BHY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2022-09-26|Before: McEvoy J

The appeal be allowed.
The orders of the Federal Circuit and Family Court of Australia (Division 2) made on 9 December 2021 be set aside and in lieu thereof: (a) a writ of certiorari be issued quashing the decision of the second respondent dated 28 February 2017; (b) a writ of mandamus directed to the second respondent be issued requiring it to review the decision of the delegate of the first respondent made on 18 May 2015 according to law and that the review be undertaken by the second respondent constituted by a different member; and (c) the first respondent pay the appellants' costs of the proceeding.
The first respondent pay the appellants' costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an appeal against orders made by the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) on 9 December 2021 dismissing an amended application for judicial review filed on 14 September 2021 in respect of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 28 February 2017: BHY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 341 (J). The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) to refuse the appellants' application for protection (Class XA) (Subclass 866) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The Tribunal was not satisfied that the appellants met the criteria for a protection visa in paragraphs 36(2)(a) or (aa) of the Act. 2 The appellants are a family of six comprising the mother (BHY17), the father (BHX17), and four children (BHZ17, BIA17, BIB17 and BIC17) who were aged between 12 and 20 years at the time of the protection visa application in 2013. The family is from Pakistan, and they arrived in Australia on 31 December 2012 as holders of visitor visas. They applied for protection visas on 29 January 2013. On 18 May 2015 the Minister's delegate refused their application for protection visas, and on 3 June 2015 the appellants applied to the Tribunal for a review of the delegate's decision. 3 The appellants' claims for protection focused primarily on extortion and threats of violence said to have been carried out by political and militant groupings in Pakistan, commencing with extortion against the father's business and extending to threats against the father and other members of the family as a result of attempts the father made to organise with fellow local business owners to resist the extortion. It is said by the appellants that as a result of those attempts at resistance they were imputed with a political opinion of opposing the political group primarily responsible for the extortion, the Muttahida Qaumi Movement (MQM). 4 Before the primary judge it was contended that the Tribunal had failed to give the appellants a meaningful opportunity to respond to an issue arising in the review, namely the proposition that certain reports said to have been made by the father to police in Pakistan concerning extortion and harassment to which he and his family had been subjected to were fraudulent. It was also contended that the Tribunal misunderstood or misconstrued the appellants' claims, or alternatively that the Tribunal's decision was based on irrational reasoning, namely the Tribunal's misunderstanding of evidence regarding the perceived political opposition of the father to the MQM. The substance of this second ground was that, properly understood, there was no inconsistency between the evidence of the father and the daughter and therefore no basis for a finding that the daughter had embellished her evidence about her father being approached by the MQM, which finding was material to the Tribunal's rejection of the appellants' claim to have been targeted by the MQM. 5 The primary judge found that the appellants had failed to establish jurisdictional error on the part of the Tribunal. His Honour determined that: (a) the appellants were not denied procedural fairness in that it was open to the Tribunal to make the finding that it was not satisfied that certain documents provided by the appellants in support of their position were genuine; and (b) the Tribunal did not misunderstand or misconstrue the appellants' claims, rather the Tribunal did not believe them and the Tribunal's decision in this regard could not be regarded as unreasonable or otherwise irrational. 6 The grounds of appeal relied upon by the appellants in this Court by notice of appeal dated 6 January 2022 were substantially the same grounds of appeal relied upon before the primary judge. 7 For reasons I will explain, I accept that the Tribunal failed to put the appellants on notice of its conclusion that the relevant reports said to have been made by the father to the police were fraudulent and that, as a result, the appellants were denied the opportunity to address and rebut that proposition. I accept also that the primary judge misapprehended the nature of this ground of review as one concerned with unreasonableness rather than procedural fairness. His Honour ought to have found that the Tribunal had breached its statutory obligation to provide procedural fairness to an applicant for review by failing to put the appellants on notice of its conclusion as to the veracity of the reports to police and give them a meaningful opportunity to respond. In this regard his Honour made an appealable error. 8 In light of this it is unnecessary to consider the appellants' second ground of appeal that the Tribunal's decision was irrational insofar as it misunderstood the evidence of the father's opposition to the MQM: Boensch v Pascoe (2019) 268 CLR 593 at 600-601 [7]-[8] (Kiefel CJ, Gageler and Keane JJ), 629-630 [101] (Bell, Nettle, Gordon and Edelman JJ). Because a differently constituted Tribunal will be ordered to hear the matter again, any misunderstanding of the evidence by the Tribunal as originally constituted is immaterial. 9 The appeal will thus be allowed, the primary judge's decision will be set aside, the decision of the Tribunal will be quashed, and the proceeding will be remitted to the Tribunal, differently constituted, for the review of the delegate's decision to be determined according to law.

the issue of the police letters in the tribunal 10 It was the father's position in the Tribunal that his business had been targeted for extortion, primarily by the MQM, but also by other groups when they had seen that the MQM had succeeded in extorting money from him. The father maintained that the extortion had initially occurred at his electrical consultancy business, and then later at a new business he started in early 2011. The father also maintained that he had attempted to organise an association of local traders to oppose the extortion by the MQM, which was described as a "welfare association". It was said that the extortionists had threatened to kidnap the two sons (BIA17 and BIB17), assaulted them, and threatened the mother and the children. 11 Critically, the father contended that in early 2012, on the advice of his lawyer, he made a complaint to the police about the extortion and the threats to his family. He said that three further complaints were made to police at various stages in 2012. The father says that it was as a consequence of inaction from the police following these complaints that he decided to form the welfare association with other shopkeepers. 12 The Tribunal had before it copies of four letters of complaint which the father said he had provided to the police. The first three he had handwritten; the fourth he had typed. The letters did not purport to be police reports, or other officially produced documents. 13 In rejecting the father's claims to have been subjected to extortion and threats by the MQM, the Tribunal said as follows: [70] The Tribunal does not accept that the first named applicant [the father] made any applications to the police or to authorities regarding the extortion and harassment that he and his family were allegedly being subjected to. The Tribunal has taken into consideration the letters written by the first named applicant dated 25 January 2012, 1 April 2012, 8 July 2012 and 26 September 2012 which were submitted by the applicants. While these letters do have the stamp of a police station on it, suggesting that they had been received by the police, the Tribunal places little weight on them in light of the independent information cited in the delegate's decision regarding document fraud being endemic in Pakistan, suggesting the ease in which such stamps could be procured. 14 The appellants submit, and the first respondent concedes, that this assertion of fraud was material to the Tribunal's decision and was not put to the appellants. The Tribunal's assessment of the truth of the claims being made might realistically have been different had the Tribunal accepted that the complaints had been made to police in the terms and on the dates shown on the letters.

the statutory regime for review in the tribunal 15 Part 7 of the Act provides for the review of Pt 7-reviewable decisions by the Tribunal. Division 4 is concerned with the conduct of Pt 7-reviewable decisions. Section 422B(1) of the Act provides that Div 4 is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. 16 Section 425 of the Act is in the following terms: (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 17 The purpose of s 425 is to provide procedural fairness to an applicant for review, including an opportunity to know the relevant issues and the adverse material and to be given a meaningful opportunity to respond: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at 162-163 [32]-[36], 165-166 [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). 18 As the appellants submitted, if an applicant for review is to have a meaningful opportunity to persuade the Tribunal, the review applicant needs to know the point on which the Tribunal needs to be persuaded: DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290 (DCP17) at [80]-[82] (Mortimer J). As Nettle and Gordon JJ explained in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 461 [99]: Here, the conduct of a review under Pt 7 is addressed in Div 4. The Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That obligation sets the boundaries of the playing field. The phrase "the issues arising in relation to the decision under review" is central to the operation of Pt 7. An applicant is entitled to know of, and therefore be in a position to respond to, the issues arising in relation to the decision under review. An applicant is entitled to know what is in play. Otherwise it is difficult to see how a Tribunal could be said to be pursuing an objective of providing a mechanism of review that is fair and just. (Original emphasis, footnotes omitted)

the tribunal's failure to give an opportunity to respond to alLegations of document fraud 19 As has been mentioned, the appellants' principal ground of appeal is that the Tribunal failed to give them a meaningful opportunity to respond to the proposition that the reports the father had made to the police in Pakistan were fraudulent. The issue is not that the Tribunal should have provided the appellants with particular information, rather it is submitted that the Tribunal was required to alert the appellants to the fact that it considered that the police letters may be fraudulent, and to give them a meaningful opportunity to persuade the Tribunal that they were not. It is said by the appellants that they would, had they been squarely informed of this concern, have at least been in a position to explain the manner in which the letters were provided to the police, stamped, and otherwise dealt with. The Tribunal's failure to put to the appellants the proposition that the letters to the police were fraudulent meant that they were not given an opportunity to persuade the Tribunal that its concerns were misplaced and that the letters were genuine and had been provided to the police as claimed. 20 The appellants submit that had they been able to persuade the Tribunal that the letters were indeed genuine, those letters were capable of corroborating their claims of persecution. The appellants contend that the failure of the Tribunal to put the proposition that the letters were fraudulent to them for comment constituted a denial of the procedural fairness mandated by s 425 of the Act and that as this breach of s 425 was material to the decision, the decision was affected by jurisdictional error. 21 The primary judge, at J [18]-[19], found that it was open to the Tribunal, having regard to the evidence before it, to find that the letters to the police were fraudulent and that such findings were not unreasonable. However as the appellants submit, his Honour's conclusion in this respect did not deal with the submission that the appellants were denied the procedural fairness to which they were entitled pursuant to s 425 of the Act. The appellants' complaint is that they were not told that the Tribunal had a concern that the letters the father said he had written to the police may have been fraudulently stamped. They were thus not given the opportunity to respond to this point. To consider this complaint through the prism of legal unreasonableness as the primary judge did at J [19], rather than as a procedural fairness issue, was to misunderstand the complaint and caused his Honour to fall into error. 22 It is no answer to say, as the Minister submits on this appeal, that because the issue of document fraud in Pakistan generally was a matter which had been raised by the delegate it was obvious that the genuineness of the police letters was in issue and that the appellants therefore needed to persuade the Tribunal that the police letters were genuine. The fact of the matter, as counsel for the appellant submitted at the hearing of the appeal, is that whilst the issue of document fraud was adverted to by the delegate, this was no more than in passing and the delegate at no stage suggested that the father's letters to the police should not be regarded as genuine because the police stamps on them showing that they had been received by the police station may have been fraudulently obtained. The delegate did no more than say that he was unable to verify whether the letters to the police were genuine. The delegate not having raised the issue of the veracity of the police stamps meant that if the Tribunal was going to form a view adverse to the appellants on this issue it needed to say so explicitly, and give the appellants an opportunity to address it: SZBEL at 162 [32]. Plainly, and as the Minister concedes, this did not occur. 23 Also relevant to the argument that the delegate did not raise as a dispositive issue the possibility that the police stamps may have been forged is that the delegate (unlike the Tribunal) actually accepted that the appellants had been the victim of criminal activity in the nature of extortion. As the appellants submit, this finding is completely different to the Tribunal's finding (at [70]-[71]) that the appellants' claims of extortion were, in effect, falsified. This divergence of findings between the delegate and the Tribunal is a further reason why the Tribunal was not relieved of its obligation to put the issue of the police stamps to the appellants: see DCP17 at [80]-[85]. The issue was a material one, in the sense that had the appellants been able to deal with the question of the veracity of the police stamps (whether by giving direct evidence, or with the assistance of an expert document examiner) the Tribunal may have been more likely to accept that they had been genuinely provided to the police and thus more likely to accept that the extortion events had occurred. 24 While it may be accepted at a level of generality that the Tribunal is not required to put an applicant on notice of its thought processes or the "existence of doubts, inconsistencies or the absence of evidence" (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1196 [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ)), the Tribunal's concerns about the letters to police were more than mere thought processes, doubts or inconsistencies. They reflected a critical conclusion of the Tribunal which was central to the outcome of the review and which s 425 of the Act, properly understood, required be communicated to the appellants. Contrary to the Minister's submissions, the situation as it presented here concerning the letters to the police is not at all analogous to the circumstances which were the subject of analysis in Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs v Viane (2021) 395 ALR 403 at 411 [32] (Keane, Gordon, Edelman, Steward and Gleeson JJ).

CONCLUSION 25 The Tribunal's failure to put the appellants on notice of its conclusion that the reports the father maintained he had made to police were fraudulent so as to enable a response to be made to this was a breach of the Tribunal's statutory obligation pursuant to s 425 of the Act to provide procedural fairness to the appellants. The primary judge erred in concluding otherwise. 26 The appeal should thus be allowed. The orders of the FCFCOA made on 9 December 2021 should be set aside and in lieu thereof: (a) a writ of certiorari be issued quashing the decision of the second respondent dated 28 February 2017; (b) a writ of mandamus directed to the second respondent be issued requiring it to review the decision of the delegate of the first respondent made on 18 May 2015 according to law and that the review be undertaken by the second respondent constituted by a different member; (c) the first respondent pay the appellant's costs of the proceeding. 27 The Tribunal's finding that the father falsified documents is sufficiently serious as to give rise to a reasonable apprehension of pre-judgment should the same member conduct the re-hearing, and it is for this reason that the re-hearing should be undertaken by a different Tribunal member. 28 The first respondent should pay the appellants' costs of the appeal. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.

SCHEDULE OF PARTIES VID 5 of 2022 Appellants Fourth Appellant: BIA17 Fifth Appellant: BIB17 Sixth Appellant: BIC17

Migration Act 1958(Cth)ss 36(2)(a), 36(2)(aa), 65, 422B(1), 425

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