ABU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 151
•12 February 2020
FEDERAL COURT OF AUSTRALIA
ABU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 151
Appeal from: ABU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2564 File number: NSD 1519 of 2019 Judge: JAGOT J Date of judgment: 12 February 2020 Catchwords: MIGRATION – application for leave to appeal – whether sufficient doubt about decision of Federal Circuit Court – application dismissed Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)
Federal Court of Australia Act 1976 (Cth) s 24(1)(a)
Cases cited: ABU19 v Minister for Immigration & Anor [2019] FCCA 2564 Date of hearing: 12 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Applicant: The Applicant appeared in person with the assistance of an Interpreter Solicitor for the First Respondent: Ms A Lucchese of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent did not appear ORDERS
NSD 1519 of 2019 BETWEEN: ABU19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
12 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant to pay the first respondent’s costs fixed in the amount of $3,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
These reasons for judgment concern an application for leave to appeal against orders of the Federal Circuit Court of Australia (the Federal Circuit Court) made on 11 September 2019. The Federal Circuit Court dismissed the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the AAT), pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). The AAT had affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The orders of the Federal Circuit Court were interlocutory orders pursuant to r 44.12(2)(a) of the Federal Circuit Court Rules. As a result, the applicant requires leave to appeal against the orders of the Federal Circuit Court: s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth).
The question whether leave to appeal should be granted involves two considerations. First, whether in all the circumstances the first instance decision is attended by sufficient doubt to warrant its reconsideration on appeal. Second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. Both of these preconditions must be satisfied before leave should be granted. The relevant consideration in the present case is whether the decision of the Federal Circuit Court is attended by sufficient doubt to warrant its reconsideration on appeal.
The application for leave to appeal identifies three grounds as follows:
1.The AAT, namely the Member who interviewed me, failed to understand my fear of harm as I explained. The Member failed to accept the issue of the dowry and the letter by Sheikh Yahya Safi which appears in Court Book p.281.
2.The AAT also failed to consider the submission by my lawyer Leonard Jacob and the police event number.
3.The Member misunderstood the claim.
(sic)
The draft notice of appeal which the applicant has filed also contains three grounds as follows:
1.His Honour Judge Driver agreed with the AAT decision not to grant me protection visa even though the AAT Member misunderstood my claim I continue to believe that the AAT and His Honour failed to understand my harm based on the event of the Police which is in the Court Book as well as the evidence provided by Imam, Lakemba Mosque, Sheikh Yahya Safi.
2.I continue to believe that the AAT erred by overlooking relevant material.
3.While I appreciate the AAT postponed the hearing I finally attended with my migration agent. I continue to say that the AAT Member failed to understand my argument and the fear of harm at the hand of my ex-wife's family.
(sic)
In its reasons for decision, the AAT noted at [29] that the applicant claimed that if he returned to Lebanon he would be killed by his ex-wife’s relatives because he and his ex-wife had divorced after marrying in Australia and he had not paid a dowry which his ex-wife’s relatives were claiming he should pay. At [29] the AAT also said that the applicant had no other claims.
At [54] of its reasons, the AAT stated that it disbelieved the applicant’s entire claim. It found that the applicant had not been threatened by his ex-wife’s family for not paying a dowry and that there had not been, nor would be, any threats to the applicant from his ex-wife’s family in Lebanon.
In its reasons for judgment, ABU19 v Minister for Immigration & Anor [2019] FCCA 2564, the Federal Circuit Court identified the applicant’s claims and the decision of the AAT. It identified the three grounds on which the applicant relied in support of the application for judicial review of the AAT’s decision. Those grounds appear at [12] of the reasons for judgment of the Federal Circuit Court.
As to ground 1, which was to the effect that the AAT misunderstood the applicant’s claim, the Federal Circuit Court said at [22] that the AAT’s reasons revealed that it had considered the applicant’s claims in writing, as well as the further evidence given by the applicant. The Federal Circuit Court concluded that the findings the AAT made were open to it on the evidence that was before it.
The Federal Circuit Court considered that ground 2 of the applicant’s application was not a proper ground for review, but that to the extent that it was a contention that the applicant was not provided with a real and meaningful opportunity to participate in the hearing, there was no evidence to support the contention: see [24] of the reasons of the Federal Circuit Court.
In respect of ground 3, to the effect that the AAT’s decision was unreasonable, the Federal Circuit Court concluded that the AAT was not obliged to accept the applicant’s claims and evidence uncritically, and the weight to be given to those claims and evidence was a matter for the AAT. The Federal Circuit Court concluded that ground 3 did not raise an arguable case for the relief sought.
At [29] of its reasons for judgment, the Federal Circuit Court concluded that the applicant had been unable to demonstrate an arguable case of jurisdictional error by the AAT.
In respect of the applicant’s three grounds of application for leave to appeal, the first ground is to the effect that the AAT failed to understand the applicant’s fear of harm. In written and oral submissions, the applicant contended that he had claimed to fear harm due to his actual and imputed religious beliefs, and it was the duty of the AAT to ask relevant questions and to consider his claims adequately.
The applicant referred to paragraphs 2 and 5 of his statutory declaration in his oral submissions. Paragraph 2 states that the applicant was claiming persecution on the ground of actual and implied religious beliefs. Paragraph 5 states that the applicant was born a Sunni Muslim but did not consider himself to be a committed member of his faith. In his oral submissions, the applicant stated that he did not believe he was obliged to pay any dowry to his ex-wife’s family because he was not religious. However, his ex-wife’s family were fundamentalists and had made him an “unbeliever”, so he would be killed if he had to return to Lebanon.
The Minister submitted that the applicant has attempted to recast his claims. I accept this submission. It is clear from the balance of the applicant’s statutory declaration that he only claimed to fear harm in Lebanon from his ex-wife’s family, as a result of his failure to pay a dowry. It was reasonably open to the AAT to characterise the applicant’s claims in the way it did at [29] of its reasons for decision. The contention that the AAT failed to understand the applicant’s fear of harm, accordingly, cannot be accepted.
The applicant made no submissions, either written or oral, in support of ground 2 of the application for leave to appeal. It follows that ground 2 also cannot support the applicant’s claim for leave to appeal.
Ground 3 of the application for leave to appeal is in general terms. To the extent that ground 3 raises the same issue of the AAT allegedly misunderstanding the applicant’s claim, the ground does not advance the applicant’s position, for the reasons already given.
In respect of the three grounds in the draft notice of appeal, I accept the Minister’s submissions that ground 1 does not rise any higher than the applicant’s disagreement with the findings of the AAT and the conclusions of the Federal Circuit Court. Ground 2 is not particularised and cannot constitute a sufficient basis to justify the reconsideration of the Federal Circuit Court’s decision. Ground 3 repeats the applicant’s contention that the AAT failed to understand his fear of harm at the hands of his ex-wife’s family. That contention has already been rejected above.
In his written and oral submissions, the applicant also contended that the AAT failed to consider his fear of harm based on generalised violence in Lebanon. There is no evidence, however, that the applicant made a claim to a protection visa based on the risk of generalised violence in Lebanon.
The applicant has not discharged his onus of satisfying me that the decision of the Federal Circuit Court is attended by sufficient doubt to warrant its reconsideration on appeal. For these reasons, the application for leave to appeal must be dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 18 February 2020
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