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By virtue of Section 500(6H) of the Migration Act, 1958 (Cth), is it legally unreasonable, illogical or erroneous for a Tribunal not to have exercised it's discretion to obtain information from appellant to “fill in” the evidentiary gap that he had left?

DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229 (17 December 2021)

Intro:-

This is an appeal from orders made by the primary judge in dismissing an application brought by the appellant, DCR19, to seek judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), not to revoke a decision made by another delegate of the Minister to cancel the appellant’s resolution of status visa.

Facts:-

The appellant is a citizen of the Democratic Republic of the Congo (Congo) who arrived in Australia in 2002, aged 30.

On 13 March 2002, the appellant made an application for a protection visa as a member of the family unit of his then wife. The appellant made no claims for protection of his own.

On 28 August 2002, the appellant was granted a Temporary Protection (Class XA) (subclass 785) visa.

On 24 February 2003, the appellant’s then wife applied for a further protection visa. On 26 May 2005, the appellant was granted a temporary protection visa on the basis that he was a member of his then wife’s family unit. In each case the appellant made no separate claims in respect of himself as a distinct person, who should be owed protection.

On 26 May 2008, after separating from his then wife, the appellant applied for a permanent protection visa. In his application form, the appellant claimed that he left the Congo because his “wife’s family was politically active and consequently were persecuted by the Govt” and “as a result of the marriage, [he] was also persecuted”. The appellant also claimed that, if he was returned to the Congo, he would “still be targeted as everyone knew [his] connection with [his wife’s father] ... and [his] brother in law”.

On 28 August 2008, a delegate of the Minister made a decision to grant the appellant a Resolution of Status visa. It was not a criterion for the grant of that visa that the appellant be a person to whom Australia owes protection obligations.

Between 2013 and 2018, the appellant was convicted of various crimes. Relevantly, on 17 January 2013, he was convicted of knowingly dealing with the proceeds of crime and was sentenced to a term of imprisonment of three years and three months.

On 19 March 2018, the appellant was convicted of knowingly producing a false or misleading document and was sentenced to a term of 12 months’ imprisonment.

On 28 May 2018, the appellant’s resolution of status visa was cancelled by a delegate of the Minister (cancellation decision) under s 501(3A) of the Act, as the appellant had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment.

The appellant sought revocation of the cancellation decision by making representations to the Minister in accordance with an invitation that had been issued to him on 28 May 2018. Relevantly, the appellant’s representations in support of revocation of the cancellation decision made no reference to Australia owing any non-refoulement obligations in respect of him.

On 21 February 2019, a delegate of the Minister made a decision pursuant to s 501CA(4)(b) of the Act to refuse to revoke the cancellation decision (non-revocation decision).

Review was sought of the non-revocation decision on 22 February 2019. In the course of that review, on 26 April 2019, the appellant, for the first time since the making of the cancellation decision, claimed in an affidavit that he would be persecuted if he were returned to the Congo. His former spouse had also made an affidavit to that effect on the same date. Written submissions were also made by the appellant on the day before the Tribunal hearing in which the issue was raised.

A hearing was held before the Tribunal on 2 and 3 May 2019. In a decision made on 16 May 2019, the Tribunal affirmed the non-revocation decision. The Tribunal’s reasons for decision were comprehensive and were summarised by the primary judge at [28]-[41] of the Primary Judgement.

Tribunal's decision

The Tribunal went on to summarise the appellant’s claims and the parties’ submissions before finding that it was not satisfied that the appellant had “any subjective fear of persecution in the [Congo]”, noting that “in his response to the cancellation of his visa, [he] did not mention anything about fearing persecution in the [Congo]”. The Tribunal observed that the first time that any non-refoulement claim was advanced was in an affidavit made in the course of the review in April 2019 following the lodgement by the Minister of his statement of facts, issues and contentions. The Tribunal found that the making of that claim in those circumstances evinced an absence of “a subjective fear of persecution”.

Further, the Tribunal noted that the appellant had been separated from his wife since 2005, had been outside of the Congo for 16 years and did not share a surname with his wife or anybody in her family: Tribunal reasons at [282]. In those circumstances, the Tribunal found that it was “unlikely that any potential persecutors would remember or recognise the [appellant] or want to harm him on the basis that he was married to a family member of the family of someone who opposed the government 16 years ago. The Tribunal also found that there was no evidence to suggest that anybody in the Congo was “seeking to harm or threaten” the appellant.

The Tribunal returned to the topic of the failure by the appellant to make any representations about non-refoulement to the Minister. It said that the absence of a subjective fear of harm could be considered in determining whether there was an objective real chance that he would face serious harm or a real risk that he will face significant harm if returned to the Congo. The Tribunal observed that the failure to make representations about non-refoulement to the Minister, together with the absence in the appellant’s former wife’s statement of any discussion of the harm that he might suffer at the hands of others in the Congo, “support[ed] the view that [she] did not consider that the [appellant] will suffer harm” if he were returned to that country.

The Tribunal considered that it was “likely” that the appellant would not be found to meet the criteria for the grant of a protection visa and that his removal from Australia “will not result in any breach of Australia’s international non-refoulement obligations”. The Tribunal correctly observed that any claims made in support of a protection visa application would be determined by another decision-maker, who would not be bound by the Tribunal’s findings as to Australia’s international non-refoulement obligations. Although the Tribunal considered that there was “only a very remote possibility” that Australia would breach its international obligations, nonetheless it found that “that outcome [wa]s possible”. Accordingly, the Tribunal gave this factor “slight weight” in favour of revocation of the cancellation decision.

The Tribunal also made findings as to the harm or hardship that the appellant might suffer if he were returned to the Congo: . It found that there was a “possibility” that the appellant would be harmed if he were returned to the Congo, but that that possibility was “very unlikely”.

The foregoing considerations were weighed against factors that militated against revocation of the cancellation decision. Having weighed those factors, the Tribunal concluded that there was not another reason why the cancellation decision should be revoked.

Issues:-

1) whether the Tribunal conclusion that the appellant did not have a subjective fear of harm or persecution, if returned to the Congo was vitiated by jurisdictional error, in that the Tribunal did not afford procedural fairness to the appellant as a result of the Tribunal’s approach in considering the appellant’s evidence.

2) whether it was legally unreasonable for Tribunal not to have inquired or adjourned hearing to enable material to be put before it regarding non-refoulement, or to not have considered doing so.

3) whether the Tribunal erred by failing to consider, or to give real and genuine consideration and intellectual attention to, the impact of the Appellant's claims on Australia's international non-refoulement obligations and/or the implications of the Tribunal's finding that there was a possibility that removal of the Appellant could result in Australia breaching its international non-refoulement obligations.

Consideration:-

Ground 1 - procedural fairness ground

The Tribunal is not required to invite comment from an applicant as to their thought process on the way to making a decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Similarly, the Tribunal is not required to advise an applicant of the possibility of drawing an adverse conclusion that would be open on the material supplied by, or known to, the applicant or which otherwise derives from an obvious and natural evaluation of that material.

The Tribunal’s role was to consider the evidence and submissions that the appellant provided in support of his application for review, and then to determine whether or not his claims were made out. The Tribunal made findings that the appellant did not have a subjective fear of persecution if returned to the Congo, relevantly, for the reason that the appellant had only raised this matter shortly prior to the Tribunal hearing on 3 May 2019.

The appellant chose not to make any representations to the Minister about Australia’s non-refoulement obligations, to the extent that any obligations were owed to him. The first time that the appellant raised the issue of non-refoulement was in his affidavit dated 26 April 2019 (2019 affidavit), approximately one week prior to the appellant’s hearing before the Tribunal. The appellant’s evidence with respect to his fear of harm was brief, and was described in the following way of the Primary Judgement:-

"DCR19 only raised the claim that he feared persecution in the Congo after DCR19 had received the Minister's written contentions and once his solicitor became involved with the application before the Tribunal, a week before the hearing and after a substantial number of the 84 day period that the Tribunal had to make a decision."

The appellant was alive to the fact that he had not, prior to his 2019 affidavit, raised a claim to presently fear harm if returned to the Congo in response to the notification of the mandatory cancellation of his visa. The appellant acknowledged that he “did not provide detail of such fear” at [2] of his 2019 affidavit:

"I have grave concern about returning to the Democratic Republic of the Congo (DRC) based upon my previous refugee claims. The only reason I did not provide detail of such fear is that the form provided to me (Personal Circumstances Form) did not have any questions that raised this issue. If it did, I most certainly would have provided such detail."

Implicit in the above statement is an admission that there had been delay by the appellant in raising that claim. In doing so, the appellant put the fact of delay in issue. Having done so, the appellant cannot now complain that an adverse conclusion was reached by the Tribunal after having regard to that delay. That conclusion was open to the Tribunal on the known material.

Prior to the time that the non-revocation decision was made, the appellant was provided with an opportunity to outline any concerns or fears that he held in relation to what could happen to him if returned back to the Congo. The appellant in his "Response to Notice of Intention to Consider Visa Cancellation under s501(2) of the Migration Act 1958 or Notice of Mandatory Visa Cancellation under s501(3A) of the Migration Act 1958" (personal circumstances form), failed to provide an answer to that question on page 10, which reads:-

"Do you have any concerns or fears about what would happen to you on return to your country of citizenship?"

That question, which her Honour the primary judge described at [70] of the primary judgment, as “plainly worded” was left unanswered, and there was otherwise nothing in the request for revocation that suggested that the appellant feared persecution or harm of any kind if returned to the Congo.

What is notable is that the appellant, in a handwritten letter dated 17 June 2018, which was attached to the personal circumstances form, made the following representations:

"I have no close ties to anybody in the Congo as my family and life is now here in Australia. I will not have a job or any place to live if I were deported."

It is reasonable to take the view that, if the appellant did have a subjective fear of harm, if he were returned to the Congo, that he would have described or raised these fears within the personal circumstances form, like he did with the above representation.

Contrary to the appellant’s claim that he was denied procedural fairness as a result of the Tribunal failing to inquire or to adjourn the hearing to enable further material to be put into evidence in respect of non-refoulement, the appellant was (or ought reasonably to have been) on notice of that issue and in fact had the opportunity to put forward submissions on it. It was, in turn, open to the Tribunal to take into account not only the appellant’s delay in raising his claims to fear harm but also the explanation proffered for that delay, and to consider such matters when considering issues relating to non-refoulement.

For these reasons, the appellant was not denied procedural fairness and this ground of appeal fails

Grounds 2 - unreasonableness ground

The unreasonableness grounds turn on the proper interpretation of s 500(6H) of the Act and the determination of the appellant’s contention that the Tribunal erred in its understanding and application of that provision.

Section 500(6H) of the Act provides:

500 Review of decision

...

(6H) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

The prohibition contained in s 500(6H) of the Act is in mandatory terms. It only operates if a review applicant can show that “the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing”. The purpose of that prohibition is to ensure the expeditious determination of applications for review under s 500 of the Act, and to prevent a circumstance arising in which the Minister is taken by surprise by late changes or additions to an applicant’s case.

Consistent with that purpose, the section does not preclude the Tribunal from considering information which is not presented by, or on behalf of an applicant, including information that arises from cross-examination or answers given in response to questions put by the Tribunal. Those exceptions do not, however, diminish the force of that prohibition. Nor do they permit s 500(6H) to be approached in a manner that would render it inutile or de minimis.

The Tribunal, in the course of the hearing, asked the appellant a question about the persecution that he feared at the hands of the government on account of his association with a prominent family member, namely his brother-in-law. The following was put to the appellant in cross-examination:-

"It has been suggested that in Africa if you’re a family member of or you have the involvement with those kinds of people, that you’re persecuted by the government; is that right?---Yes."

The Tribunal member then asked the appellant the following question:-

"But that doesn’t seem to extend to any of your family members?---Yes.

So none of your family members have been harmed because of your association of your wife’s association with - - -?---No, but this – they live in the same – no, live in this place. I leave them because they no want people to go to Thailand ...."

It is clear from the above extract that the Tribunal put the appellant on notice that there was doubt as to the force of the appellant’s claim for persecution on the basis of his association with an antigovernment family member or anti-Kabila government family member, because none of the appellant’s family members in the Congo have been harmed.

In the present case the appellant was not precluded from calling any witnesses, nor was he prevented from giving oral evidence on the aspects of his claims relating to his fear of persecution if returned to the Congo. Rather, the prohibition in s 500(6H) of the Act applied only to prevent evidence that was sought to be adduced to which the Tribunal could have no regard. As Bromberg J recognised in DOM19 at [11], that is a permissible application of s 500(6H) of the Act.

In terms of the alleged unreasonableness, or illogicality components of the unreasonableness grounds, the Appellant’s contentions misunderstand the duty of the Tribunal. The Tribunal is not required to construct a case for a review applicant: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ, and nor is it under any general duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ. Rather, it is for a review applicant to put before the Tribunal the material that they wish to be taken into account and to satisfy the Tribunal of relevant statutory requirements: Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] per Davies, Derrington and Colvin JJ.

Contrary to the appellant’s contentions, the mere fact that the Tribunal has at its disposal the power to elicit for itself information which an applicant cannot themselves put forward by force of s 500(6H) of the Act does not render it legally unreasonable (or otherwise illogical or erroneous) for the Tribunal not to exercise that power. Were that not so, the Tribunal could conceivably be required to seek to bolster a review applicant’s evidence in every case before it, regardless of the content of the written material put before it by an applicant, thereby rendering s 500(6H) of the Act (and s 500(6J)) inutile. The comments made by the High Court in Minister for Home Affairs v DUA16 [2020] HCA 46 (DUA16), cannot in this regard be taken as a statement of general principle; they were uttered (as the High Court itself noted) in respect of a case the circumstances of which “[we]re extreme”. Regard needs only to be had to the unique facts of DUA16 to appreciate that the appellant’s reliance on it is misplaced. Nor did the High Court in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 (Uelese) suggest that the ability of the Tribunal to ask questions of a review applicant altered its essential function or the review process, or otherwise gave rise to a general duty to inquire.

It should also be noted that the appellant’s counsel agreed that it would undermine the purpose evident in s 500(6H) of the Act for the Tribunal simply to ask the questions itself to overcome the effect of the statutory prohibition. In those circumstances, and absent the appellant establishing that the Tribunal misunderstood or misapplied s 500(6H) of the Act (which, for the reasons given above, it did not do), it was not legally unreasonable for the Tribunal not to have exercised its discretion to obtain information from the appellant to “fill in” the evidentiary gap that he had left. In this connection, it is not irrelevant to the question of whether the Tribunal acted unreasonably that the appellant was represented during the merits review process. The appellant could have had his former legal representative prepare a detailed statement on his behalf that canvassed his claims to invoke Australia’s international non-refoulement obligations and identified the harm that he feared, whether and why that fear was current, from whom he feared harm and what he believed might happen to him if he were to be returned to the Congo. That however, was not done.

The unreasonableness grounds will fail.

Ground 3 – failure to consider grounds

The appellant contends, in the failure to consider grounds that:

(i) The primary judge erred in failing to finding that the Tribunal committed jurisdictional error by failing to consider claims made by the appellant’s former wife in 2002 and 2008, that he may face persecution if returned to the Congo.

(ii) The Tribunal erred by failing to give proper consideration to the appellant’s claims of non-refoulement.

The failure to consider grounds fail for the reasons that follow.

In deciding whether there existed another reason to revoke the decision to cancel the appellant’s visa, the Tribunal was under no obligation to have regard to the appellant’s claims to be a person in respect of whom Australia owes non-refoulement obligations. Accordingly, any error by the Tribunal in its treatment of non-refoulement, such as conflating the criteria for granting a protection visa with the question of whether a person engages Australia’s international non-refoulement obligations (which the Minister does not concede was made), was within its jurisdiction.

As to ground 5(i), no error has been shown by the appellant in the primary judge’s findings, at [81]-[82], that there was no failure by the Tribunal to consider the appellant’s 2002 and 2008 protection visa applications. The Tribunal’s reasons make plain that it had regard to the evidence put forward by the appellant in support of his claim to fear harm if returned to the Congo. The Tribunal expressly referred to the previous protection visa applications made by the appellant and his ex-wife, including in its dispositive findings at [276] of its reasons:-

"... the Applicant never made any of his own claims to fear persecution in the applications for the first two Protection visas which he was granted. Further, the Applicant gave evidence during the hearing that when his migration agent applied for a Protection visa for him in 2008, he had no idea that he was applying for a Protection visa."

In the circumstances, it can be inferred that the absence of any detailed reference to the claims that the appellant made in 2002 and 2008 is that they were not critical to the making of the Tribunal’s findings on material questions of fact.

Those circumstances included that neither the interview conducted in 2002, nor the protection visa application the appellant made in 2008, had any bearing upon the appellant’s fear of harm as at 2019. On each occasion the appellant’s claims were in general terms. Further, the appellant did not state in his 2002 interview that he feared harm if returned to the Congo. Rather, the appellant stated that no immediate threats had been made to himself or his wife, and that he had not kept up-to-date with the circumstances of his wife’s family. This is apparent from the transcript of the appellant’s airport entry interview:

Q: Is your brother in law under threat

A: I would have to check that with my wife.

Q: Why do you not know if he is under threat?

A: I haven't kept up to date about my brother in laws situation

Q: Have you or your wife received any immediate threats

A: No

Further, the 2008 application had been made without the appellant’s knowledge.

It is clear that the Tribunal undertook a consideration of what a contravention of Australia’s non-refoulement obligations would entail. The Tribunal did not equivocate on this. This was not a case where the Tribunal concluded that the appellant was a person in respect of whom non-refoulement obligations were owed, but found that the evidence before it was such that it could not properly assess the degree and nature of the harm that he might encounter in his home country. Rather, the appellant was found not to be a person in respect of whom Australia owes such obligations because the chance of his being harmed was “very remote” at [289] of the Tribunal’s reasons. Nevertheless, to account for that very remote chance of contravention by Australia of its international obligations, the Tribunal determined to give non-refoulement “slight weight in favour of revocation”: Tribunal’s reasons at [290].

The appellant’s contention that the Tribunal failed to properly “evaluate the information available to [it] about the circumstances in [the appellant’s] place of return”, “to determine what, as a matter of fact, those circumstances meant for [the appellant] on his return” and then to incorporate those findings into the resulting weighing exercise is not correct: DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2012) 278 FCR 529. Moreover the appellant’s reliance on Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 (Ali), that this failure was compounded, or caused, by a broader failure on the part of the Tribunal (equivalent to that in Ali) to recognise the distinction between the appellant’s potential eligibility for a protection visa and whether he was owed non-refoulement obligations is misplaced for the reasons that follow.

Unlike in Ali this was not a case where the Tribunal hived off non-refoulement to a later decision-making process.

Unlike in Ali, the Tribunal did not fail to appreciate the differences between the role of non-refoulement in the exercise of the discretionary power in s 501CA(4) and its place in the protection visa regime.

Unlike in Ali, the Tribunal did not conflate Australia’s international non-refoulement obligations with the criteria for the granting of a protection visa. On the contrary, the Tribunal was careful to appreciate the differences between Australia’s obligations under international law and the criteria for the grant of a protection visa.The Tribunal understood that “it is quite possible that a person may not meet the criteria for the grant of a [p]rotection visa notwithstanding that Australia may owe non-refoulement obligations in respect of the person”. No such statements appear in Ali, FAK19 or DGI19. Read in the context of its discussion of Australia’s international obligations, the references to ss 36(2)(a) and (aa) of the Act at Tribunal reasons [278]-[279] and [287] were merely shorthand for Australia’s international obligations under, respectively, the Refugees Convention and other international human rights instruments (such as the International Covenant on Civil and Political Rights and the Convention Against Torture) as enacted in municipal law. Such reasoning was entirely orthodox, as Australia’s unenacted obligations under international law “are not mandatory relevant considerations attracting judicial review for jurisdictional error”; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101] per McHugh and Gummow JJ; cited by Nettle, Gordon and Edelman JJ in Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 (Applicant S270/2019) at [35]. As Keane J observed in CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514, in a passage cited by the majority in Applicant S270/2019 [2020] HCA 32; (2020) 94 ALJR 897 at [35] per Nettle, Gordon and Edelman JJ:-

"[i]n point of constitutional principle, an international treaty made by the Executive Government can operate as a source of rights and obligations under our municipal law only if, and to the extent that, it has been enacted by the Parliament."

In particular, the Tribunal did not err in its reasons. All that the Tribunal there said was that the failure by the appellant to meet the criteria in ss 36(2)(a) and (aa) meant that Australia would not breach its international non-refoulement obligations in the event that he is removed from Australia. That was not to equate non-refoulement with the criteria for the grant of a protection visa. Rather it was to recognise that the international instruments referred to in the previous paragraph are a source of rights and obligations under domestic law to the extent that ss 36(2)(a) and (aa) incorporate Australia’s obligations under those instruments. That the Tribunal did not conflate the two processes is reinforced not only by the absence of any reference in its dispositive findings to ss 5H-5LA or ss 36(1A)-(1C) and (2A)-(7) of the Act but also its acknowledgment, at [288] of its reasons, that a decision-maker on any application for a protection visa would not be bound by the findings made for the purpose of exercising the power in s 501CA(4)."

It is difficult to see how the Tribunal was required to have regard, in the appellant’s submission, to the impact (if any) of a contravention of Australia’s international non-refoulement obligations on its “international reputation and standing”, when, first, it concluded that the appellant was not owed such obligations. Secondly, the executive dimension of non-refoulement never featured in the appellant’s submissions to the Tribunal; and thirdly, the slight chance that such obligations might be owed was taken into account in any event. Particularly where the point was never taken by the appellant, the exercise of the power in s 501CA(4) did not require a decision-maker to have regard to the damage to Australia’s international standing or reputation in the event that it contravened its international non-refoulement obligations.

For these reasons, the failure to consider grounds will fail.

Disposition

The appeal will be dismissed.

The appellant will pay the first respondent's costs of the appeal on a lump sum basis to be fixed by a Registrar of this Court in the absence of agreement between the parties.

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