FEDERAL COURT OF AUSTRALIA

ANI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 798

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant is a Malaysian national of Chinese-Malay ethnicity. He came to Australia in 2000 on a student visa for the purposes of studying at Sydney University. The appellant did not complete his studies and his visa expired in August 2002. Thereafter, he remained in Australia as an unlawful non-citizen, within the meaning attributed to that phrase by the Migration Act 1958 (Cth) (hereafter, the “Act”). In 2014, he came to the attention of immigration officials and was placed into immigration detention.

2    Not long thereafter, he made an application under the Act for a protection (class XA) visa (hereafter, the “Visa Application”). That application was dismissed by a delegate of the first respondent on 5 February 2015 (that dismissal is referred to, hereafter, as the “Delegate’s Decision”). The appellant applied to have the Delegate’s Decision reviewed in what was then the Refugee Review Tribunal (that application is referred to, hereafter, as the “Review Application”). He advanced before the Refugee Review Tribunal submissions and evidence supportive of his Visa Application (hereafter, the “Initial Tribunal Evidence”). That evidence was not sufficient: the Review Application failed and the Delegate’s Decision was affirmed (that affirmation is referred to, hereafter, as the “Initial Tribunal Decision”).

3    On 11 February 2015, the appellant made an application to the Federal Circuit Court of Australia (hereafter, the “FCCA”) for judicial review of the Initial Tribunal Decision. That application succeeded and the Review Application was remitted for rehearing before the second respondent (hereafter, the “Tribunal”), which had, by then, assumed the functions of the former Refugee Review Tribunal.

4    The Tribunal heard the appellant’s Review Application over two sittings (one on 16 January 2018 and the other on 8 March 2018). On 14 August 2018, it affirmed the Delegate’s Decision (that decision of the Tribunal’s is referred to, hereafter, as the “Tribunal’s Decision”).

5    On 10 September 2018, the appellant made an application to the FCCA for judicial review of the Second Tribunal Decision (hereafter, the “Judicial Review Application”). That application was dismissed with costs on 26 November 2019: ANI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2019] FCCA 3301 (hereafter, the “Primary Judgment”; Judge Kelly).

6    By a further amended notice of appeal dated 14 May 2020, the appellant now appeals from the Primary Judgment.

The Visa Application

7    By his Visa Application, the appellant claimed that he would, as a Chinese-Malay, be subjected to relevant persecution if returned to Malaysia. He described Malaysia as corrupt and explained that Chinese Malays are treated as second-class citizens there. If returned to Malaysia, he said that he expected that he would be arrested or detained by corrupt police or immigration officials, who would appropriate his possessions and money; and, potentially, subject him to verbal and physical mistreatment (including in the form of caning). He claimed that he had been subjected to constant harassment by corrupt officials prior to his departure from Malaysia.

8    The appellant also claimed that he had no family in Malaysia and, if returned there, would be homeless and financially destitute. He claimed that he would be subjected to “homeless people” laws, under which he would be detained. In written submissions, he told the Tribunal that he could access between A$5,000 and A$6,000; but had debts of approximately A$7,000. Despite having previously worked in Malaysia as a quantity surveyor, he maintained that he would not be able to secure employment on anything more than a subsistence wage. In particular, he claimed that he no longer had and would not be able to obtain a record of his educational qualifications from the Malaysian Institute of Technology.

Legislative Framework

9    The appellant’s visa application proceeded upon his assertion that he satisfied one or both of the criteria for which ss 36(2)(a) and (aa) of the Act provide. At the time relevant to this appeal, those provisions read as follows:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…

10    Section 210 of the Act assumes some significance in this appeal (although it didn’t before the FCCA). That section provides as follows:

210     Removed or deported non-citizen liable for costs of removal or deportation

Subject to section 212, a non-citizen who is removed or deported, other than an unlawful non-citizen who came to Australia on a criminal justice visa, is liable to pay the Commonwealth the costs of his or her removal or deportation.

11    There is no controversy presently concerning the Tribunal’s jurisdiction to affirm the Delegate’s Decision, the FCCA’s jurisdiction to entertain the Judicial Review Application, or this court’s jurisdiction to entertain an appeal from the Primary Judgment. It is unnecessary to set out the legislative provisions that confer those jurisdictions.

The Tribunal’s Decision

12    The Tribunal did not accept that the appellant satisfied either of the criteria for which ss 36(2)(a) and (aa) of the Act provide. On the strength of country information, it did not accept that the appellant would be detained for any significant period of time upon his return to Malaysia, nor that he would be harassed or physically harmed by Malaysian authorities.

13    In respect of his financial predicament, the Tribunal made the following observations (Tribunal’s Decision, [54]):

With respect to his current access to mon[eys]…[the appellant] claimed that he could access between five thousand and six thousand Australian dollars, however he currently owes money to friends and his previous migration agent which would leave him with access to only about six hundred Australian dollars on departure.

14    Later in its decision (at [79]), the Tribunal referred to some submissions that the appellant had advanced in support of his Review Application. The following observations made in that respect assume some importance in the present case:

iii.     In the event the [appellant] returns to Malaysia he will have access to an amount of about $600 AUD, being about 1800 RM. The [appellant] told the Tribunal that an amount of 1800 RM is ‘quite a lot of money’ in Malaysia. The Tribunal does not accept that, upon entry at least, the [appellant] could legally be considered to be either a destitute or idle person so as to enliven the Destitute Person’s legislation. Whilst it is possible that the [appellant] could be briefly detained upon re-entry, the Tribunal does not accept that he would be detained for any lengthy period by either Immigration officials or Malaysian Police, even considering his return as a failed asylum seeker. Current DFAT country information does not support any claim that failed asylum seeker returnees are subject to lengthy detention or serious or significant harm by authorities upon return. The Tribunal finds that the [appellant] would not be subjected to either serious harm or significant harm upon re-entry into Malaysia, arising from failing to hold a valid passport or being impercunious [sic]. The Tribunal does not accept he would be subjected to such harm on re-entry by reason of his Chinese/Malay ethnicity.

iv.     The Tribunal cannot, of course, entirely discount the possibility that the [appellant] could at some future point in time bring himself within the scope of the [Destitute Persons Act 1977 (hereafter, the “DPA”)] legislation. Whether he does, at some future point in time, become destitute for the purposes of the DPA will primarily depend on the extent to which he is willing to apply himself upon return to re-integrate into Malaysian society and the workforce, it being the case that about 80% of Malaysian men are employed. The [appellant] has the added benefit of being able to speak good English. The Tribunal does not accept the [appellant’s] claims that, as a matter of course, he will be detained under the DPA legislation upon re-entry.

v.     The Tribunal does not accept that the [appellant] will be homeless upon re-entry for any prolonged period, considering he will have access to about 1800 RM and that he has Malaysian qualification in quantity surveying and many years of restaurant experience. Whilst it may be the case that he will struggle to secure quality of accommodation he may have experienced in Australia, the Tribunal considers he would nevertheless be able to access accommodation generally available to the Malaysian population in a relatively short period of time. Within his written submissions (para 67) he states as follows ‘a quantity surveyor in Malaysia earns an average salary of RM 47000 per year which is about RM4000 a month………the average expenses in Malaysia is about RM1300 a month’. If what the [appellant] submits is correct, this would indicate he would be able to survive for about five to six weeks on his available funds, which would provide some ‘breathing space’ in which to search for work and suitable accommodation.

15    The Tribunal also did not accept that the appellant’s employment prospects in Malaysia were as dire as he had intimated. On the issue of the appellant’s educational qualifications, it made the following observations (at [51]):

When the Tribunal pointed out that his proof of qualifications would likely still be held by the Training Institute in Malaysia, the [appellant] said that his Malaysian qualifications were physically stored with his now estranged family. The Tribunal did not find this response to be in any sense convincing and asked the [appellant] why he could not apply to or go to the Malaysian Institute of Technology at which he had studied to obtain a copy of his qualifications. He responded that this would have cost him money. He confirmed that he had never made enquiries with the college to prove that he had completed studies. The Tribunal accepts the [appellant’s] evidence that he did in fact study quantity surveying in Malaysia and that he had finished the course and gained practical experience over two years with his [u]ncle. The Tribunal considers that as a matter of course it would be open for the [appellant] to gain proof of his qualifications upon return to his home country. The [appellant] has worked in Australia on a regular basis post arrival and was working at the date of his detention; the Tribunal does not accept that the [appellant] would not have had money to seek a new copy of his Malaysian qualifications.

16    The Tribunal made a number of observations about the appellant’s credibility. It might be said that not all of them were consistent. Toward the beginning of its decision, under the heading “Assessing credibility”, the Tribunal noted that it “[could not] assess the appellant’s credibility”. In that section of the Tribunal’s Decision, the Tribunal recited a number of foundational principles about the care that administrative decision makers ought to exercise when assessing the evidence and submissions advanced by protection visa [appellant]s. Later, the Tribunal observed (at [56]):

The Tribunal has significant concerns about this evidence considering that the [appellant] had been in Australia for about fourteen years as of the date of his detention. The [appellant] has demonstrated a good command of the English language before the Tribunal. The Tribunal expressed its concerns to which the [appellant] responded that he had ‘heard things about refugees from war-torn countries whilst in Australia’ but he was not a person from a war-torn country, and further, he did not know about onshore and offshore visas. The Tribunal does not accept that a person in the [appellant’s] circumstances, having overstayed his visa by twelve years and having a good command of English language would not have become aware of Australia’s protection regime, including the ability to access a protection regime. The Tribunal considers that it can inform itself that during the period the [appellant] was an unlawful non-citizen in Australia there was considerable international and local media attention and public debate concerning migration issues in a general sense, and specifically, the issues of illegal entry into Australia and overstaying. Upon the expiry of his entry visa the [appellant] must have been acutely aware for the ensuing fourteen years of the potential for detention by authorities. It would be reasonably anticipated that he would have been considering his options in the event he was detained by immigration officials, which remained a reasonabl[e] possibility from 2002 up to his detention in late 2014. The Tribunal does not accept as credible his evidence that he did not become aware … of Australia’s protection regime until December 2014 when he was detained. The Tribunal finds that it was only when he was detained by authorities that he first turned his mind to the possibility of securing other avenues to remain in Australia, in this case, by seeking a protection visa.

17    Later still, the Tribunal was critical of the appellant (at [80]):

The Tribunal did not find the [appellant] to be particularly credible whilst giving evidence before it. The Tribunal is particularly concerned by his evidence to the effect he was unaware that he could seek a protection visa until soon after his initial detention in December 2014. The [appellant’s] student visa expired in 2002, some twelve years prior to the seeking of the protection visa. He has good command of English and has studied at an Australian university and participated in employment at several restaurants. It defies credibility for him to rely on this claim; it is not credible that he would have not have become aware of the protection regime at some point in time between 2002 and 2014. The Tribunal does not accept the [appellant’s] evidence upon this issue.

18    One aspect of the Tribunal’s Decision that assumes some significance in this appeal concerned the Initial Tribunal Evidence and the Initial Tribunal Decision. The Tribunal noted (at [4]; bolded emphasis added):

The Tribunal as originally constituted affirmed the delegate’s decision on 17 March 2015. That decision was set aside by the Federal Circuit Court on 5 September 2017. The matter is now before the Tribunal pursuant to orders of that Court that the application be reheard by the Tribunal according to law. To ensure that the Tribunal as currently constituted retains its objectivity it has not familiarised itself with the original Tribunal decision.

19    The Tribunal later made reference to having “…familiarised itself with the original departmental file and the file relating to the Federal Court [sic: FCCA] proceedings” before making its decision.

The Appeal and the Judgment Below

20    It is unnecessary to invest any time analysing the reasons of the FCCA in the Primary Judgment. That is so for two reasons.

21    First, the grounds upon which the appellant submitted in this court that the Tribunal’s Decision was the product of jurisdictional error were substantially different to those that were advanced before the FCCA. The first respondent—sensibly, if I might say so—did not object to the appellant having leave to agitate those new points and that leave was granted; but the consequence, of course, is that the FCCA did not have occasion to address the bulk of what the appellant now agitates before this court. There is, in other words, no analysis below to recite, at least on those new aspects of the appellant’s case.

22    Second (and to the extent that the appellant’s case on appeal mirrored what he advanced below), the FCCA’s reasons for declining the relief that was claimed have little bearing on the analysis in which this court must now engage. If the Tribunal’s Decision was attended by jurisdictional error as the appellant contends, it will necessarily follow that the FCCA’s conclusion to the contrary was in error and the appeal should succeed. Likewise, if the Tribunal’s Decision was not so tainted, then the FCCA’s conclusion to that effect will have been correct and the appeal should fail. Either way, it is upon the Tribunal’s Decision, rather than the Primary Judgment, that this court’s attention must focus.

23    Before this court, the appellant advanced the following grounds:

1.     The Federal [C]ircuit Court erred in not finding that the decision of the Second Respondent (“the Tribunal”) was affected by jurisdictional error in that it failed to have regard to relevant considerations.

Particulars

(a)     The Tribunal failed to have regard to the evidence of the Appellant given to the Refugee Review Tribunal as constituted for its review of the Appellant’s matter in 2015, to be inferred from:

(i)     the Tribunal’[s] statement that “it has not familiarised itself with the original Tribunal decision” (Tribunal’s Statement of Decision and Reasons, [14])

(ii)     The Tribunal referring to “The initial claims for protection as made to the Department” (Tribunal’s Statement of Decision and Reasons, [26]-[38]) and to “The Federal Court remittal and ‘fresh Tribunal hearing’” (Tribunal’s Statement of Decision and Reasons, [39]-[62]) but not to the Appellant’s evidence before the Refugee Review Tribunal as constituted for its review of the Appellant's matter in 2015.

(b)     The Tribunal found that the Appellant had access to between five thousand and six thousand Australian dollars, and concluded that he would after payment of debts have about six hundred Australian dollars if he were to depart and return to Malaysia, but in making this finding it failed to have regard to section 410 [sic: 210] of the Migration Act 1958 and to the evidence of the Appellant in his first Submission to the Tribunal that he “owed about AUD 7,000”. (Appellant’s submission to the Tribunal, AB 149, [78])

2.     The Federal [C]ircuit Court erred in not finding that the decision of the Second Respondent (“the Tribunal”) was affected by jurisdictional error in that it was unreasonable

Particulars

(a)     The Tribunal had no logically probative evidence from which it could have found that the Appellant had any money which he could take with him from Australia after payment of his debts, and therefore no basis for its findings that he would not be homeless or destitute on return to Malaysia and not at risk for these reasons. The Appellant refers to particular (b) to Ground 1 of this Amended Notice of Appeal.

(b)     Further to particular (a) to this Ground of Appeal, the Tribunal had no evidence from which it could have concluded that he would have a balance of about six hundred Australian dollars if he were to depart.

(c)     The Tribunal found “that as a matter of course it would have been open for the [appellant] to gain proof of his qualifications upon return to his home country.” (AB 196 [51])[.] This finding was based on no evidence at all but on the unjustified assumption by the Tribunal that 18 years after leaving Australia and 21 years after obtaining the qualification (AB 33) the educational records would be available in Malaysia.

24    Those grounds were substantially better articulated than the ones upon which the appellant relied before the FCCA. There, the Judicial Review Application was based upon the following grounds (errors original):

1.    MISUNDERSTANDING AND/OR MISCOUNTRUCTION [APPELLANT’S] CLAIM

 2.     APPLYING THE WRONG TEST OR REASONING

3.     EVIDENCE USED BASED ON MATERIAL OR INFORMATION UNTESTED FOR FACTS AS SET OUT IN S.430(1)(C) OF THE ACT

 4.     ERROR OF FACT

 5.     ILLOGICAL OR IRRATIONAL PROCESS OF REASONING

6.     IGNORING RELEVANT MATERIAL AND/OR INFORMATION WHEN REASONING

7.     OMISSION OF RELEVANT MATERIAL AND/OR INFORMATION WHEN REASONING

 8.     FALLACY

9.     ABSENCE OF LEGAL ASSURANCE OF PROTECTION IF THE [APPELLANT] WILL BE DEPORTED TO RECEIVING COUNTRY

10.     BREACH OF S.422B OF THE ACT

11.     NATURAL JUSTICE AND HUMAN RIGHTS SHOULD BE PARAMOUNT

25    For the reasons that follow, I do not accept that the Tribunal’s Decision was affected by jurisdictional error in any of the ways that the appellant contended. The FCCA did not err by concluding as it did and the appeal should (and will) be dismissed.

Ground 1: failure to take account of relevant considerations

26    The appellant contends that, in reaching its decision, the Tribunal failed to take account of two matters that it was obliged to consider, namely:

(1)    the Initial Tribunal Evidence; and

(2)    that, if removed from Australia, the appellant’s debts would exceed his available funds.

27    It is convenient to deal with each of those particulars in turn.

The Initial Tribunal Evidence

28    The appellant fixes upon the Tribunal’s statement (above, [18]) about its having “…not familiarised itself with the [Initial Tribunal Decision]” and the fact that the Initial Tribunal Evidence is not referred to anywhere in the Tribunal’s Decision. He submits that it can be inferred that the Tribunal did not consider the Initial Tribunal Evidence. Its failure to do so, he says, amounts to jurisdictional error.

29    Before me, the appellant was unable (for reasons not of his counsel’s making) to identify any aspects of the Initial Tribunal Evidence that differed from the evidence and submissions that he advanced for the purposes of the rehearing of his Review Application. No evidence was led (neither before the FCCA nor this court) on that score. There was no evidence to suggest that the appellant had, by incorporation, relied upon the Initial Tribunal Evidence for the purposes of the rehearing of his Review Application.

30    Three questions arise from the appellant’s submission, namely:

(1)    was the Tribunal obliged to consider the Initial Tribunal Evidence;

(2)    assuming that it was, should the court infer that it failed to do so; and

(3)    if there was such a failure, was it material (such as might reflect jurisdictional error)?

31    Generally speaking, the hearing of a matter (or a part of a matter) that a court remits for rehearing proceeds as a hearing de novo: SZGUW v Minister for Immigration and Citizenship (2009) 108 ALD 108, 114 [19] (Reeves J). In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented “…at that hearing”: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203 [13] (Gleeson CJ, Gaudron and Hayne JJ). In effect, the “…informant or complainant starts again”: Harris v Caladine (1991) 172 CLR 84, 124-125 (Dawson J, with whom in the result Mason CJ, Deane, Gaudron and McHugh agreed; Brennan and Toohey JJ dissenting). It is, then, not at all apparent that the Tribunal in the present case was obliged to consider the Initial Tribunal Evidence.

32    In any event, even assuming that the Tribunal was obliged to consider the Initial Tribunal Evidence, I do not accept that the court should infer that it failed to do so. The Tribunal’s acknowledgment that it had not read the Initial Tribunal Decision does not, in or of itself, imply any such failure. The bases upon which the Initial Tribunal Decision was founded were not relevant to the Tribunal’s task. Had it considered them, the Tribunal might well have found itself open to the charge that it had let irrelevant considerations guide its determination. Its inclination not to review the Initial Tribunal Decision was sound; but it does not follow from that that it should be understood also to have excised from its consideration the evidence and submissions that were advanced before the Refugee Review Tribunal. That fact of non-consideration of the Initial Tribunal Decision is not a sufficient foundation upon which to draw an inference that the Tribunal also disregarded the Initial Tribunal Evidence.

33    Indeed, there is ample reason to suspect the opposite. The Tribunal’s Decision records that the Tribunal had occasion to review “the original departmental file and the file relating to the Federal Court [sic: FCCA] proceedings”. What those files contained was not the subject of evidence, either before this court or the FCCA; but there is fertile ground for suspecting that they contained what it now said to have gone unconsidered. It is neither necessary nor possible to reach a concluded view on that; but the fact that the Tribunal reviewed those materials (whatever they might have been) inclines against the drawing of the inference that the appellant now invites the court to draw.

34    The fact that the Tribunal’s Decision makes no specific reference to the Initial Tribunal Evidence (as a whole) is also not significant. The Tribunal’s obligation was to take account of the discrete submissions that were advanced before it and the discrete fragments of the evidence with which it was supplied. It was not obliged to refer to every piece of evidence placed before it: Minister for Home Affairs v Buadromo (2018) 267 FCR 320, 333 [48] (Besanko, Barker and Bromwich JJ). Its failure to advert, in a global sense, to having considered the Initial Tribunal Evidence is not noteworthy.

35    The Tribunal’s Decision makes extensive reference to the discrete submissions that the appellant advanced in support of his Review Application and to the evidence that the appellant placed before it in those regards. In the absence of some suggestion that the Initial Tribunal Evidence differed in some way from the evidence and submissions to which the Tribunal referred, I cannot identify any sound basis upon which to infer that there was anything said or any evidence tendered prior to the Initial Tribunal Decision that went unconsidered for the purposes of the rehearing.

36    For those reasons—and even assuming that the Tribunal was obliged to consider the Initial Tribunal Evidence—I do not infer that it failed to do so.

37    But even if I were wrong so to conclude, it does not follow that the appellant should be understood to have established the presence of jurisdictional error. A failure to take account of relevant considerations (if that is what occurred) will not amount to jurisdictional error unless it is material, in the sense identified by the High Court in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 134-135 [29]-[31] (Kiefel CJ, Gageler and Keane JJ). The burden of establishing materiality rests, in this case, with the appellant.

38    The appellant contends that the error (assuming that there was one) was material for either or both of two reasons. First, he says that there might have been something within the Initial Tribunal Evidence that, had it been considered for the purposes of the rehearing, might have led the Tribunal to determine the Review Application in his favour. Second—and even assuming that the Initial Tribunal Evidence did not trespass beyond subjects to which the Tribunal’s consideration was directed—he says that that consistency might have impacted upon the Tribunal’s assessment of his credit, which in turn might have swayed it toward a different determination.

39    With respect, neither of those contentions can be accepted. In the absence of evidence showing some particular submission or evidence to which the Tribunal did not direct its attention, it is not possible to conclude that there was anything said or advanced for the purposes of the Initial Tribunal Hearing that went unconsidered in the rehearing. Likewise, the possibility—and, again, in the absence of evidence, it is no more than a possibility—that the Tribunal might have been made aware of some consistency in the appellant’s accounts is neither here nor there. The Tribunal’s assessment of the appellant’s credibility (see above, [16]-[17]) did not rest upon any want of consistency to what he had advanced. There is no warrant for supposing that an acknowledgment of consistent accounts might have had any bearing upon the Tribunal’s credibility assessment.

40    The appellant has not, then, discharged his onus of establishing that the Tribunal’s failure to consider the Initial Tribunal Evidence (if such a failure there was) was relevantly material.

The appellant’s impecuniosity

41    The appellant next complains that the Tribunal failed to take account of considerations concerning his financial predicament. The Tribunal concluded that the appellant would have access to approximately A$600 upon his removal to Malaysia. That conclusion, the appellant says, failed to take account of his evidence, which was to the effect that he could access between A$5,000 and A$6,000 but had debts of approximately A$7,000. The appellant also contended that the Tribunal’s conclusion failed to take account of the effect of s 210 of the Act, which was to leave him liable for the costs of his removal. Those costs, he submitted, would leave him in an ever more parlous financial state. Had the Tribunal been alive to that reality, he submits that it might have been drawn into determining his Review Application differently.

The appellant’s net financial position

42    In the hearing before me, some confusion reigned as to the origins of the Tribunal’s conclusion that the appellant would have access to A$600—or approximately 1,800 Malaysian ringgit—if returned to Malaysia. Counsel for the appellant suggested, albeit without the assistance of a transcript of the proceedings before the Tribunal, that that amount was the Tribunal’s own calculation, and that it betrayed a failure on the Tribunal’s part to take account of the appellant’s written evidence that he had debts of approximately A$7,000.

43    The Tribunal’s Decision does not refer to the appellant’s written evidence that he had debts of approximately A$7,000. It does, however, appear to refer to other evidence that he gave, including that he would “…have access to an amount of about $600 AUD, being about 1800 RM [and] that an amount of 1800 RM is ‘quite a lot of money’ in Malaysia” (above, [13]-[14]).

44    Even if the Tribunal should be understood to have overlooked the appellant’s evidence that he had debts of approximately A$7,000, its conclusion that he could access $600 AUD would, on the appellant’s submission, remain unexplained. Three possible explanations are apparent: first, that the Tribunal overlooked the evidence about the A$7,000 of debt altogether and mistakenly concluded that the A$5,000 to A$6,000 to which he had access was, instead, only worth A$600; second, that the Tribunal took account of that evidence about his debts but wrongly calculated his net position; and third, that there was additional evidence given that was inconsistent with (or, perhaps, an update upon) the appellant’s earlier, written evidence.

45    The third of those possibilities is plainly the most likely. In the absence of evidence to the effect that the appellant did not say what the Tribunal, in its decision, appears to attribute to him—namely, that he had access to approximately 1,800 Malaysian ringgit (or $600 AUD), which was “quite a lot of money” in Malaysia—I am unpersuaded that it is appropriate to infer that the Tribunal failed to take account of a material consideration (specifically, the appellant’s written evidence that he had debts of approximately A$7,000).

46    In any event, the Tribunal’s conclusion concerned the funds to which the appellant would, upon removal to Malaysia, have access; it did not focus upon his net financial position. Whatever might have been the appellant’s debt situation, there appears to have been ample evidential foundation for the Tribunal’s conclusion that the appellant had access to funds sufficient to avoid homelessness. It was not necessary for it to refer to the evidence that he gave about his debts. In the absence of such a need, I would not infer that the Tribunal overlooked that aspect of the evidence.

The effect of s 210 of the Act

47    It might readily be accepted that s 210 of the Act would leave the appellant liable for the costs of his removal to Malaysia and that those costs would impact adversely upon his net financial position. At issue presently is whether that was a circumstance that the Tribunal was obliged to consider and whether, if it was, its failure to do so amounts to jurisdictional error.

48    The source of the Tribunal’s obligation to consider the effect of s 210 of the Act is not easily identified. There is no evidence to suggest that the appellant raised it as a matter of which the Tribunal ought to be conscious when determining his Review Application. Counsel for the appellant simply contended that the effect of s 210 was relevant to that determination and that the Tribunal was obliged to take account of matters that were relevant in that sense.

49    Respectfully, I do not accept that that is so. Even assuming that the Tribunal was obliged, by a process of statutory implication, to take account of the legal consequences of its decision (see, for example, NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (Allsop CJ, Buchanan and Katzmann JJ)), I do not accept that the possibility of the appellant attracting additional debt qualifies in that regard. The appellant’s pending removal from Australia was a function of his status as an unlawful non-citizen (within the meaning that the Act attributes to that phrase). The Tribunal’s Decision did not change that status (although, plainly, it would have had it been differently decided).

50    I do not accept that the Tribunal was obliged to turn its mind to the wide (if not infinite) array of potential consequences that its determination might indirectly visit upon the appellant. True it is that the appellant might have amassed additional debt relating to the costs of his removal from Australia. Equally possible, that debt might have been excused or arrangements might have been made for its repayment over time. Perhaps more likely, the appellant might never have been called upon to pay it. It was not necessary for the Tribunal to speculate about such matters.

51    Moreover, the appellant’s net financial position and what funds he could access were not the same thing. It was open to the Tribunal to conclude, as it did, that the appellant had funds sufficient to stave off destitution, at least in the short term and even assuming that he would eventually need to repay his debts (including those related to his removal from Australia). The Tribunal did not need to advert to (or take account of) the effects of s 210 of the Act in that regard.

52    I do not accept that the Tribunal’s failure to take account of the effect of s 210 of the Act reflects jurisdictional error on its part.

Conclusions as to ground one

53    Ground one of the amended notice of appeal is not made out. The Tribunal’s Decision was not the product of jurisdictional error in any of the ways there alleged.

Ground 2: legal unreasonableness

54    To a substantial degree, the appellant’s charges of legal unreasonableness overlap with his contentions about the considerations of which he claimed that the Tribunal failed to take account.

55    The applicable legal principles were not materially in dispute. By his written outline of submissions, the appellant summarised them as follows (references omitted):

34.     The Tribunal is obliged to act reasonably and according to logically probative evidence. An administrative decision maker, such as the [Tribunal], falls into jurisdictional error if it makes findings which are illogical in the sense of being unsupported by any probative evidence. It also falls into jurisdictional error if it acts so unreasonably that no reasonable decision maker could so have acted.

56    The appellant contends that the Tribunal’s Decision discloses legal unreasonableness in three respects. The first two—which concern his impecuniosity—are equivalent to what has already been addressed in the context of ground one. It is convenient to deal with those two aspects of this ground together, and the third separately.

Assessment of the appellant’s financial predicament

57    By his written outline of submissions, the appellant complained that:

…because the Tribunal failed to advert to section 210 of the Act and to the [a]ppellant’s submission that he owed $7,000, it relied on a misapprehension of the evidence and the law, and was thus unreasonable in that it had no logically probative evidence from which it could have found that the [a]ppellant had any money which he could take with him from Australia after payment of his debts, and therefore no basis for its findings that he would not be homeless or destitute on return to Malaysia and not at risk for these [sic] reason.

58    For the reasons already outlined above ([42]-[52]), I do not accept that it was legally unreasonable for the Tribunal to conclude as it did as to the funds to which the appellant would have access upon his removal to Malaysia. That conclusion—that he would have access to 1,800 Malaysian ringgit—did not lack an evident or intelligible justification, and was not otherwise beyond the Tribunal’s “decisional freedom”: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, 171 [62] (Allsop CJ, Griffiths J, Wigney J).

Access to educational qualifications

59    The appellant contends that the Tribunal had no basis for its conclusion that “…as a matter of course it would have been open for the [appellant] to gain proof of his qualifications upon return to his home country” (above, [15]).

60    At the core of the appellant’s complaint is that the Tribunal’s conclusion was based upon an assumption: namely, that the institution from which the appellant obtained his qualification as a quantity surveyor (prior to coming to Australia) would, some two decades later, be in a position to supply him with a record of his studies. That assumption, the appellant contends, was not rooted in any evidence and was one upon which the Tribunal unreasonably relied.

61    With respect, that submission should be rejected. In the absence of evidence to the contrary, the Tribunal was entitled to proceed upon the assumption that it drew. That assumption was consistent with ordinary human experience. Assumptions of that nature, of course, might not prove to be vindicated; but that does not mean that reliance upon them is unreasonable in the sense recognised by the law. In DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91, [100] (Beach, O’Callaghan and Anastassiou JJ), the court confronted a similar contention about a finding concerning the willingness of family members to act as guarantors for failed Sri Lankan asylum seekers:

[I]f there is evidence that a person has family in the country of return, a decision-maker may permissibly reason that a family member may be prepared to act as guarantor (if that is required), unless the person puts forward reasons why the family member cannot or will not do so. But to so reason may first require that the decision maker has put the person on notice as to the guarantee question.

62    Equivalent reasoning grounded the judgment of the High Court in Republic of Nauru v WET040 (No 2) (2018) 93 ALJR 102, 108 [29] (Gageler, Nettle and Edelman JJ).

63    As the Tribunal’s Decision makes plain (above, [15]), the possibility of the appellant retrieving a record of his qualifications was raised in the context of the Review Application. The appellant did not suggest that their retrieval would be impossible. Instead and simply, he indicated that doing so would cost him money (despite his having never made enquiries to that end with the relevant institution). Armed with those responses, there was nothing remarkable—and certainly nothing that rose to the standard of extreme illogicality or irrationality—about the Tribunal concluding that the appellant would be able to obtain a record of his qualifications “as a matter of course”.

64    The Tribunal’s conclusion did not lack an evident or intelligible justification, and was not otherwise beyond the Tribunal’s “decisional freedom”.

Conclusions as to ground two

65    Ground two of the amended notice of appeal is not made out. The Tribunal’s Decision was not the product of jurisdictional error in any of the ways there alleged.

Conclusion

66    None of the appeal grounds upon which the appellant relies is made out. The appeal must (and will) be dismissed with costs.

67    The court records its gratitude to counsel for the appellant, who came into the matter late and agreed to act pro bono. Although they have not succeeded, the submissions advanced on the appellant’s behalf were of much assistance.

Associate:

Dated:    12 June 2020