Federal Court of Australia AOO15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 290 Appeal from: AOO15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 74 File number(s): NSD 1164 of 2021 Judgment of: RARES J Date of judgment: 18 March 2022 Catchwords: MIGRATION – where Refugee Review Tribunal affirmed delegate's decision to refuse protection visa – where Federal Circuit Court quashed Tribunal decision because of failure to deal with clearly articulated claim – where applicant failed to attend two hearings and Administrative Appeals Tribunal affirmed delegate's decision without identifying or dealing with claim the basis for remittal – extension of time granted, appeal heard instanter and allowed Legislation: Migration Act 1958 (Cth) ss 36, 65, 425, 430) Cases cited: AOO15 v Minister for Immigration [2016] FCCA 2871 AOO15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 74 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 33 Date of hearing: 18 March 2022 Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Australian Presence Legal Solicitor for the First Respondent: Mr A Cunynghame of Sparke Helmore Lawyers ORDERS NSD 1164 of 2021 BETWEEN: AOO15 Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: RARES J DATE OF ORDER: 18 MARCH 2022 THE COURT ORDERS THAT: 1. The applicant be granted an extension of time in which to file a notice of appeal to today and the appeal be heard instanter. 2. The draft notice of appeal annexed to the affidavit of Shamili Kugathas affirmed 9 November 2021 be treated as the notice of appeal. 3. The orders made by the Federal Circuit and Family Court of Australia (Division 2) on 24 September 2021 be set aside, and in lieu thereof, it be ordered that: (a) the decision of the second respondent made on 10 April 2017 be quashed; (b) a writ of mandamus be issued directed to the second respondent requiring it to determine the applicant's application for review of the decision of the delegate of the first respondent dated 27 February 2014, according to law; and (c) the first respondent pay the applicant's costs. 4. The first respondent pay the appellant's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from the transcript) RARES J: 1 This is an application for an extension of time to file a notice of appeal. Explanation for delay 2 The applicant filed the application for an extension 18 days after the time for appeal expired. The Minister does not suggest any specific prejudice. The applicant's explanation is that he was locked out of his access to his previous email address that he had given to his counsel, who appeared before the Federal Circuit and Family Court of Australia (Division 2) at the hearing and, therefore, did not receive any correspondence to that email address from his counsel after the trial judge delivered his reserved judgment on 24 September 2021: AOO15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 74. 3 The Minister did not suggest that the explanation was not genuine and that the applicant had not moved promptly after learning of the fate of his application for constitutional writ relief from the decision of the Administrative Appeals Tribunal (AAT) given on 10 April 2017 to affirm the Minister's delegate's decision not to grant him a protection visa. Background 4 On 26 May 2016, the Circuit Court remitted by a writ of mandamus the review of the delegate's decision to the Refugee Review Tribunal (RRT) to be heard and determined according to law: AOO15 v Minister for Immigration [2016] FCCA 2871. There, Judge Smith set out country information that had been before the RRT. The country information stated that Tamil fishermen in the north of Sri Lanka, in Mullaitivu District, the area in which the applicant lived, had faced severe and discriminatory restrictions imposed by the Sri Lankan Navy resulting in a serious threat to their capacity to earn a livelihood and to subsist. His Honour described the RRT's jurisdictional error as follows (the livelihood claim) (at [23]): What the Tribunal did not deal with was the future prospect of the applicant returning to his home in the Mullaitivu region. It did not deal with that in light of the clear and uncontested evidence from independent sources, that there was a process of Sinhalisation in that area affecting fishermen which was driven by, if not simply condoned, by the government. It may well be that as the Tribunal found, the applicant had, after being released in 2010, been able to obtain a licence and to establish a fishing business after some initial difficulty. However, that does not grapple with the fact that the claim was not a concrete claim based on past events. There was, according to the evidence, which was as late as December 2012, a process being undertaken which clearly had the possibility of affecting the applicant who was both Tamil and a fisherman and lived in the north of Sri Lanka. (emphasis added) The AAT's decision 5 The only positive finding of fact in relation to the applicant that the AAT made in its decision the subject of this application was in par 1 where it said: "The applicant, a male national of Sri Lanka, entered Australia as an Irregular Maritime Arrival … on 29 June 2012". The AAT referred to the Circuit Court's decision to remit the proceeding to it and had Judge Smith's reasons before it when considering the review but made no further mention of those matters. In particular, the AAT failed to set out, expressly or otherwise, that Judge Smith identified the basis of the RRT's jurisdictional error, the undetermined livelihood claim. 6 The highest that the Minister could point to in suggesting that the AAT had considered the livelihood claim was its summary of what it said were the applicant's claims, in pars 13(b), (o), (p), (r), (s) and (u) and 16. There, the AAT summarised that the applicant claimed that: he was a Tamil and a fisherman who faced many problems in Mullaitivu, including having to pay bribes in the past to the LTTE; while he continued fishing there, Sinhalese fisherman began to enter the Mullaitivu District, causing several problems for Tamil fishermen like him; when he sought to discuss the matter with the Sri Lankan authorities in a meeting with other Tamil fishermen, they were told that the Sri Lankan government had decided to issue fishing permits to 250 Sinhalese fisherman to which he objected; his objection resulted in him being asked by the CID for his phone number; he was told to go to a camp, at which an officer put a gun to his head and threatened to kill him, saying "if you do no [sic] keep quiet, your name would be on the missing persons list"; the situation for Tamils in Mullaitivu District, particularly fishermen, was getting worse; he could not voice his opinions as president of the local fisherman's organisation, which led him to decide to flee Sri Lanka when the opportunity arose in June 2012; and if he stayed in Sri Lanka, he would have been at risk of being seriously harmed or possibly killed, and that he was unable to relocate to any other area because he was a Tamil. 7 The AAT, at par 16, noted that the applicant had made written submissions to the Minister's Department saying: The same submissions also set out country information including in respect of an increased Sinhala presence in fishing waters, including around Mullaithivu. They also refer generally to a real chance of Tamils being targeted by paramilitary groups; a real chance of Tamils being tortured by the Sri Lankan authorities, specifically the CID and SLA; and a real chance of Tamils being targeted for being returnees and failed asylum seekers and part of the Tamil diaspora. The submissions also address difficulties of relocating in Sri Lanka. 8 The AAT said that it had reviewed the written record of the applicant's entry interview, listened to audio recordings of his Departmental interview and the 2015 hearing before the RRT. It then set out a number of aspects of his evidence in the 2015 hearing, that it said appeared to be "problematic". The AAT stated (at par 23) that the audio recording of the applicant's evidence at the 2015 hearing included that his sister and her husband had remained in Mullaitivu, had their own fishing boats, continued to fish, he had last spoken to his sister four days before that hearing, her husband was then still working as a fisherman and continuing to earn his living for his family in that way, and the same was true of his brother who remained in Sri Lanka. 9 The AAT then said (at pars 24, 26 and 27): 24. While the Tribunal is mindful of post-2015 Hearing submissions provided by the applicant's former RMA which attempt to address the above anomalies, the Tribunal would have, had the applicant appeared before it, discussed with him, amongst multiple other things relevant to the applicant's claims and evidence in the context of Sri Lanka now and in the reasonably foreseeable future, its concerns arising from the examples set out in paragraphs 20 to 22 above. … 26. For the purposes of section 36(2)(a) the Tribunal must determine whether the applicant before it has a genuine fear founded upon a real chance of persecution for a specified reason if he returns to his country. For the purpose of s 36(2)(aa) ("the complementary protection criterion") the Tribunal must determine whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Sri Lanka, there is a real risk that he will suffer significant harm. On the evidence provided, the Tribunal cannot be satisfied about significant aspects of the applicant's past and present circumstances, such as: his current personal and family circumstances in Sri Lanka; any relevant matters which have transpired regarding his claims since his 2015 Hearing; the nature of any harm he continues to fear in the reasonably foreseeable future and the motivations for the harm he may fear in the context of the current situation in Sri Lanka. 27. It follows that, on the information before it, the Tribunal cannot be and is not satisfied that the applicant faces a real chance of persecution involving serious harm in Malaysia [sic] for a specified reason now or in the reasonably foreseeable future. Accordingly, the Tribunal cannot be and is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution in Sri Lanka. (emphasis added) 10 At no point in the AAT's reasons did it set out or make any findings about the applicant beyond what it said in par 1. In particular, the AAT's reasons were silent about country information to which Judge Smith specifically referred as to the situation for Tamil fishermen in Mullaitivu or elsewhere in Sri Lanka. 11 Next, the AAT went into considerable detail about the applicant's failure, on two occasions, to appear at two hearings which it had invited him to attend for the purposes of discharging its obligations under s 425 of the Migration Act 1958 (Cth), the last being on 16 February 2017. He had requested adjournments on the basis of his claims of significant mental health problems, that the AAT had refused. On 10 February 2017, he informed the AAT that he was due to see a psychiatrist on 23 February 2017 to assess whether he had been then moving to a depressive delusional state and exhibiting somatic symptoms. 12 When the applicant failed to attend at the AAT for its hearing on 16 February 2017, it exercised its discretion not immediately to determine the review, but instead informed the applicant in a letter of that date that it would not be making a decision on his review prior to 3 March 2017. That letter told him that if he wished to provide any further material in support of his case before the AAT finalised the review, the AAT would carefully consider that material. The applicant did not submit any further material, including any report from the psychiatrist he attended on 23 February 2017, before the AAT made its decision on 11 April 2017. The trial judge's decision 13 The trial judge summarised the background and dealt with the grounds in the amended application below that were as follows, and are mirrored in the grounds sought to be the subject of the draft notice of appeal (at [62]): Ground 1 1. The Administrative Appeals Tribunal ("the Tribunal") reasoned in paragraphs 26 to 28 of its decision that, because the applicant did not attend a hearing before the Tribunal, the Tribunal "cannot be satisfied" that the applicant meets the criteria for a protection visa. The fact that an applicant for a protection visa does not attend a hearing before the Tribunal does not mean that the Tribunal "cannot be satisfied" that the applicant meets the criterion for the visa. This process of reasoning by the Tribunal was erroneous, and constituted jurisdictional error. Ground 2 2. The Tribunal, by adopting the reasoning process in paragraphs 26 to 28: a. did not carry out its statutory function of review required by s 414 of the Migration Act 1958 (Cth) b. did not engage in an active intellectual process, or give proper, genuine and realistic consideration, in relation to the applicant's claims; and/or c. did not deal with the matter which the Federal Circuit Court, in the course of quashing an earlier decision of the Tribunal (differently constituted) ("the First Tribunal"), stated that the First Tribunal had failed to deal with. In the circumstances, the Tribunal's reasoning process at [26]-[28] involved jurisdictional error. 14 His Honour rejected ground 1 on the basis that the applicant's argument focussed on the AAT's use of the words "cannot be satisfied". The applicant had argued that those words should be read as an expression of the AAT's reasons that, because he did not attend, he could not meet the criteria for the grant of a protection visa. His Honour said that the AAT's reasons should not be read in that way. He found that the reasons reflected a genuine intellectual engagement with the applicant's claims and evidence, because it identified the problematic aspects of that evidence, giving numerous examples. His Honour held that on a fair reading, the AAT had identified that it was not satisfied, on the evidence the applicant had provided, that he met the criteria for a protection visa under s 36(2)(a) or (aa) of the Act. 15 His Honour rejected ground 2. He found that the applicant had not identified any claim that the AAT had failed to take into account, including the claim that was the subject of Judge Smith's finding of jurisdictional error. The trial judge said (at [70]): It is apparent from the Tribunal's reasons, and in particular the detailed reference to the applicant's claims, that the Tribunal understood the applicant's claim to fear harm in relation to his livelihood as a fisherman. The Tribunal's identification of the inability to explore the anomalies in relation to the applicant's claims in the context of Sri Lanka, now and in the reasonably foreseeable future, should not be read as excluding the applicant's claim in relation to livelihood. 16 His Honour said that, on a fair reading, the AAT's reasons provided a logical and rational basis for its adverse findings, and did not reflect any failure by it to have a genuine intellectual engagement with the applicant's claims. His Honour found that the applicant's argument amounted to a disagreement with the merits. The Minister's submissions 17 The Minister argued that by referring to and summarising the applicant's claims and the general reference to country information in his written submission in par 16, the AAT had shown that it had understood all of his claims, including the livelihood claim. The Minister contended that while the AAT set out its difficulties in being able to be satisfied with the problematic aspects of the applicant's claims, his entry interview, his interview with the delegate, and evidence at the 2015 hearing, it had explained why it was unable to make any findings in his favour. The Minister relied on the AAT's summary, in par 23, of the applicant's evidence at the 2015 hearing that his sister and her husband were still working as fishermen in the Mullaitivu area earning their living, and that his brother, who remained in Sri Lanka, was also doing so. 18 The Minister submitted that, in par 24, the AAT had identified what it would have liked to explore with the applicant had he given evidence to it. The Minister argued that, in par 26, the AAT's statement that it "cannot be satisfied about significant aspects of the applicant's past" related back to the problematic evidence it had summarised in pars 20 to 22 of its reasons, and had set out the reasons why it "cannot be satisfied" about his circumstances thereafter. 19 The Minister accepted that if I were minded to grant leave to appeal, there was no reason why I could not forthwith proceed to determine the appeal on the basis of the arguments that have been advanced before me. Consideration 20 In my opinion, on its face, the AAT's statement of decision and reasons did not deal with the clearly articulated livelihood claim that Judge Smith had identified, as alleged in ground 2(c) of the grounds below and in the draft notice of appeal, namely that there was a process of Sinhalisation in Mullaitivu affecting fishermen, that was driven by, if not simply condoned by, the government, that affected his capacity to earn a livelihood or subsist. 21 It was common ground that the AAT's reference to "Malaysia" in par 27 was a slip for Sri Lanka and had no relevant bearing on the outcome of the application. The real problem with the AAT's reasons is they contain no findings of any material facts about the applicant, such as whether the AAT found him to be a Tamil, or if he were a fisherman, if and how he had earned his living, what his situation was, so that it might be able to assess whether there was any real chance that he would face persecution then, or in the reasonably foreseeable future, should he be returned to Sri Lanka. 22 Relevantly, s 430(1)(c) and (d) of the Migration Act required the AAT to set out its findings on any material questions of fact and refer to the evidence or other material on which the findings of fact were based. The only substantial finding that the AAT made was that it could not be satisfied "about significant aspects of the applicant's past and present circumstances". 23 That was an ultimate finding that could have been open to the AAT had it correctly identified and then considered the applicant's claims on the material before it. In Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 274–276, Brennan CJ, Toohey, McHugh and Gummow JJ discussed the ability of a court to review the performance of the function of the Minister (or here the AAT in his shoes) in arriving at a state of satisfaction for the purposes of provisions such as ss 36(2)(a), (aa) and 65(1)(a)(ii). As their Honours said (185 CLR at 275): From the classic dictum of Sir Owen Dixon in Avon Downs Pty Ltd v Federal Commissioner of Taxation ((1949)78 CLR 353 at 360) was derived a list of matters upon which "satisfaction" could be reviewed. In considering a power of the Federal Commissioner of Taxation to make certain decisions based upon satisfaction as to the state of corporate voting power, his Honour said: "His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review." This statement of principle has been applied in numerous cases (Federal Commissioner of Taxation v Bayly (1952) 86 CLR 506 at 510; Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57; Commissioner of Taxation v Jackson (1990) 27 FCR 1 at 13; cf Federal Commissioner of Taxation v Peabody (1994) 181 CLR 359 at 382). (emphasis added) 24 It is impossible to tell from the AAT's reasons how it was able to determine that if the applicant were returned to Sri Lanka, he would not face any real chance of persecution or significant harm. In particular, because the AAT did not articulate the livelihood claim that had been the specific basis of the remittal to it, it is unsurprising that there is no reference in its reasons to that claim or to the country information on which it was based. While the AAT may have had difficulties with the applicant's accounts of his evidence, there was country information before it that it did not consider or set out. 25 As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69]: The tribunal's identification of what it considered to be the material questions of fact may demonstrate it took into account some irrelevant consideration or did not take into account some relevant consideration. (italic emphasis as in original) 26 Their Honours also said that in reviewing the AAT's reasons given pursuant to s 430, a court is entitled to infer that any matter not mentioned in that statement was not considered by the tribunal to be material. 27 In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, at 575, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said, in a passage quoted with approval with by McHugh, Gummow and Hayne JJ in Yusuf 206 CLR at 348 [75]: In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. (emphasis added) 28 And, as Lee, Moore and Madgwick JJ pointed out in N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at 37 [54]: Even if, in the view of the tribunal, the letters did not "compel" a finding by the tribunal that facts had occurred as asserted in them, as explained earlier in these reasons the tribunal had to consider the possibility that past events had occurred as claimed and to assess the risk that the appellant may suffer persecution having regard to such a possibility. (emphasis added) 29 In my opinion, the AAT's reasons failed to engage with the livelihood claim at all and therefore, were affected by a material jurisdictional error, for the reasons given by Judge Smith. Moreover, because the AAT did not make any findings on material questions of fact as to the applicant's position, beyond him being a male with Sri Lankan citizenship, it did not ask itself the relevant questions about his clearly articulated livelihood claim, as the authorities require, namely, what had happened to him in the past, and what might happen to him in the future. 30 True it is that he failed to attend at the two hearings in 2017 or put any further submissions or information to that AAT and that he was on notice, pursuant to s 425(1), that it was not minded to grant a protection visa. However, the AAT's reasoning process, as revealed in its statement of decision and reasons, failed to identify or make positive findings and then use whatever findings it made to evaluate whether there was any real risk or chance of the applicant facing persecution involving serious harm or there were substantial grounds for believing there was a real risk that he would suffer significant harm, for the purpose of s 36(2)(a) and (aa), were he to return to Sri Lanka then or in the reasonably foreseeable future. The AAT did not consider any country information about persons with whatever characteristics the applicant had because it made no findings about those characteristics. 31 The trial judge's reasons glossed over the AAT's failure by saying that it "understood" the applicant's claim to fear harm in relation to his livelihood as a fisherman without his Honour specifying the basis for deriving that "understanding". For the reasons I have given, there is no articulation in the AAT's reasons that it even understood that that subject matter, namely the livelihood claim, had been the very reason for remittal to it. At no point did it articulate that claim and its statement in par 16 of its reasons did not summarise the country information to which Judge Smith referred. 32 Accordingly, the AAT failed to deal with the clearly articulated livelihood claim the basis of Judge Smith's order for mandamus and, thereby, failed to perform a review of the decision of the delegate according to law. It is not necessary to deal with the other grounds of the proposed appeal. Conclusion 33 For these reasons, I am of opinion that the application for an extension of time should be granted, the appeal be treated as having been heard instanter and that the appeal should be allowed with costs. A writ of mandamus should issue and the Minister must pay the applicant's costs below. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate: Dated: 28 March 2022