BZAAF v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The Appellant is a citizen of Malaysia. He came to Australia on 24 July 2004. On January 2010 he applied to the Minister for Immigration and Citizenship (the Minister) for that class of visa under the Migration Act 1958 (Cth) (Migration Act) which is known as a Protection Visa. A delegate of the Minister decided on 17 March 2010 to refuse that visa application. As was his right under the Migration Act, the Appellant sought the review of the Minister's delegate's decision by the Refugee Review Tribunal (the Tribunal). By a decision dated 7 June 2010, sent to the Appellant under the cover of a letter from the Tribunal dated 8 June 2010, the Tribunal decided to affirm the decision not to grant the Appellant a protection visa. The Appellant then sought judicial review of the Tribunal's decision in the Federal Magistrates Court. On 25 November 2010, for reasons which were delivered that day, the Federal Magistrates Court dismissed with costs that judicial review application. 2 There were three grounds set out in the judicial review application. They were: 1. The Tribunal has ignored relevant considerations in making of the decision; 2. The Tribunal has not adequately taken into consideration the applicant claim in his application for refugee visa; and 3. There has been a constructive failure by the Tribunal to exercise jurisdiction. 3 Of those three grounds of review, the first and second grounds have been repeated in the notice of appeal to this Court, albeit in a way which, as to the allegation of not adequately taking into consideration the applicant's claims, fails to recognise the respective roles of the Federal Magistrates Court and the Tribunal. The grounds of appeal to this Court are these: 1. the Federal Magistrates Court failed to consider that the Tribunal had ignored relevant considerations in the making of the decision. 2. the Federal Magistrates Court has not adequately taken into consideration the applicant's claims in his application for a protection visa. 3. the Federal Magistrates Court failed to consider the Tribunal applied the wrong test. 4 The last of these grounds of appeal was not pressed on the hearing of the appeal by the Appellant. In any event, it is evident from the reasons of the Tribunal that the Tribunal had regard to the criteria set out in the Migration Act for the grant of a Protection Visa. There was therefore no error, in any event, on the part of the Federal Magistrates Court in failing to appreciate that the Tribunal had not applied the correct statutory criteria. 5 Both before the Federal Magistrates Court and this Court, the ground which alleged an ignoring by the Tribunal of relevant considerations was stated in general terms. It remained in that form, notwithstanding a requirement made explicit by the Federal Magistrates Court to particularise that ground. A consideration will be a "relevant consideration" if the statute concerned, either expressly or by necessary implication, requires that consideration to be taken into account: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40. Here, as I have observed, the Tribunal looked to the criteria set out in the Migration Act for the grant of a Protection Visa. It also looked to the claim for that visa as made by the Appellant. These were the relevant considerations for the Tribunal. 6 The claim as made by the Appellant for a Protection Visa is summarised by the Federal Magistrates Court at para 7 of that court's reasons for judgment. One sees there the following summary: The Appellant "said that from 1992 to 1998 he worked as a builder for a construction company. He said that after 1998 he worked as a builder for various employers. He claimed that during his employment in Malaysia, he did not receive a just and fair minimum salary. He said that was because the owners of the various building companies for whom he worked were local Malays. He complained that he argued frequently with his employers about not receiving the same opportunities as local Malays, and that each time he did so, he would be dismissed or terminated from employment. He stated that he could not work for one company for more than three months because he wanted the same wages as local Malay workers. He also complained that some local Malay workers had threatened to kill him". 7 That summary by the Federal Magistrates Court fairly represents, in my opinion, the nature of the claim as made for a Protection Visa. It is evident from the Tribunal's reasons that the claim as so made was considered by the Tribunal. The Federal Magistrates Court at paragraph 8 of the reasons for judgment further observed: The applicant did not provide any further information or documentation to support these claims. Beyond his initial statement, he did not expand upon the claims included in his application lodged for review with the Tribunal. Nor did he appear before the Tribunal at the hearing and expand upon these matters. That is a fair summary of the situation which prevailed in the Tribunal. 8 Section 425(1) of the Migration Act provides that 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. 9 One circumstance in which the Tribunal need not observe that obligation is that set out in s 425(2)(a), which is if the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it. Here the Tribunal was not of that view. Accordingly, in compliance with s 425(1), it extended an invitation to the Appellant to appear before it to give evidence and present arguments. The Appellant did not take advantage of this invitation. 10 In his reasons for judgment, the learned federal magistrate, at para 13, correctly in these circumstances, drew attention to an observation made by a Full Court of this Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]: In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application. 11 The Tribunal was not obliged to accept at face value the claim made by the Appellant in his protection visa application. The Tribunal's view about the vagueness and generality of the claim as made in the application was a view open to the Tribunal to form. It would be an error of law for the Tribunal to have approached its task on the basis that it could never set aside a decision solely on the basis of a claim as made in a visa application. But this is not, on the face of the Tribunal's reasons, what it did. Instead, the Tribunal looked, self-evidently, at the very claim that was made and just was not persuaded on the face of that claim that it should decide the case in the Appellant's favour. Having so done, the Tribunal correctly understood that it was obliged to invite the Appellant to appear before it. 12 In his submissions before me, the Appellant emphasised that he was an honest man. The time and place for emphasising that honesty was in response to the invitation which the Tribunal made to the Appellant. That was the last opportunity, in the absence of any legal error, for the Appellant to persuade a person with power to grant a visa that his claim was honest. There was, against this background, no error on the part of the Federal Magistrates Court in deciding that the Tribunal had reached a decision open to it under the Migration Act. 13 Ground 2 of the grounds of appeal does not admit of easy or ready understanding. Insofar as it is directed to the Federal Magistrates Court, it is plain on the face of that court's reasons for judgment that the court understood the nature of the visa claim which had been made. Insofar as one might, perhaps charitably, read ground 2 as intended to refer to the Tribunal, the Tribunal did take into account the nature of the claim for a visa. 14 Insofar as, behind the word "adequately" in ground 2, there may be an attempt to raise illogicality or irrationality on the Tribunal's part, the present is not a case which requires consideration of whether those amount to a separate jurisdictional error ground. Reference was made in the Minister's submissions to the Full Court's judgment in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [20] (SZNPG). The extent to which irrationality or illogicality in relation to a decision, the basis of which is a state of administrative satisfaction, may amount to jurisdictional error was explored in the judgments delivered in the High Court in Minister for Immigration v SZMDS (2010) 240 CLR 611 (SZMDS). That subject is also given reflective consideration by the learned authors of Aronson et al, "Judicial Review of Administrative Action" (4th ed, Thomson Reuters, 2009) paras 4.405 to 4.420. It is not necessary for the purpose of determining this appeal to explore the extent to which all that was said in the Full Court in SZNPG can be reconciled either with the judgments delivered in the High Court in SZMDS or the cases canvassed in the passages from Aronson to which I have drawn attention. That is because there is nothing illogical or irrational, let alone seriously illogical or irrational, in the reasoning process adopted by the Tribunal. 15 The Tribunal was faced with an application which put a claim for a Protection Visa at a level of generality. It was not obliged to accept this claim as made, questions of credibility being par excellence matters for the Tribunal. When the Appellant did not take advantage of the opportunity to expand upon his claim and to persuade the Tribunal of his honesty, the refusal of his review application was a course reasonably open to the Tribunal. This was well appreciated by the learned federal magistrate, see para 14 of his Honour's reasons for judgment. 16 In these circumstances there is no merit in the grounds of appeal and the appeal must be dismissed. I will hear submissions in respect of costs. 17 As to costs, an application was made for the fixing of those costs in the event that I was disposed to award costs. The case is one where there is no basis for any order other than the usual order as to costs, which is that costs should follow the event. I do not have, as I apprehend a practice note would ordinarily require, an affidavit from a solicitor acting for the Minister deposing to what is assessed to be the Minister's costs in respect of the appeal. It is true that there is a general provision for short form bills in appeals such as this. Nonetheless, in the absence of a sworn basis for assessing costs in a fixed sum, the preferable course, out of fairness to the Appellant, in my opinion, is for that task to be consigned to a taxing officer. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.