsor . . . asked him for money and he paid him $2000, and then [the new owner] asked him to pay $50,000. In his written claims he also referred to being sexually harassed by his sponsor, but he did not mention that to the Tribunal. The Tribunal explained that these inconsistencies and omissions may contribute to reasons why the Tribunal has doubts about his truthfulness and the credibility of his claims. In response the applicant said that he was not represented at that time and this may explain any mistakes or omissions. The Tribunal noted that he has been represented again in his review application and he has had a substantial amount of time to provide explanations or submissions, and he has not.
(emphasis added)
31 In my view, there is an ambiguity in the Tribunal’s reasons as to whether or not the Tribunal discussed his failure to mention his sexual harassment claims to the Tribunal. Given that Mr [DGR] was not cross-examined on his evidence to the effect that the Tribunal did not raise this issue with him and this evidence was not inherently implausible, with respect I do not consider that the primary judge was correct to reject his evidence on this point. However, ultimately it is unnecessary to resolve this issue.
32 In this regard, the primary judge held in any event that:
20. Even if, however, the Tribunal did not bring to the applicant’s attention these matters, that would not reveal any jurisdictional error by the Tribunal. That the applicant had failed to give evidence to the Tribunal about a matter the applicant had given evidence in a statement he submitted in support of his application for a Protection visa is not information that fell within s 424A of the Act. That is so because it is not information that on its terms contains “a rejection, denial or undermining of the” applicant’s claim to be a refugee.
33 In my view, the primary judge correctly held that there was no obligation upon the Tribunal to raise these issues with Mr [DGR].
34 First, by virtue of s 422B of the Act, Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters with which they deal. Division 4 provides for the conduct of reviews by the Tribunal of decisions by the Minister’s delegate to refuse to grant a protection visa. As such, the question of whether the Tribunal was required to give the applicant an opportunity to be heard on the weight which it proposed to give to his failure to mention his sexual harassment claims before it falls to be determined by reference by ss 424A and 424AA of Division 4 of Part 7.
35 Secondly, at the time that the Tribunal made its decision, s 424A provided that:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(emphasis added)
36 Section 424AA in turn provided for the Tribunal in the exercise of its discretion to give oral particulars to an applicant at a Tribunal hearing of any information which it considered would be the reason (or part of the reason) for affirming the delegate’s decision together with an opportunity to respond to the information in accordance with the provision.
37 The information about the sexual harassment claim was given in Mr [DGR]’s Statement and was therefore information which the visa applicant gave during the process that led to the decision under review by the Tribunal for the purposes of s 424A(3)(ba). Additionally that information did not contain in its terms “a rejection, denial or undermining” of Mr [DGR]’s claims for protection: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) ALJR 1190 (SZBYR) at [17] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). The information about the sexual harassment claim was not therefore information of a nature which could engage the obligation under s 424A.
38 Conversely, no obligation arose requiring the Tribunal to give particulars of, and an opportunity to respond to, its subjective appraisal of the evidence and, in particular, to perceived inconsistencies in Mr [DGR]’s evidence or the weight which it proposed to give to the failure by Mr [DGR] to mention the sexual harassment claim before it. As Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ also held in SZBYR:
18. … if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 206 ALR 471 at 476 477] that the word "information".
"does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
39 As such, the primary judge correctly held that any failure by the Tribunal to afford an opportunity to Mr [DGR] to explain his failure to mention the sexual harassment claim did not constitute a breach of s 424A and did not otherwise give rise to jurisdictional error.
4.3 Were findings by the Tribunal unreasonable (Ground 2)?
40 The second ground challenges the primary judge’s finding that it was open to the Tribunal to rely on Mr [DGR]’s failure to report unlawful threats by his sponsor made against Mr [DGR] to the authorities as a reason for not accepting his claim to have been threatened. The primary judge understood this ground to refer to the Tribunal “asking the applicant for an explanation why, as the applicant claimed, after the applicant’s 457 visa had been cancelled, the sponsor telephoned the applicant and told him that if the applicant returns to India he will arrange for someone to harm the applicant and his family, because he is rich and can do that” (Circuit Court reasons at [25] referring to the Tribunal reasons at [17]).
41 In support of this ground, Mr [DGR] relied in the Circuit Court upon the following evidence in his affidavit affirmed on 31 October 2016:
8. The Member in the hearing asked me what would be the basis for my former sponsor threatening me like this if my visa was cancelled already. I did not know the answer to this question as I am not my sponsor, I would not know his motive to threaten or harm me.
9. I did not complain or take any action as to my previous sponsor’s demand for money, threats and sexual harassment because I was in fear that complaints and taking further action may result in retaliation from my sponsor at the time. Although I have sought advices as to reporting the sponsor to relevant government authorities. However the Tribunal found this non-action is in adverse to the truthfulness of my claim. I was not able to comment of the tribunal’s findings as this is not in the ambit of my knowledge as to the facts pertaining to my case.
10. I told the Member that my former sponsor threatened that if I go back to India, he would ask his associates to harm me and my family because I sabotaged his plan of profiting from visa sponsorship from the business he took over from my previous boss and I refused to pay the money he demanded.
11. I genuinely concerned for my family if we return to India as a country is corrupted and as long as he has the money and power, it is easy for him to retaliate on us.
12. The Tribunal was not satisfied that I would be persecuted by my Sponsor back in India and affirmed the decision made by Department of Immigration and Border Protection.
(AB9)
42 It is clear that Mr [DGR] strongly disagrees with the Tribunal’s finding that it was not persuaded that he had a well-founded fear of harm from his sponsor or associates acting at the sponsor’s direction if he were returned to India. However, the Circuit Court did not have jurisdiction to grant the appellants protection visas, to consider whether the appellants satisfied the criteria for the grant of a protection visa, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J).
43 Rather the Circuit Court’s jurisdiction was limited to deciding whether the Tribunal’s decision was made lawfully under the Act, that is, whether the Tribunal’s decision was invalid by reason of a jurisdictional error. This Court in turn must decide whether the Federal Circuit Court wrongly held that there was no jurisdictional error. The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellants’ visa applications must be assessed under the Act, or if it made a decision that was illogical or irrational and therefore legally unreasonable: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (the Court); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [76] (Hayne, Kiefel and Bell JJ).
44 As I explain, here the appellants’ complaint ultimately reduces to a claim that the findings in question were unreasonable because they were illogical or irrational. Legal reasonableness or an absence of legal unreasonableness is an essential element of lawful decision-making, it being implied that Parliament intended that a discretionary power must be exercised reasonably: Li at [26], [29] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J). In determining whether an administrative decision is vitiated by legal unreasonableness, it is essential first to bear in mind that the Court’s jurisdiction is strictly supervisory: Li at [66]. As the Full Court emphasised in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [59]:
…It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker… Nor does it involve the Court remaking the decision according to its own view of reasonableness…
(citations omitted)
45 Secondly, two contexts in which the concept of legal unreasonableness may be employed have been identified in the authorities. As the Full Court explained in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] with reference to the High Court’s decision in Li:
…Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A--CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error…
46 Thirdly, in assessing whether a particular outcome is unreasonable, the Court held in Eden at [62] that:
…it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion… Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness… Such a decision falls within the range of possible lawful outcomes of the exercise of the power…”.
47 Fourthly, where reasons for the decision provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Eden at [64].
48 Finally, it follows, as the Minister submitted, that the threshold for a finding of unreasonableness giving rise to a jurisdictional error is high (see e.g. Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [10] (Kiefel CJ); see also Minister’s supplementary submissions filed on 4 October 2019 (RSS) at [8]).
4.3.3 The findings in question were not legally unreasonable
49 I understand the appellants’ complaint to have been that it was unreasonable for the Tribunal to rely upon the fact that Mr [DGR] did not know what his sponsor’s motives were, when that question was not a matter of which Mr [DGR] would have knowledge; rather it was a matter uniquely within the sponsor’s own knowledge.
50 The Tribunal relevantly summarised its line of questioning at the hearing in its reasons as follows:
17. … When he realised he had no visa and could not apply for another visa he became very stressed and approach the Department to explain his situation. He said they told him he could return to his country and apply for another visa. The applicant said at that time he was happy to return home but then, soon after this visit to the Department, he received a phone call from a private line. He does not know the number but he recognised the voice as his former sponsor…. He told him that if he tries to return to India he will arrange for someone to harm him and his family, as he is a rich and powerful person and can do that. He could not explain when the Tribunal asked him why he would say that to him, given he was no longer his sponsor at that time.
18. The Tribunal asked the applicant if he contacted the police or any other authorities about this call. He said he did not. He confirmed he has never made any complaint to the police, Workplace Ombudsman or any other authorities about his sponsor or these threats. When asked why did not make any complaint, he said he was too stressed at that time. When asked if he has made any complaint at any time since then, he said he has not. It put to him that his failure to make any complaint or take any action in relation to these alleged demands for money and threats may lead the Tribunal to doubt whether he is telling the truth about this matter. He made no comment.
19. The Tribunal asked the applicant if there were any other threats or incidents. He said after the first call there was one more phone call, soon after he made his application. Since then he has not had any other phone calls or contact from his former sponsor or anyone else. His family in India have never been approached by anyone. The applicant said he changed his phone number some six months after a stop working.
51 The Tribunal ultimately took into account a number of concerns about Mr [DGR]’s evidence in rejecting his claims to fear harm from his sponsor. After referring first to perceived inconsistencies and omissions in Mr [DGR]’s evidence (at [34]), the Tribunal continued:
35. Secondly, as the Tribunal put to the applicant at the hearing, it has difficulty accepting the plausibility and credibility of his claim that the sponsor would threaten and demand payment from him after he ceased working for him and when his visa was already cancelled. When asked on what basis he would be able to do this as he no longer held the power of being his sponsor for the visa over him, the applicant was unable to provide any convincing response.
36. Thirdly, the Tribunal finds significant that the applicant has not pursued any complaint about the alleged demands or threats made by the sponsor against him to any relevant authority in Australia. As a result, apart from his assertions in this application there is no other evidence to support that these demands or threats were made against him. …
…
38. If the applicant’s claims about the demands for money and threats made were true, the Tribunal would consider it reasonable that he would have by now at least made some official complaint to authorities in Australia about these matters, particularly given that his employee relationship with his sponsor has terminated and his visa had been cancelled. While a claim about an unscrupulous sponsor demanding payment from a 457 worker is not entirely implausible, the Tribunal does not accept, on the limited evidence before it, and in all the circumstances referred to above this as happened in this case. The Tribunal finds that the applicant’s failure to have reported the sponsor to any authority in Australia or complained to police in relation to the threats once he was no longer in an employment relationship with him, leads the Tribunal to have doubts about whether he is telling the truth about demands or threats made against him.
39. The Tribunal also find suspicious, and detracting from the credibility of the claims, the timing of the two alleged phone calls in which the threats were made, being just after he visited the Department and was told his visa had been cancelled.
40. Finally, on his own evidence, he says he has not heard from his former sponsor since these phone calls. His family in India have also not had any contact or adverse interest from anyone in this period. The Tribunal considers the lack of any ongoing interest in the applicant or his family here or in India from his former sponsor or anyone else is another factor which detracts from the credibility of the applicant’s claims.
(original emphasis)
52 The primary judge was correct to hold at [27] that it was open to the Tribunal to question Mr [DGR] about whether he had any understanding as to why the sponsor would threaten him after Mr [DGR]’s visa had been cancelled. However, the primary judge’s finding at [27] that “[i]t was reasonably open to the Tribunal to consider implausible, as it did, that a former sponsor, for no apparent reason, would threaten a visa holder he or she had sponsored” with respect misapprehends the Tribunal’s findings at [35] (emphasis added). The phrase “for no apparent reason” does not appear in the Tribunal’s reasons and imposes, again with respect, a gloss upon the Tribunal’s actual reasons.
53 Nonetheless, the primary judge did not err in finding that the Tribunal’s findings on this issue were within the area of lawful “decisional freedom”. In this regard, I agree with the Minister’s submission that the Tribunal’s concern was not with the motives of the sponsor per se, or with Mr [DGR]’s failure to identify the sponsor’s motives. Mr [DGR] had in fact identified a motive, namely, his failure to meet all of the demands for money by the sponsor. Rather, the Tribunal found Mr [DGR]’s account to be implausible because, on Mr [DGR]’s own evidence, the sponsor did not threaten or seek to extort money from Mr [DGR] when he had the greatest “leverage” over him but waited until Mr [DGR] was no longer employed by him and the visa was cancelled at which time the sponsor’s influence and leverage was reduced (RSS at [57]). I agree that this was a logical and rational concern for the Tribunal to hold and that, coupled with the other concerns which it identified at [34] to [40] of its reasons, provided an evident and intelligible foundation for the finding that Mr [DGR]’s claims to fear harm from his former sponsor or associates were not credible.
54 Equally, the Tribunal’s concern about Mr [DGR]’s failure to report the threats alleged against him from his sponsor to the authorities in Australia was open to it, as the primary judge held at [29]. Mr [DGR]’s attempts to explain his reasons for not reporting the threats in his affidavit do not reveal jurisdictional error, as the primary judge also held (at [31]). Rather they amount to an impermissible attempt to re-argue the merits of his application for the visa. While it is understandable from the perspective of the appellants that they would ask the Court to revisit the factual findings by the Tribunal and reconsider their claims, neither the Circuit Court nor this Court has jurisdiction to do so as I have earlier explained.
55 Finally, at the hearing of the appeal an issue arose in arguendo as to whether the Tribunal had placed any weight upon any failure by Mr [DGR] to pursue complaints about his sexual harassment by the sponsor. This concern arose given that it might be thought as a matter of common knowledge that victims of sexual harassment may be hesitant to report such abuse to the authorities for many and complex reasons and therefore such abuse is often not reported for many years, if at all.
56 This issue was addressed by the Minister in the comprehensive and careful supplementary submissions filed on his behalf after the hearing. In this regard, I agree with the Minister’s submission that, on a proper reading of its reasons, the Tribunal did not place any weight on Mr [DGR]’s failure to mention being sexually harassed by his sponsor at the Tribunal hearing even though, at least as understood by the primary judge, the Tribunal’s reasons at [25] indicate that it did raise this as a possible cause for concern. As the Minister submitted:
10. Here, what counted against the appellants was the first appellant’s failure to pursue “any complaint about the alleged demands or threats made by the sponsor against him to any relevant authority in Australia” (AB297 at [36], emphasis added), not the first appellant’s failure to mention the (alleged) sexual harassment. The Minister submits that it was logical, rational and reasonable (in the requisite senses) for the Tribunal to have expected the first appellant to have made complaints to the Australian authorities (including the police) in respect of any demands (in the nature of extortion) or threats (in the nature of threats to his life and the lives of this family members).
11. Further, in view of the Tribunal’s actual reasoning, any questions regarding the general reluctance of sexual harassment victims to make complaints about past sexual harassment are simply not relevant, because the failure of the first appellant to complain of any past sexual harassment did not form any part of the Tribunal’s findings and reasons.
(emphasis in original)
57 In this regard, I note that it was not necessary for the Tribunal to address Mr [DGR]’s claims to have been sexually harassed because Mr [DGR] did not claim to fear harm if returned to India on the grounds that he had been sexually harassed by the sponsor. In so finding, I would emphasise that neither this Court nor the Circuit Court is seized of the question of whether Mr [DGR] was sexually harassed or assaulted by the sponsor and do not intend in any way to detract from the seriousness of the allegations.
58 For these reasons the appeal must be dismissed with costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
