EDI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: WHEELAHAN J
• Judgment Date: 20 February 2020
• Neutral Citation: [2020] FCA 171
• Date: 20 February 2020

FEDERAL COURT OF AUSTRALIA

EDI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 171

Appeal from:	EDI16 & Anor v Minister for Immigration & Anor [2019] FCCA 2416
File number:	VID 1029 of 2019
Judge:	WHEELAHAN J
Date of judgment:	20 February 2020
Catchwords:	MIGRATION – appeal from Federal Circuit Court – whether primary judge considered submissions of the parties – submissions overlooked – appeal allowed ; PRACTICE AND PROCEDURE – whether to remit to the Federal Circuit Court or consider submissions for the first time on appeal – matter remitted
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37M Migration Act 1958 (Cth) s 476A
Cases cited:	AAM15 v Minister for Immigration and Border Protection (2015) FCR 452 Jones v National Coal Board [1957] 2 QB 55 Stead v State Government Insurance Commission (1986) 161 CLR 141 SZULE v Minister for Immigration and Border Protection [2019] FCA 2136 SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582 Twist v Randwick Municipal Council (1976) 136 CLR 105
Date of hearing:	18 February 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	34
Counsel for the Appellants:	The appellants appeared in person
Counsel for the First Respondent:	Mr N Wood
Solicitor for the First Respondent:	Mills Oakley

ORDERS

		VID 1029 of 2019
BETWEEN:	EDI16 First Appellant ; EDJ16 Second Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	WHEELAHAN J
DATE OF ORDER:	20 February 2020

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Federal Circuit Court made on 3 September 2019 be set aside.

3. The matter be remitted to the Federal Circuit Court to be re-heard by a different judge.

4. The costs of the first hearing of the application before the Federal Circuit Court be reserved to the judge who re-hears the application.

5. The first respondent pay the costs (if any) of the appellants of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The appellants, who are husband and wife, claim to be Malaysian citizens of Chinese ethnicity. In December 2014, they made applications for protection visas, which were refused by a delegate of the Minister in July 2015. The appellants then sought review of the delegate’s decision by the Administrative Appeals Tribunal, which in November 2016 affirmed the decision.

2. The Tribunal conducted a hearing at which the appellants gave evidence and presented arguments. The Tribunal also received some documents from the appellants after the hearing. Those documents were not translated into English, and the Tribunal gave them little weight. The male appellant claimed that he had operated a restaurant in Malaysia, and that he feared harm from local Malays. He claimed that he cooked pork at the restaurant, and that local Malays had asked him to close his restaurant, and had threatened him. He claimed that if he returned to Malaysia, he might be killed by Muslim gangsters. He also claimed that he feared harm in Malaysia because of his Chinese ethnicity, claiming that Chinese people in Malaysia were targeted. The female appellant did not make separate submissions to the Tribunal, and instead relied on the submissions made by the male appellant.

3. The Tribunal rejected the appellants’ claims, holding that the evidence regarding the claims lacked credibility. The Tribunal found that the claim that a Malay gang had ordered that the restaurant be closed had been fabricated, and in relation to a more general claim of discrimination, referred to country information that indicated that ethnic Chinese in Malaysia “did not generally experience discrimination or violence on a day-to-day basis”. For like reasons, the Tribunal also rejected claims for complementary protection.

The Federal Circuit Court

4. The appellants sought judicial review of the Tribunal’s decision in the Federal Circuit Court. At the commencement of the proceeding, and at the hearing of the application, the appellants were unrepresented. They did not file written submissions before the hearing, despite being ordered to do so. The grounds of their application were as follows –

1. The [Tribunal] denied the applicant natural justice or procedural fairness in making the decision.

2. The [Tribunal] has ignored relevant consideration in making the decision.

3. The [Tribunal] failed to consider and determine whether the applicant faces a real chance of persecution in Malaysia on the basis of ethnicity. It could give rise to a well-founded fear of persecution for a convention reason.

5. The hearing before the Federal Circuit Court took place on 3 September 2018, and the primary judge’s written reasons were published and final orders made one year later, on 3 September 2019. There is no transcript of the hearing available to this Court.

6. On the day of the hearing, the primary judge made orders for further submissions, ordering that the Minister file and serve submissions within 14 days, and that the appellants file and serve “anything in response” within 14 days thereafter. On 17 September 2018, the Minister filed five pages of written submissions that addressed three questions –

1. Whether the DFAT country information on Chinese Malaysians should have been put to the applicant for comment because it was information arising under section 424A(1) of the Migration Act 1958 (Cth) (the Act).

2. Whether the decision of the Full Court in Minister for Immigration and Border Protection v Ly [2018] FCAFC 123 had any bearing on the matter.

3. Whether the Tribunal considered the applicant’s claim that he would suffer harm as an ethnic Chinese Malaysian.

7. On 1 October 2018, the appellants filed written submissions in response. The appellants’ submissions were also of five pages in length, and were filed by a solicitor on the appellants’ behalf. In addition, the solicitor filed a notice of address for service dated 1 October 2018.

8. The appellants’ written submissions were professionally prepared, and cited a number of authorities. The main points advanced in the submissions were that –

1. The Tribunal had been required to give the appellants particulars of the country information on which it relied for comment. The appellants submitted that s 424A(3) did not apply because the country information was not “just about a class of persons”.

2. The decision of the Full Court in Minister for Immigration and Border Protection v Ly [2018] FCAFC 123 supported the appellants’ submission that the Tribunal was required to raise the country information with the appellants, and it had failed to do so.

3. The Tribunal had failed to consider a separate and independent claim that had been made on the basis of the appellants’ Chinese ethnicity because it conflated that claim with the claims concerning the operation of the restaurant, which the Tribunal had rejected. As part of this submission, it was also contended that the Tribunal had considered only whether the appellants feared being killed, and had not considered other serious harm falling short of loss of life.

9. The primary judge’s reasons for judgment of 3 September 2019...