Abu19 v Minister for Immigration

[2019] FCCA 2564

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABU19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2564

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 425, 438

Cases cited:

Minister for Immigration v Li [2013] HCA 18

Minister for Immigration v SCAR (2003) 128 FCR 553

Minister for Immigration v Singh [2014] FCAFC 1

Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Immigration v SZMTA [2019] HCA 3

Randhawa v Minister for Immigration (1994) 124 ALR 265

WZAVW v Minister for Immigration [2016] FCA 760

Applicant: ABU19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 37 of 2019

Judgment of: Judge Driver

Hearing date: 11 September 2019

Delivered at: Sydney

Delivered on: 11 September 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr T Hillyard of Sparke Helmore

INTERLOCUTORY ORDERS

1. The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 37 of 2019

ABU19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 12 December 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to the applicant’s claims and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 2 September 2019.

3. The applicant, a citizen of Lebanon, applied for a protection (class XA) visa on 26 August 2015.[1]  On 15 March 2016, the Minister refused to grant the visa.[2]  On 29 March 2016, the applicant applied to the Tribunal for review.[3]

   [1] Court Book (CB) 53-87

   [2] CB 131-145

   [3] CB 146-147

4. On 29 October 2018, the applicant appeared before the Tribunal to give evidence and present arguments.[4]  The hearing was adjourned until 31 October 2018, at which time the applicant appeared before the Tribunal.[5]  The hearing was again adjourned to 7 November 2018, at which time the applicant did not appear.[6]  On 23 November 2018, the applicant attended a hearing at the Tribunal accompanied by his migration agent.[7]

   [4] CB 202

   [5] CB 208

   [6] CB 222

   [7] CB 263

5. On 12 December 2018, the Tribunal affirmed the delegate’s decision.[8]

   [8] CB 291-302

Applicant’s claims

1. The applicant’s claims, as set out in a statutory declaration accompanying his visa application, were as follows:[9]

   a)the applicant married his ex-wife after his last arrival in Australia in September 2011 but his marriage broke down two months after the wedding due to domestic violence by his ex-wife and her family.  The applicant applied for a partner visa under the family violence provisions.  However, this visa was refused;

   b)the applicant continued to experience threats of violence and revenge from the family of his ex-wife.  The applicant claimed the threats had persisted because he refused to pay his ex-wife the dowry payments;

   c)the applicant feared returning to Lebanon because the family of his ex-wife would carry out their threats to physically harm him.  The authorities in Lebanon were hesitant to intervene in cases relating to family disputes and would not protect him; and

   d)the applicant had reported the threats to the NSW police, but was advised that he would not be successful in taking out an apprehended violence order as he was unable to identify the culprits.

   [9] CB 91-95

Tribunal decision

1. The Tribunal set out the procedural background to the review, the relevant legislation and the applicant’s claims and evidence.[10]

   [10] CB 292, [1]-[42]

2. The Tribunal found that the certificate issued pursuant to s.438 of the Migration Act 1958 (Cth) (Migration Act) on the Minister’s departmental file sent to it was invalid. The Tribunal advised the applicant of the presence of the certificate and informed him that it would not take it into account.[11]

   [11] CB 295, [28]

3. The Tribunal found that the applicant was not a reliable, credible or truthful witness.[12]  The Tribunal accepted that the applicant was married for a brief period and then divorced, but did not accept he owed any money as part of a dowry or was ever threatened by anyone in Australia or Lebanon.  The Tribunal found the applicant’s claims regarding non-payment of a dowry to be fabricated, noting the lack of compelling evidence to support the claim he was contractually obligated to pay a dowry.[13]  Further, the Tribunal found that there were inconsistencies in the applicant’s evidence as to who initiated the divorce between him and his ex-wife.[14]  The Tribunal noted that if the applicant’s ex-wife had initiated the divorce, the applicant would not have had to pay the remainder of the dowry.[15]  The Tribunal also found that the applicant’s statement to a psychologist in 2013 that his ex-wife’s father had never threatened him supported its finding that the applicant had fabricated his claim.[16]

   [12] CB 297, [46]

   [13] CB 297 [47]-[50]

   [14] CB 298, [51]

   [15] CB 295, [52]-[53]

   [16] CB 298, [54]

4. Further, the Tribunal noted that the applicant did not provide evidence of the police reports he made relating to domestic violence claims against his ex-wife, despite being granted an extension to do so.  The Tribunal recorded that the applicant had requested a further extension to provide this evidence, which the Tribunal denied as it considered the applicant had already been given more than sufficient time.[17]

   [17] CB 298, [55]

5. Having regard to the applicant’s evidence and claims, both singularly and cumulatively, the Tribunal found that there was not a real chance the applicant would suffer serious harm at the time of the decision or in the future.[18] Based on its anterior findings, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(a) or (aa) of the Migration Act.[19]

   [18] CB 298, [57]

   [19] CB 299, [58]-[62]

The present proceedings

1. These proceedings began with a show cause application filed on 8 January 2019.  The applicant continues to rely upon that application.  There are three grounds in it:

   1.The Tribunal Member misunderstood my claim and failed to recognise my fear of harm.

   2.At this stage I have not been able to concentrate as I was under pressure by the Member and by what happened to my wife who is currently in a disability stage. I do wait for copy of my file to be able to provide adequate error of law committed by the Member of the Tribunal. I submit with my application a medical report for my wife as well as marriage certificate.

   3.The decision of the Tribunal Member is not reasonable.

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 7 March 2019.

3. I invited oral submissions from the applicant this afternoon. The applicant made extensive oral submissions with the assistance of notes. His command over the available material was considerable. He was a powerful advocate in his own case. Some of the applicant’s submissions bore only on the merits of the Tribunal decision. Those merits are beyond the scope of this proceeding. However, several legal propositions can be divined from the applicant’s oral submissions. The first is the proposition that the Tribunal erred by overlooking relevant material. The second is the proposition that the hearing opportunity afforded the applicant under s.425 of the Migration Act was not a fair one.

4. Having heard the Minister’s solicitor in response to the applicant’s submissions, I am persuaded that those propositions are not arguable.

5. The applicant first asserted that the Tribunal failed to take into account police reports concerning events of family violence, of which he was the victim.  He took me to various parts of the court book which refer to police incident reports.  However, that material goes no further than to establish the existence of a police incident number.  It provides no evidence that the applicant was the victim of family violence, or indeed that he asserted he was.[20]

   [20] See CB 282, 286

6. Secondly, the applicant asserted that the Tribunal overlooked several submissions made on his behalf by lawyers or agents assisting him.[21]  I am persuaded, however, on analysis of the Tribunal’s reasons that the Tribunal did take into account all of the submissions made to it.[22]

   [21] See CB 116, 279

   [22] See in particular the decision at [42] and [56]

7. The applicant made particular reference to a statement from an Islamic sheikh, reproduced at page 281 of the court book.  The statement was presented in order to support the applicant’s claim that there was an outstanding debt resulting from the applicant’s divorce of his first wife, and a dispute over the money.  The Tribunal gave the statement little weight because of the form of it and because the statement said no more than that there was dowry payable on marriage, rather than divorce.  In my view, the Tribunal’s treatment of the statement by the Sheikh reveals no error.

8. As to the fairness of the Tribunal’s hearing, it is notable that the applicant was offered and attended four hearings.  There were multiple requests for adjournments and opportunities to submit more material.  For the most part, these were granted.  The record reveals the Tribunal going to unusual lengths to accommodate these requests.  The applicant was also assisted before the Tribunal by an agent and by an interpreter.

9. The Tribunal notes at [42][23] of its reasons a final request for the opportunity to present new information.  I am satisfied from that paragraph that the Tribunal took into account everything that was provided, even that received after the agreed date.

   [23] CB 297

10. There is no substance in the applicant’s written grounds.  Those are dealt with in the Minister’s submissions.  I agree with those submissions.

11. Ground 1 alleges that the Tribunal misunderstood the applicant’s claim, but is wholly unparticularised and should be dismissed on this basis alone.[24]  In any event, a fair reading of the Tribunal’s decision reveals that it considered the claims made by the applicant in writing as well as the further evidence given by the applicant at the hearing and made findings of fact that were open to it.

    [24] WZAVW v Minister for Immigration [2016] FCA 760 at [35]

12. Ground 2 is not a proper ground of review.  It may further be noted that the applicant has not filed an amended application or submissions as provided for in the orders of Registrar Morgan on 7 February 2019.  It may further be noted for completeness that contrary to the indication in this ground, the applicant has not provided a medical report for his wife or his marriage certificate, and in any event, it is not clear how these documents are relevant to the current review.

13. Insofar as this ground is a complaint that the applicant was not provided with a real and meaningful opportunity to participate in the hearing as contemplated by s.425 of the Migration Act, the evidence before the Court indicates that the hearing was adjourned twice to allow the applicant to have a migration agent present[25] and the Tribunal allowed a third adjournment after the applicant presented evidence that he was in hospital on the day of the third hearing date.[26]  There is no evidentiary basis for any suggestion that the applicant was not able to participate in the hearing, nor is there evidence of the applicant raising any issues in relation to his ability to participate during the hearing.[27]  Ground 2 does not raise an arguable case for the relief sought.

    [25] CB 294, [13]-[21]

    [26] CB 295, [25]

    [27] Minister for Immigration v SCAR (2003) 128 FCR 553 at [37]

14. Ground 3 is a broad assertion that the Tribunal’s decision was unreasonable. The Tribunal was not obliged to accept the applicant’s claims and evidence uncritically,[28] and the weight to be given to those claims and evidence was a matter for the Tribunal as part of its fact-finding function. This ground as pleaded is merely an emphatic way of expressing disagreement with the Tribunal’s decision,[29] and there is nothing on the face of the decision record to indicate that the Tribunal’s decision was arbitrary, capricious or without common sense.[30]  Ground 3 does not raise an arguable case for the relief sought.

    [28] Randhawa v Minister for Immigration (1994) 124 ALR 265 at 278

    [29] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124], [129]

    [30] Minister for Immigration v Li [2013] HCA 18 at [28]; Minister for Immigration v Singh [2014] FCAFC 1 at [44]

15. The Minister’s submissions also raised the issue of a s.438 certificate.[31]  In my view, for the following reasons, there is no arguable case that the Tribunal erred in relation to the certificate.

    [31] CB 151

16. The basis for the issue of the certificate was that the documents contain “information relating to an internal working document and business affairs”.  As was found by the Tribunal, the certificate was invalid as the specified reason for the non-disclosure was not capable of grounding a claim of public interest immunity.[32]

    [32] Minister for Immigration v SZMTA [2019] HCA 3 at [19], [39]-[40]

17. No error arises from the manner in which the Tribunal dealt with the certificate.  The Tribunal was correct to find that the certificate was invalid and complied with any procedural fairness obligations it had in respect of the certificate by informing the applicant of the existence of the certificate, and advising him that it believed the certificate to be invalid and would not be taken into account.[33]

    [33] CB 295, [28]

Conclusion

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore dismiss the application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:         13 September 2019