Federal Court of Australia

CQV22 v Minister for Immigration and Multicultural Affairs [2024] FCA 1279

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.

2.    Pursuant to r 36.05 of the Federal Court Rules 2011 (Cth), the time within which the appellant may file the notice of appeal be extended to 21 December 2023.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs of the appeal to be agreed or assessed.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    The appellant is a Malaysian national of Chinese ethnicity, who arrived in Australia as the holder of a visitor visa on 19 April 2015. His visitor visa expired in July 2015. He applied for a protection visa on 10 January 2017.

2    A delegate of the first respondent (Minister) decided to refuse to grant the appellant a protection visa on 10 March 2017. The appellant sought review of the delegate’s decision by the Administrative Appeals Tribunal (Tribunal). The Tribunal initially held that it had no jurisdiction to review the delegate’s decision, but an application for judicial review of that decision was successful and the Tribunal was directed to determine the application for review according to law.

3    On 22 June 2022, the Tribunal made a decision on the merits confirming the decision of the delegate. On 7 July 2023, the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) dismissed the appellant’s application for judicial review of the Tribunal’s decision. The appellant now appeals to this Court against the decision of the FCFCOA.

4    For the reasons explained below, the decision of the FCFCOA has not been shown to have been affected by error and the appeal will be dismissed.

The proceedings and decision of the Tribunal

5    After the application for review by the Tribunal was remitted to it, the Tribunal initially decided to conduct a hearing on the morning of 10 June 2022. The appellant was invited to attend that hearing by letter dated 4 May 2022, which was sent by the Tribunal to the email address identified by the appellant in his application for review. The Tribunal again emailed the appellant about the hearing on each of 5 and 20 May 2022. By email sent from the same email address, the appellant thanked the Tribunal for the notification and stated, “I’ll be attending to the interview on the said date and time.”

6    Early on the morning of 10 June 2022, the appellant again emailed the Tribunal from that same email address, stating:

Hi there,

Good morning!

I have Covid alike [sic] symptoms with high fever and sore throat now!

Would it be possible to reschedule the interview please?

Apologies for unforeseen circumstances and inconvenience caused!

7    The hearing on 10 June 2022 did not proceed and by a letter dated 14 June 2022, sent to the appellant’s email address, the Tribunal advised the appellant of a new hearing date and time, being the morning of 17 June 2022; informed him that arrangements had been made to conduct the hearing by video conference; and provided a link to allow him to join a Microsoft Teams conference. The letter included the following:

On 4 May 2022, we sent a letter inviting you to attend a hearing on 10 June 2022 to give evidence and present arguments relating to the issues arising in your case.

On 10 June 2022 early morning, we received a request that the hearing be postponed. The Member has agreed to the request and the hearing has been rescheduled.

Please note that a further postponement upon medical grounds will only be granted where you submit appropriate medical evidence indicating you are unfit to attend a Tribunal hearing and the Member accepts that evidence. Unless a postponement is granted by the Member, the hearing will proceed as scheduled.

(Emphasis in original.)

8    The appellant did not attend the re-scheduled Tribunal hearing on 17 June 2022 and there is no record of any other communication from the appellant to the Tribunal following the postponement of the 10 June 2022 hearing. The apparently contemporaneous record of the hearing on 17 June 2022 records that staff of the Tribunal attempted to dial the appellant on four occasions, at 10.15am, 10.30am, 10.45am and 11.00am, and on each occasion there was no answer. On 22 June 2022, the Tribunal made a decision affirming the decision of the Minister’s delegate not to grant the appellant a protection visa. A copy of the Tribunal’s decision and reasons was sent to the appellant’s email address.

9    In the written reasons for its decision, the Tribunal (among other things):

(a)    recounted the invitation to attend and the postponement of the 10 June 2022 hearing, and the communication with the appellant about the rescheduled hearing (at [4]-[5]);

(b)    indicated that it was satisfied that the invitation to attend the hearing on 17 June 2022 was “properly despatched to the [appellant’s] email address” and why it was so satisfied, that the appellant did not attend the scheduled hearing by video link, that attempts to call him had failed and appeared to have been blocked by his mobile phone (at [5]);

(c)    recorded that the Tribunal had decided to make its decision on the review without taking any further action to enable the appellant to appear before it pursuant to s 426A of the Migration Act 1958 (Cth) (at [6]);

(d)    set out the relevant criteria for a protection visa, and related statutory definitions, in terms which appear to be accurate (at [8]-[16]);

(e)    recorded that it was satisfied that the appellant was a Malaysian national and that Malaysia was therefore the receiving country for the purposes of assessing his claims, and that he did not have a right to reside in any other country (at [18]-[19]); and

(f)    briefly but accurately summarised the appellant’s factual claims for protection (at [22]).

10    The essential reasoning of the Tribunal was recorded at [24]-[27] of its reasons, as follows:

The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. The Tribunal notes the applicant’s written claims contain limited detail regarding the harm he purportedly suffered from ethnic Malays as a Chinese Malaysian. The claims contain many dramatic contentions, including a pistol being put to the applicant’s head, yet there is a dearth of detail accompanying such serious claims. Of note, the Tribunal has afforded the applicant a meaningful opportunity to attend a review hearing to provide further detail regarding his claims for protection, however, he has not taken this opportunity. The Tribunal has, therefore, been unable to canvass the particulars of the applicant’s claims with him and it cannot be satisfied with their veracity at present.

The Tribunal also notes that, according to his protection visa application, the applicant arrived in Australia at Coolangatta Airport on 19 April 2015 holding a Visitor visa. His protection visa application indicates he made that application on 10 January 2017. Accordingly, the applicant was an unlawful non citizen from around mid-July 2015 until mid-January 2017, a period of approximately 18 months. The Tribunal is of the view that such a lengthy delay in claiming protection after arrival in Australia undermines the legitimacy of the applicant’s claims for protection.

The Tribunal also notes it would have canvassed with the applicant DFAT country information, regarding ethnic Chinese Malaysians, if he had attended a review hearing. Such country information tends to suggest there is no real chance of serious or significant harm for the applicant in Malaysia on the basis of his ethnicity. The Tribunal would also have canvassed with the applicant DFAT country information suggesting that State protection, through the Police and Judiciary, is available for him if he returns to Malaysia. In the absence of persuasive material from the applicant regarding these matters, the Tribunal places significant weight upon the DFAT country information that suggests there is no real chance of serious or significant harm for the applicant in Malaysia on the basis of his ethnicity, or for any other reason.

Having carefully considered all the evidence, the Tribunal is unable to be satisfied as to the veracity of the applicant’s claims that he has raised in his protection visa application. In particular, the Tribunal is not satisfied that the applicant (or his family) have ever faced harm in the past, or would be at any risk of facing harm in the reasonably foreseeable future, from ethnic Malays, or other criminals, or any other individual in Malaysia, for any reason. The Tribunal is also not satisfied that the applicant cannot avail himself of the protection of the Malaysian authorities if he were to return to his country of nationality.

(Footnotes omitted.)

11    The Tribunal concluded that the appellant was not a person in respect of whom Australia had protection obligations under any of the criteria in s 36(2) of the Migration Act, and affirmed the decision not to grant the appellant a protection visa.

The judicial review in the FCFCOA

12    The appellant’s originating application for judicial review in the FCFCOA identified the grounds of judicial review as follows:

Tribunal did not properly and fairly consider my claims.

1.     Tribunal considered irrelevant issues.

2.    Tribunal referred to inaccurate information, which caused it to make wrong findings.

13    The appellant also relied on an affidavit filed in the FCFCOA proceedings, in which he deposed:

1.     I experienced harm in Malaysia because of my race.

2.     I reported to police but they did not assist me.

3.     I feared to be harmed so I fled to Australia.

14    In his judgment, the primary judge identified the procedural orders that had been made in the FCFCOA proceedings and noted that the Minister had complied with those orders while the appellant had not complied with them in any respect (at [6]-[8]). Consequently, there were no written submissions from the appellant before the primary judge and his grounds of review were not further particularised or explained.

15    The appellant appeared in person in the FCFCOA with the assistance of an interpreter. The primary judge recorded (at [11]) that, when the appellant appeared at the hearing, he was asked whether he would like to make further submissions. He replied, “No.” The primary judge set out relevant passages from the judgment of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]-[10], in which his Honour had discussed the way a court should approach unparticularised grounds of judicial review in a migration case where the applicant appears in person. The primary judge also referred to several other authorities addressing the appropriate role of a judge in providing assistance to a litigant in person, and the limits of that role. The primary judge could permissibly have gone further than he apparently did in asking the appellant whether he would like to make further submissions. It would not have been inappropriate, for example, to draw the appellant’s attention to the terms of his grounds of judicial review and ask whether he was able specifically to identify the “issues” and “information” to which the grounds referred.

16    The primary judge explained why he did not consider that he should adjourn the hearing to allow the appellant a further opportunity to particularise his claims or to provide written submissions, and concluded (at [18]-[19]):

The applicant’s grounds of review were so lacking in particularity as to prevent the Court from conducting a proper hearing. The applicant failed to act in a reasonable manner in the presentation of his claims. …

The high-level of generality in the grounds of review was unacceptable, and for that reason alone, the application for review filed on behalf of the applicant is dismissed.

17    The primary judge also went on to say that, in any event, his review of the Tribunal’s decision did not disclose any obvious error in the way the Tribunal had arrived at its decision (at [20]). The primary judge identified some essential aspects of the reasoning of the Tribunal (at [21]-[23]) and concluded that the decision could not be considered legally unreasonable (at [24]). The primary judge did not address any other potential grounds of judicial review, presumably because his review of the Tribunal’s decision did not obviously suggest to him that any such grounds existed.

Extension of time

18    The primary judge first made final orders in the appellant’s application for judicial review dated 6 July 2023. The reasons for judgment of the primary judge were dated 7 July 2023, but the judgment included orders that were dated 6 July 2023. Orders in the same terms, but dated 10 July 2023, were entered on 10 July 2023. On 1 September 2023, further orders in the same terms, but dated 7 July 2023, were entered. Also on 1 September 2023, the primary judge made a further order that the orders made on 10 July 2023 be vacated. It appears likely that the orders were in fact announced by the primary judge on 7 July 2023 when he delivered his reasons for judgment, and were intended by him to have effect from that date. That would be consistent with rule 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), which provides that “[u]nless the Court otherwise orders, a judgment or order takes effect on the day it is given or made”.

19    By 1 September 2023, however, the appellant had already appealed against the orders dated 10 July 2023. The appeal was lodged on the last day within time, assuming the time within which he was entitled to appeal ran from 10 July 2023. In order to address the apparent incompetence of the appeal arising from the fact that the orders of 10 July 2023 had subsequently been vacated, and at the suggestion of the solicitors for the Minister, on 21 December 2023, the appellant filed an application for an extension of time to appeal against the orders of 7 July 2023. The Minister does not oppose the extension of time.

20    The Court would not usually grant an extension of time to appeal if the appeal did not appear to enjoy any realistic prospect of success. However, in the unusual circumstances of this case, where the appellant appealed against the orders apparently within time, in reliance on the date the FCFCOA had identified as the date on which those orders were made, and taking into account the Minister’s position with respect to the extension of time, I consider that it is in the interests of justice to grant the necessary extension of time without first considering the merits of the proposed appeal.

The appeal

21    The grounds of appeal relied upon by the appellant in this Court are as follows:

1.     Tribunal considered irrelevant issues and made its decision adverse to me.

2.     Some unfavourable findings were made wrongly. Tribunal referred to inaccurate information, which caused it to make wrong findings.

3.     There exists unfairness because my claims were not properly considered.

4.     The judge supported AAT’s unfair behaviours[.]

At the hearing of the appeal, the appellant explained, with the assistance of an interpreter, that he had been assisted by friends in the preparation of the notice of appeal.

22    Insofar as the grounds of judicial review allege jurisdictional errors on the part of the Tribunal, they will be treated as implicitly alleging error by the primary judge on the basis that he ought to have held that the Tribunal’s decision was affected by jurisdictional error.

23    Even though the primary judge had been critical of the lack of particularity in the grounds of judicial review, the grounds of appeal are, like the original grounds of judicial review, expressed only in very general terms. The appellant has not further particularised them.

24    On 12 September 2023, a registrar of this Court made orders requiring, among other things, that the appellant file a written outline of submissions no later than ten days before the date fixed for the hearing. As occurred in the FCFCOA, in this Court the Minister has complied with all relevant orders and the appellant has failed to comply with the orders that applied to him.

25    At the hearing, I drew the appellant’s attention to each of the grounds of appeal and invited him to identify specifically what he said was wrong with the Tribunal’s decision; what the “irrelevant issues” were that the Tribunal had considered; what the inaccurate information was that the Tribunal referred to; which particular claims were not properly considered; and which behaviour of the Tribunal the appellant claimed was unfair. The appellant was not able to articulate the grounds of appeal, or any complaints about the decision of the Tribunal or the judgment of the FCFCOA, with any greater particularity. He did not identify any conduct on the part of the Tribunal that he submitted was unfair.

26    In relation to the finding of the Tribunal that it was not satisfied that the appellant would suffer harm by reason of his Chinese ethnicity if he returned to Malaysia, the appellant submitted that he had lived in a rural area in Malaysia where there was strong discrimination, and that he had been unfairly treated when he was in Malaysia as a person of Chinese ethnicity. In relation to the Tribunal’s reference to the delay in the appellant applying for a protection visa, the appellant stated that, when he came to Australia, his English was not good and he did not have much knowledge. Both these submissions seem to me to be relevant only to the ultimate merits of the question of whether the Tribunal should have found that the criteria for a protection visa were satisfied. The appellant did not link them to any of the grounds of appeal and they do not demonstrate any jurisdictional error in the Tribunal’s decision.

27    The appellant’s first ground of appeal asserts that the Tribunal considered “irrelevant issues”. However, the issues that he contends were “irrelevant” and were taken into account have not been identified. Reading the Tribunal’s decision, it is not apparent to me that it did consider issues that were irrelevant in any legally relevant sense. In particular, the Tribunal was entitled to regard the appellant’s unexplained delay in applying for a protection visa after he arrived in Australia and after his visitor visa expired, as relevant to the Tribunal’s assessment of whether it was satisfied of his claims. The Tribunal correctly identified the visa criteria which it was required to address. None of the issues considered by the Tribunal was irrelevant to the Tribunal’s assessment of whether it was satisfied that the visa criteria were met.

28    The second ground of appeal asserts that the Tribunal wrongly made some unfavourable findings and “referred to inaccurate information”. Again, the appellant has not identified specifically either the findings or the information to which the ground refers. The information may be the country information which the Tribunal took into account. Even if the particular information or findings about which the appellant complains had been identified, the ground as expressed does not obviously identify any jurisdictional error. While some errors in fact finding or in the Tribunal’s approach to the assessment of country information or other evidence may constitute jurisdictional error, to contend that the Tribunal relied on inaccurate information or made wrong findings of fact is not itself to identify any jurisdictional error: see, eg, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at 16 [53]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at 508-9 [38]. The appellant has not established any error of the kind alleged in his second ground of appeal.

29    The third ground of appeal alleges that the Tribunal failed properly to consider some of the appellant’s claims. A failure of the Tribunal to consider a claim made by an applicant for a protection visa, or to engage with such a claim in a genuine intellectual process, may amount to jurisdictional error: see, eg, Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at 152 [42] (Allsop J; Spender J agreeing); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1/2021) at 598-600 [24]-[27]. However, care must be taken not to engage in review of the merits of the Tribunal’s decision: Plaintiff M1/2021 at 599-600 [26]. In this case, no particular claim has been identified as one that was overlooked or inadequately considered. It is not apparent that there was any claim advanced by the appellant which the Tribunal did not properly consider.

30    The intent behind the fourth ground of appeal is unclear. In its terms it appears to raise, for the first time, a suggestion that the Tribunal engaged in “unfair behaviour”. This is an issue that was not raised by the grounds of judicial review before the FCFCOA. It is, and remains, entirely unparticularised. That is sufficient to conclude that the ground cannot succeed: see, eg, ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59]. Although the hearing before the Tribunal ultimately proceeded in the absence of the appellant, that was because the appellant had not attended at the re-scheduled hearing. The appellant had been invited to attend the hearing and the invitation to do so was given to him a reasonable period of time before the hearing. I accept the Minister’s submissions that the appellant had made no attempt to respond to the invitation to attend the adjourned hearing or to provide medical evidence of any relevant illness after the adjournment of the original hearing. There was no apparent non-compliance by the Tribunal with the requirements of Part 7 of the Migration Act, and no basis has been identified to suggest that the Tribunal’s discretion to proceed in the absence of the appellant was unreasonable. No error by the Tribunal or the FCFCOA has been established.

Conclusion

31    The appellant has not identified any jurisdictional error on the part of the Tribunal. It follows that the orders of the primary judge are not affected by error and the appeal must be dismissed with costs.

Associate:

Dated:    5 November 2024