ABL15 v Minister for Immigration
[2015] FCCA 723
•26 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABL15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 723 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Migration Act 1958, ss.424A, 424AA, 425(1), 476 |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 |
| Applicant: | ABL15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 475 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 26 March 2015 |
| Date of Last Submission: | 26 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2015 |
REPRESENTATION
| Solicitors for the Respondent: | Mr A. Joel Adrien Joel Solicitors |
| Solicitors for the Respondent: | Ms Griffin Australian Government Solicitor |
ORDERS
The proccedings be summarily dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $1100.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 475 of 2015
| ABL15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
As Corrected
This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 19 January 2015 affirming the decision of the delegate not to grant the applicant a protection (class XA) visa.
The grounds of the application are as follows:
Ground 1: Natural Justice-The Fair Hearing Rule
1. The Second Respondent breached the rules of natural justice and procedural fairness in connection with the making of the decision by violating the fair hearing rule.
Particulars
(a) No Prior Warning of Adverse Credibility Findings in violation of the Migration Act 1958 (Cth) s 425(1)
2. The second respondent failed to accord the applicant natural justice and procedural fairness as the second respondent based its decision upon a series of adverse credibility findings, which rejected out of hand, almost all of the applicant's claims on the basis of credibility, without giving the applicant sufficient or adequate opportunity to give evidence and present arguments relating to the issues relating to the decision under review, in violation of the Migration Act 1958 (Cth) s 425(1).
(b) No Opportunity to produce information and no invitation given orally by the Second defendant whilst the applicant was appearing in violation of Migration Act 1958 (Cth) s 424AA(a)(b)
3. The second respondent failed to accord the applicant natural justice and procedural fairness in violation of the Migration Act 1958 (Cth) s 424AA as the second respondent:
a. did not give the applicant clear particulars of information that the second respondent considered was the reason or part of the reason for affirming the decision;
b. did not ensure the applicant understood why the information was relevant; c. did not invite the applicant to comment or respond to the information;
d. did not advise the applicant that they may seek additional time to comment or respond to the information;
e. did not adjourn the review so that the applicant has additional time to comment on or respond to the information.
(c) Failure to seek information, in violation of Migration Act 1958 (Cth), s 424 4. In conducting the review, the second respondent may get any information that it considers relevant. However, if the second respondent gets such information, the second respondent must have regard to that information in making the decision on the review.
5. The second respondent did not invite, either orally (including by telephone) or in writing, the applicants to give information.
(d) Failure to Review the Decision in violation of Migration Act 1958 (Cth) s 414 6. The second respondent failed to properly review the decision as it did not accord the applicant natural justice and procedural fairness which in effect deprived the applicant of a fair hearing and the right to give evidence and present arguments in violation of Migration Act 1958 (Cth) s 414.
7. In discharging its statutory obligation under s 420(2)(b) of the Act the tribunal may as part of the inquisitorial process in some instances be obliged to undertake its own inquiries and investigations, in particular where the issues directly concern the applicant and relate to matters upon which the applicant could reasonably be expected to be able to give evidence. The failure to make such inquiries established the ground of review and jurisdictional error.
Ground 2: Natural Justice-The Bias Rule
8. The second respondent made a series of adverse findings regarding the credibility of the applicant, rejecting out of hand, almost all of the applicant's claims, on the basis of credibility, which constituted a reasonable apprehension of bias.
Ground 3: Error of Law
9. The second respondent has erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to applying the correct test of a 'real risk' of significant harm.
10. The tribunal failed to undertake the task given to it by parliament as to whether the appellants had a subjective fear of persecution and whether it was well founded on Convention grounds and therefore an error was made. The tribunal failed to find for or against the facts upon which the appellants' fear was based, did not define which claims it accepted and which it rejected, and did not determine whether the accepted facts would amount to a well-founded fear of persecution on Convention grounds.
Ground 4: No Evidence
11. There was no evidence or other material to justify the making of the series of adverse credibility findings by the second respondent, which rejected out of hand, almost all of the applicant's claims on the basis of credibility or the second respondent relied on facts, which did not exist.
Ground 5: Relevant Considerations
12. The second respondent failed to take into account relevant considerations, in the exercise of power.
13. There were a series of adverse credibility findings made by the second respondent. The individual and cumulative effect of those findings meant that the second respondent did not take into account the claims and evidence of the applicant, which the second respondent was required to do.
Ground 6: Irrelevant Considerations
14. The second respondent took into account irrelevant considerations, in the exercise of power.
15. The tribunal erred by concentrating its attention upon whether the circumstances leading up to the departure of the appellants showed a real chance of persecution at that time, and thus failing to address the central issue in the case presented by the appellants that there is now a real chance of persecution. This constituted a failure to act according to substantial justice and the merits of the case as required by s 420(2)(b) of the Act.
Ground 7: Unreasonableness
20. The second respondent exercise power in a manner that is unreasonable that no reasonable person could have so exercised the power. Alternatively, the second respondent reasoned illogically or irrationally and the findings lack evident or intelligible justification.
The application identifies the Court may hear and determine all interlocutory or final issues and it may give directions for the future conducts of the proceedings.
The matter was called at 9.30a.m. and again at 10.30a.m., and there was no appearance. However, due to a communication received by the solicitor for the first respondent, the matter was stood down till 3.00p.m., and Mr Joel, as a courtesy to the Court, appeared on behalf of counsel for the applicant.
Mr Joel identified that it was not a matter that he was familiar with and he could not add anything beyond what was identified in the grounds and formally sought an adjournment. There is no utility in granting adjournment if proceedings are doomed to failure, as it will only increase the cost to the parties and utilise limited Court time. For the reasons given in this decision, I am clearly satisfied that the proceedings are doomed to failure and that there would be no utility in granting an adjournment.
I take into account the principles and caution in respect of the summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].
In relation to ground 1(a), it is clear this ground is without substance, and it is contrary to paragraph 15 of the decision of the Tribunal. There is no substance in the asserted breach of s.425(1) of the Migration Act.
In relation to ground 1(b), this is also entirely inconsistent with paragraphs 51, 52 and 53 of the Tribunal’s decision, and moreover, the information identified is information within s.424A(3)(a). There is nothing in ground 1(b) that identifies a jurisdictional error. I am satisfied that there was no breach of s.424AA.
In relation to ground 1(c), this ground is without substance. It is not the case that a Tribunal must identify all information to which it has regard, and there is no substance in the allegation of a breach of s.424.
In relation to ground 1(d), there is no substance in the assertion of the breach of s.414, and no substance in the assertion that the Tribunal was required to take some further steps under s.420(2)(b) than the steps that were clearly taken, which was a review according to substantial justice and the merits of the case.
The generalised bias ground identifies no conduct that could support a claim of apprehended bias. There is nothing identified in ground 2 that might cause a reasonable person to apprehend that the Tribunal failed to bring an impartial, independent mind to the determination of the case on its merits. It is not appropriate to advance a generalised ground of apprehended bias in the form found in this application. It was patently vexatious.
In relation to ground 3, it is clear from the findings of the Tribunal in paras.5-8 and para.67 that there is no substance in this ground and that it is otherwise an impermissible challenge to a finding of fact.
I move to ground 4. It was clearly a matter within the Tribunal to make findings in respect of credibility, and there is no substance in ground 4 as identifying any arguable jurisdictional error issue.
Ground 5 is also wholly lacking in substance and does not identify any arguable jurisdictional error.
In relation to ground 6, this is again generalised allegation which does not identify properly any jurisdictional error, and I am satisfied that it cannot be said that the Tribunal took into account irrelevant considerations in the exercise of its power, nor did the Tribunal err in any manner as alleged in this ground.
In relation to ground 7, I am satisfied that the findings of the Tribunal cannot be said to lack an evident and intelligible justification.
The Tribunal identified in its reasons that the applicant applied for a protection visa on 7 November 2013 which was refused on 14 March 2014. The applicant appeared before the Tribunal 12 December 2014 to give evidence and present arguments. The applicant was assisted by an interpreter represented by his registered migration agent. The Tribunal carefully identified the relevant law and turned to consider the applicant’s claims. The Tribunal identified the documents provided by the applicant in support of his claims, and at the hearing, the applicant requested time to submit further material in support of his application. The Tribunal allowed him until 2 January 2015, and he provided copies of media reports and a further report.
The Tribunal carefully identified the applicant’s working history until he left Lebanon. It is relevant in this regard that the applicant applied for a sponsored family visa on 20 February 2013. The delegate refused to grant that visa. However, that decision was set aside on 31 July 2013 when the applicant was issued with a sponsored family visa on 13 September 2013. The applicant arrived in Australia on 19 September 2013, and his sponsor family visitor visa was only valid until 18 November 2013. The applicant then applied for a protection on 7 November 2013.
The Tribunal carefully considered the applicant’s claims and relevantly found:
40. I do not accept that Shia threaten Sunnis in [M]. It is a Sunni dominated area as the applicant said. The country information before me, including the DFAT Thematic Information Report, Sectarian Violence in Lebanon, does not support a finding that Sunnis are at risk from Shia in [M]. The Tribunal does not accept that the applicant is threatened by Shia in general in [M], or from Shia in the Lebanese army, or would be if he returned.
41. I find that the applicant was not claiming that he would otherwise be harmed by the army. To the contrary, his evidence was that the army was protecting Sunnis with views he holds against ISIS and other militant Sunnis and if you have a problem with the army, you go to them for protection.
42. I do not accept that there is a real chance that the applicant would suffer serious harm or that there is a real risk that he would suffer significant harm, from ISIS or Al Nusra or other Sunni militants in the reasonably foreseeable future if he returned to Lebanon. The Lebanese army’s pursuit of militants to [M] reported in the 5 November 2014 report was after a soldier was kidnapped. The fighting was between the army and the militants and was for a short duration. While there is conflict from time to time in the [B] area between Sunnis and Alawites, the country information before the Tribunal, including the DFAT Thematic Information Report on Sectarian Violence in Lebanon and the 5 November 2014 report, does not support a finding that ISIS or Al Nusra or other Sunni militants constitute a threat to Sunnis in [M] like the applicant who do not support their militant views.
In relation to the future movement, the Tribunal relatively found:
55. The inconsistencies between the applicant’s evidence about his activities in the Future Movement and the information in the letter from the claimed leader, [BR], and the inconsistencies between the applicant’s evidence about when the claimed the incident occurred, his injuries and treatment, and the information in the medical report, lead me to find that the applicant’s evidence is not credible. I do not accept that any incident occurred. I do not accept that the applicant was injured in any incident or had treatment as a consequence or was threatened thereafter. I do not accept that he was a prominent, well-known member of the Future Movement, or targeted by Shia or groups associated with Hezbollah or 8 March forces for that reason or just because he was Sunni. In making that finding, the Tribunal has taken into account that the letter from [BR] refers to the applicant having problems and assaults from persons associated with 8 March forces. However, given the lack of detail about the “problems and assaults”, I give that evidence little weight in light of the inconsistencies in the applicant’s evidence about the incident and the inconsistencies between his evidence and the information in the medical report.
Relatively in relation to the alleged bombing of a mosque in Tripoli, the Tribunal found:
64. I do not accept that the applicant was present at the Al Salem mosque when it was bombed. He did not know the name of the sheik. He said that the streets did not have names. The media report of 23 August 2013 names the Salafist preacher and said that the car bomb near that mosque was on [M] Street. The street did have a name. The applicant’s claim that it did not was in response to my asking what the name of the street was. The applicant did not say he did not know the name. The applicant’s evidence was unpersuasive. I do not accept his explanations for not mentioning the bombing in his application or at the departmental interview. His evidence about the nature of the incident and the media report indicate that it would have been a terrifying event. That he did not mention it is inconsistent with his being present.
65. I also do not accept that three quarters of the people in his area prayed at the mosque in Tripoli which was bombed. He only gave that evidence after he had said that his three uncles live in [B] but work as taxi drivers in Tripoli and that is why they went to the Tripoli mosque to pray. I asked him why he was with them. He responded that three quarters of the people in his area prayed at the Tripoli mosque. I find that he gave that evidence to overcome an obvious difficulty in his case: his uncles had a reason to attend the mosque but he did not. It was also not consistent with his explanation that his uncles went to the mosque because they worked in Tripoli. He gave no explanation why he was with them when they were working. I do not accept that he attended mosques in Tripoli or would if he returned to Lebanon. There is no country information before me that mosques have been bombed in [M] or [B].
It was in these circumstances that the Tribunal made adverse findings in its conclusion as follows:
66. For the above reasons, I do not accept that the applicant’s claims about what has happened to him in Lebanon are credible. They are not supported by country information.
67. For the above reasons, I am not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to Lebanon.
68. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
The Tribunal then turned to consider the issue of complementary protection and relevantly found:
70. Because I do not accept that the applicant’s claims are credible or supported by country information, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.
71. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
72. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
The findings made by the Tribunal were clearly open, the applicant was clearly given a genuine hearing, and the grounds identified for the reasons already expressed are doomed to failure.
I note that the grounds in this application again appear to reflect a pro forma form of grounds used by the same lawyer in other cases in circumstances where the grounds do not appear to identify any proper jurisdictional error, and I draw attention to the obligation of lawyers to comply with the provisions of the Migrations Act in settling alleged grounds of jurisdictional error.
For the reasons I have given, these proceedings are doomed to failure. I am clearly satisfied the proceedings have no reasonable prospect of success. I summarily dismiss the proceedings.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 14 April 2015
CORRECTIONS
Order 2 amended by deleting “1367” and substituting “$1100.”
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Jurisdiction
-
Procedural Fairness
-
Summary Judgment
0
1
4