AAJ17 v Minister for Immigration and Border Protection

1. INTRODUCTION 1 The appellant, a citizen of Malaysia, claims to fear persecution or significant harm if returned to Malaysia from gangsters and loan sharks by reason of a significant debt allegedly owed by her husband. 2 The appellant appeals from the decision of the Federal Circuit Court (the FCC) dismissing her application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) given on 9 December 2016. By that decision, the Tribunal affirmed a decision by a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). 3 I note that the appellant is not in immigration detention. 4 The Minister filed written submissions in advance of the hearing. While the appellant did not file submissions in advance, the appellant made submissions at the hearing assisted by a NAATI accredited Level 3 (Professional) interpreter in Cantonese and English. 5 For the reasons set out below, the appeal must be dismissed.

2.1 The application for a visa and the delegate's decision 6 The appellant applied for a protection visa on 30 June 2016. She claimed to fear harm from a criminal gang who allegedly targeted her and her family for a number of illegal reasons. The appellant's claims may be summarised broadly as follows (bearing in mind that the appeal concerns an applicant for a protection visa whose identity is protected by a pseudonym and that there is a corresponding need to avoid potentially identifying details). (1) In mid-2006, the appellant's husband received threats of violence and lodged a police report. (2) Her husband was abducted in 2008 but was released on payment of a ransom. (3) In late 2008, a man threatened to cause problems at her husband's business claiming that he had been overcharged. (4) In mid-2009 a number of Chinese men demanded that a debt be paid by her husband's business. Her husband disputed this debt. (5) In 2009, one of her staff members received a call from a "hired gangster" who stated that he had been engaged to destroy the business. He threatened to hurt the appellant's family and demanded payment from them. (6) In early 2010, the appellant and her children were harassed by gangsters. The appellant's husband, who had been in Australia, returned to Malaysia as a result. However, he also began to be harassed by the gangsters and had to hide from them. (7) Owing to his fear, the appellant's husband travelled to Australia and applied for a student visa. He subsequently applied in April 2014 for a protection visa. (8) The appellant, however, decided to stay and hide in Malaysia so that she could care for her mother and because her children wanted to continue with their studies. However she was subsequently threatened in mid-2010 by a number of Chinese men. (9) Gangsters and loan sharks twice threatened to kidnap the appellant's children. (10) The appellant and her children began to hide in various locations to avoid the gangsters and loan sharks. Her children also changed schools and only attended school on certain days due to a fear of harm. (11) The appellant travelled to Australia but returned to Malaysia on a number of occasions between 2013 and 2015 because she was caring for her ill mother who had remained in Malaysia. 7 On 28 July 2016, the delegate refused to grant the appellant a protection visa. The delegate found that the appellant's fear of harm had no link to any of the reasons provided for in s 5J(1)(a) of the Act (that is, race, religion, nationality, membership of a particular social group, or political opinion) and that the appellant was therefore not a "refugee" as defined in s 5H. As a consequence, the delegate found that the criterion for a protection visa in s 36(2)(a) of the Act (the Refugee Criterion) was not satisfied. Nor, the delegate found, was the appellant entitled to complementary protection under s 36(2)(aa) of the Act on the ground that the delegate was satisfied that the Malaysian authorities can provide a sufficient level of protection to remove the perceived risk of harm.

2.2 The decision of the Tribunal 8 On 8 August 2016, the appellant applied for review of the delegate's decision by the Tribunal. The appellant was invited to attend a hearing before the Tribunal by a letter dated 7 October 2016 and attended that hearing on 25 November 2016. On 9 December 2016, the Tribunal affirmed the delegate's decision but on a different basis, namely, that the Tribunal did not find the appellant to be a credible witness and did not believe her claims to fear harm: see further below. As a result, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia owed protection obligations either under s 36(2)(a) or s 36(2)(aa) of the Act. 9 In its reasons, the Tribunal also noted as a preliminary matter that certificates had purportedly been issued by the Department of Immigration and Border Protection (the Department) under s 438(1)(a) of the Act. Under that provision, the Minister may certify that the disclosure of information would be contrary to the public interest for any reason specified in the certificate that could form the basis of a claim by the Commonwealth in judicial proceedings that the information should not be disclosed. However, the Tribunal considered that the certificates were clearly invalid because the reasons given for the certificates did not provide a basis for public interest immunity (applying MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081). The Tribunal found that it was not necessary to put this information to the appellant in accordance with s 424A of the Act because "the Tribunal does not consider that it constitutes in any sense a rejection, denial or undermining of her claims and does not consider, therefore, that it would be the reason, or a part of the reason, for affirming the decision under review" (Tribunal reasons at [10]).

2.3 The decision of the Federal Circuit Court 10 The amended application for judicial review of the Tribunal's decision in the Federal Circuit Court raised four grounds, namely: 1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon her returns to Malaysia 2. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information. Particular: The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act. 3. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act. 4. The Tribunal has failed to investigate applicant's claim, specially the grounds of persecution in Malaysia. Therefore the Tribunal decision dated 9 December 2016 was effected by actual bias constituting judicial error. (errors in the original) 11 The primary judge found that no jurisdictional error was established and dismissed the application for reasons which can be summarised as follows. First, the primary judge found that Ground 1 sought to take issue impermissibly with the Tribunal's adverse credibility findings. The primary judge found that those findings were open on the material before the Tribunal and did not lack an evident and intelligible justification. The primary judge also found that the Tribunal correctly identified and applied the relevant law. Secondly, Ground 2 did not identify any information that might enliven the obligation under s 424A of the Act (which requires the Tribunal to put to the visa applicant, information which it considers would be the reason or part of the reason for affirming the delegate's decision). Thirdly, in relation to Ground 3 the appellant ultimately expressed only her disagreement with the Tribunal's adverse findings and, on the face of the material before the Court, the Tribunal complied with its statutory obligations and obligations of procedural fairness. In relation to Ground 4, the primary judge found that the Tribunal was not under a duty to investigate the appellant's claims, and correctly understood them. Further the allegations as to bias were not particularised and there was nothing to suggest that the Tribunal was actually biased against the appellant. 12 Finally, the primary judge noted that the Minister in accordance with his duty as a model litigant, had drawn the Court's attention to the issue of the s 438 certificate. However, his Honour held that there was nothing to indicate that the Tribunal acted on the certificate or had taken it into account. The primary judge was satisfied that, to the extent that there was a failure to disclose the certificate, it could not have given rise to any practical injustice and impacted on the outcome of the Tribunal's decision.

3.1 The limited function of a court on judicial review and on the appeal 13 It is important to explain at the outset the limited circumstances in which the FCC may find an error on a judicial review application which would justify the Court setting aside or quashing the Tribunal's decision. The jurisdiction of the FCC is confined to deciding whether the Tribunal's decision was made lawfully under the Act, that is, whether the Tribunal's decision is invalid by reason of a jurisdictional error. This Court in turn must decide whether the FCC wrongly decided that there was no jurisdictional error. The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant's visa application must be assessed under the Act, the Tribunal's decision was illogical or irrational, or if the Tribunal failed to hear and determine the appellant's application in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). 14 However, neither the Federal Court nor the FCC has jurisdiction to grant the appellant a visa, to consider whether she satisfies the criteria for the grant of a protection visa, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). As for example, French CJ, Bell, Keane and Gordon JJ explained in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at 184-185: 23 It is necessary to make some preliminary observations in relation to the constraints within which the plaintiff's challenge to the validity of the Delegate's decision fall to be determined. The constraints are aspects of the scope of judicial review of administrative action, which is confined to the legality of the Delegate's decision. In particular, judicial review is concerned with whether the Delegate's decision was one which he was authorised to make; it is not: "an appellate procedure enabling either a general review of the… decision… or a substitution of the… decision which the… court thinks should have been made." [quoting Craig v South Australia (1995) 184 CLR 163 at 175.] 15 It follows that the question of whether or not this Court or the FCC agrees with the Tribunal's decision is not a ground for finding that the Tribunal's decision is invalid, even if another decision-maker might have made different findings of fact or credit and reached a different decision.

3.2 The issues 16 The notice of appeal identifies two grounds of appeal, namely: 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT. (errors in the original) 17 The appellant also raised issues in her oral submissions which I consider separately.

3.3 Ground 1, notice of appeal: the alleged error with respect to s 91R of the Act and legal unreasonableness 18 Ground 1 of the notice of appeal raises two issues: (1) did the Tribunal ignore the aspect of persecution and harm in terms of s 91R of the Act; and (2) did the Tribunal act in a legally unreasonable way? 19 The appellant did not develop her submissions with respect to Ground 1. However, as the Minister submits, at the time of the appellant's visa application and the Tribunal's decision, s 91R of the Act had been repealed: see Item 12, Part 2, Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Legacy Caseload Act). The repeal of the section applied to all visa applications made on or after 16 December 2014: see Item 28, Part 4, Schedule 5 of the Legacy Caseload Act. The appellant's visa application was made on 30 June 2016. However, subs 5J(4)-(6) of the Act are in similar terms to s 91R, and applied to the appellant's visa application. Subsections 5J(4)-(6) deal with the circumstances in which a person will have a "well-founded fear of persecution" which meets the requirement of "serious harm" for the purpose of determining whether they satisfy the Refugee Criterion in s 36(2)(a) of the Act. 20 However, as the Commonwealth submitted, the Tribunal did not accept the appellant's evidence as credible and found that she had fabricated her claims. As the Commonwealth also submitted, the language in which the Tribunal's findings are expressed does not suggest that it entertained any real doubt about the falsity of the appellant's claims. If the Tribunal had entertained any real doubts, it would have been required to consider the risk of harm on the assumption that it was wrong to have found that the claim was fabricated (bearing in mind that there will be a "real chance" of persecution for a Refugee Convention reason if the risk is less than 50%): Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). However, given the certainty of its findings, the Tribunal did not consider the position on the alternative scenario that its credibility findings were wrong, and was under no obligation at law to do so. The question of whether the Court would have reached the same conclusion with the same degree of certainty is not relevant for the reasons I have earlier explained at [13]-[15] above, although the Tribunal's findings as to credit must still be legally reasonable. This question is raised by the second aspect of Ground 1 of the appeal. 21 The relevant principles by which it is determined whether a decision is legally unreasonable were explained by the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] and may be summarised as follows. (1) While findings as to credit are generally matters for the Tribunal, this does not mean that such findings are beyond scrutiny on judicial review. The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae. (2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis. (3) Findings or reasoning by the decision-maker along the way to reaching a conclusion that are illogical or irrational may establish jurisdictional error. (4) Irrational or illogical findings or reasoning leading to a finding that a witness is not credible may establish jurisdictional error particularly where the adverse credibility finding was critical to the Tribunal's decision. (5) A high degree of caution must be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review. Extreme illogicality must be demonstrated. 22 It follows, as I explained at the hearing, that it is not sufficient for the Court to disagree even strongly with the adverse credit findings by the Tribunal. 23 While the adverse credibility findings by the Tribunal were critical to its decision to affirm the decision not to grant the visa, it cannot be said that the Tribunal's reasoning is illogical, irrational, or lacks a probative basis. The Tribunal points to a number of inconsistencies in important aspects of the appellant's claims as made at various times, and between her accounts and those given by her husband at an earlier Tribunal hearing (differently constituted). The Tribunal also considered that the appellant's answers were evasive and vague when these inconsistencies were put to her. By way of example, the appellant initially stated at the hearing that she had been personally targeted by gangsters so many times that she could not remember, but then stated that it was more than five or six times. Further, the appellant could describe only one incident in any detail, being that recorded in her written statement, and ultimately stated that that incident was her only "face-to-face" encounter with the gangsters (Tribunal reasons at [14]). As a further example, the Tribunal found that the appellant did not explain why she said that she was harassed by gangsters over a particular period when her husband, who was then in Australia, said that nothing had happened to her (Tribunal reasons at [15]). There were also inconsistencies between the appellant's account of the number of hours for which her husband was kidnapped in 2008 and her husband's evidence on this point. When those inconsistencies were put to her, the appellant stated that she was not directly involved despite her evidence at the hearing that she was allegedly called by her husband at the time and that the vehicle in which he was kept hostage came to her place (Tribunal's reasons at [16]). 24 The existence of such inconsistencies in important aspects of the appellant's claims, and the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory, provide a logical and rational basis for the Tribunal's adverse credibility findings. In this regard, it is well established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451-452 (Beaumont J); Guo at 596 (Kirby J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see e.g. Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7] (Heerey J). 25 It follows that Ground 1 of the appeal has not been established.

3.4 Ground 2, notice of appeal: did the primary judge otherwise correctly dismiss the application for judicial review? 26 As the Minister submitted, Ground 2 of the notice of appeal is not developed by particulars or by the appellant's submissions, and should be read as essentially asserting that the FCC's decision that the appellant had not established a jurisdictional error is wrong. For the reasons set out below, I consider that the primary judge correctly dismissed the application for judicial review. 27 First, Ground 1 of the judicial review application before the FCC asserted that the Tribunal misconstrued the risk and fear of "significant harm" in s 36(2A) of the Act. Section 36(2A) sets out the circumstances in which a non-citizen will suffer significant harm for the purposes of determining whether Australia has complementary protection obligations for the purposes of s 36(2)(aa), in circumstances where the Minister decides that the person is not a refugee under s 36(2)(a). However, for the reasons I have already explained, the Tribunal comprehensively rejected the appellant's claims to fear any harm on the basis that those claims were fabricated and therefore did not reach the question of whether any fear of harm constituted a fear of "significant harm" within s36(2A). It follows that the primary judge correctly rejected Ground 1, albeit for different reasons. 28 Secondly, with respect to Ground 2 below, s 424A(1) requires the Tribunal to give an applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, explain the relevance of the information and the consequences of it being relied upon, and invite the applicant to comment upon the information. Alternatively, by operation of ss 424A(2A) and 424AA(1), the Tribunal may comply with the same requirements as those imposed s 424A(1) but by giving the required information and explanations orally at the hearing. However, neither Ground 2 itself, nor the appellant in submissions, identified any information said to attract the obligation imposed by s 424A of the Act. Moreover, while the Tribunal relied upon the separate Tribunal decision with respect to the appellant's husband, the Tribunal's reasons at [28] of Annexure A record that the appellant provided the decision concerning her husband to the Tribunal. As such, while that information formed part of the Tribunal's reason for affirming the decision under review, the obligation in s 424A(1) did not apply to that information by operation of s 424A(3)(b) of the Act which provides that: This section does not apply to information: … (b) that the applicant gave for the purpose of the application for review; … 29 Thirdly, as the primary judge held, by Ground 3 of the application for judicial review the appellant appeared to take issue only with the correctness of the factual findings made by the Tribunal. This is not a ground on which a court can interfere with a decision of the Tribunal: see at [13]-[15] above. 30 Fourthly, no error has been shown in the primary judge's finding that the appellant had not established a failure by the Tribunal to investigate her claim to fear persecution in Malaysia. A failure to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained, may in some circumstances give rise to a jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [19]-[25] (Heydon J). However, no circumstances were identified by the grounds of appeal or otherwise by the appellant which suggest that any such duty to inquire arose. Rather, having comprehensively disbelieved the appellant's claims and having (it must be inferred) no real doubt that those claims were fabricated, there was no obligation on the Tribunal to consider the appellant's claims any further. Moreover, as the allegation of actual bias is said to have arisen by reason of the Tribunal's alleged failure to investigate, it follows that this ground also cannot succeed. Nor were any other facts or circumstances identified by the appellant in support of the allegation of actual bias. 31 In the fifth place, it will be recalled that the Tribunal found that the s 438 certificate was invalid and did not disclose any information adverse to, or which could undermine, the appellant's claims (Tribunal reasons at [8]-[10]). The documents subject to the certificate were in evidence and were purely procedural in nature. They said nothing about the appellant's claims or whether she should be granted a visa. Having regard to the Tribunal's findings and to the innocuous contents of the documents the subject of the certificate, on no view could it be said that the documents prejudiced the appellant's interests or that they could possibly have undermined her prospects of a favourable decision by the Tribunal. No practical unfairness arose therefore from the failure to disclose: Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 at [68]-[70] (Kenny, Tracey and Griffiths JJ); see also Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198. As such, the primary judge correctly rejected the possibility of jurisdictional error by reason of the failure to disclose the s 438 certificate.

3.5 Additional issues raised in the appellant's oral submissions 32 At the hearing the appellant submitted that she was not very well educated, could not afford a lawyer, and did not know how to explain her case. However, she was determined to protect her family and this was the reason why she kept appealing. She also challenged the Tribunal's findings as to her credibility on the ground that she could not express herself clearly. However, these submissions fail to disclose an error which this Court or the FCC could correct, that is, a jurisdictional error. As I earlier explained at [13]-[15] above, it was not open to the FCC to consider whether the appellant or her children may be at risk of harm if returned to Malaysia or whether her claims to fear harm should have been believed. Nor is it open to this Court to find that the FCC erred on the basis that it failed to consider these matters.

3.6 The interpreter issue and grant of leave to re-open 33 Finally, I note that after judgment was reserved, a further issue came to my attention. The appellant had requested a Cantonese interpreter in her response to hearing invitation from the Tribunal. Consistently with this, the MRD Hearing Record states that a Cantonese NAATI Level 3 interpreter was present. However, at [29] of Annexure A to its reasons, the Tribunal stated that the hearing was held on 25 November 2016 "with the assistance of a NAATI Level 3 interpreter in the Mandarin language" (emphasis added). As the failure to provide an interpreter in a language which a visa applicant can understand can constitute a breach of procedural fairness or a failure to hold a hearing in accordance with the Act, I deferred giving judgment and relisted the matter instead for directions. 34 At the directions hearing, the Minister sought and was granted leave to reopen in order to rely upon the affidavit of Arielle Bianca Zinn, solicitor, affirmed on 27 February 2018. In her affidavit, Ms Zinn deposed to inquiries made by her confirming that the interpreter who attended the Tribunal hearing was in fact accredited in Cantonese for translating and interpreting. The appellant confirmed that Ms Zinn's affidavit had been sight-translated for her before the directions hearing, and that she did not dispute Ms Zinn's evidence or wish to call further evidence. The appellant also confirmed that she had been assisted by a Cantonese interpreter at the Tribunal hearing and that, while the interpreter was not Malaysian Cantonese, the appellant could understand her. In those circumstances, I am satisfied that a NAATI accredited Level 3 Cantonese interpreter assisted the appellant at the Tribunal hearing and therefore that there was no breach of procedural fairness or other breach on this ground. The reference to a Mandarin interpreter in the Tribunal's reasons was apparently an error.

4. CONCLUSION 35 For these reasons, the appeal must be dismissed. As the respondent has successfully defended the appeal on all grounds, it is appropriate to make an order that the appellant pay the respondent's legal costs of the appeal as agreed or assessed, subject to one caveat. The caveat is that, subject to affording the Minister an opportunity to be heard, it is my preliminary view that there should be no order as to the costs occasioned by and incidental to the Tribunal's error in referring to the interpreter as accredited in Mandarin. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.