ACP15 v Minister for Immigration

[2015] FCCA 798

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACP15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 798

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Judiciary Act1903, s.78B
Migration Act 1958, ss.91R(1), 476

Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd  (1999) 95 FCR 292; (1999) 167 ALR 303; [1999] FCA 1151
Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: ACP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 527 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

There being no appearance by or on behalf of the Applicant.

Counsel for the First Respondent: Ms B. Griffin

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay Respondent’s costs fixed in the sum of $1300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 527 of 2015

ACP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction under s.476 of the Migration Act 1958 in which the applicant seeks a Constitutional writ in respect of the decision of the Tribunal made on 9 January 2015 affirming the decision not to grant the applicant a Protection (Class XA) visa. 

2. The application identifies:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The matter was listed for 9.30a.m. and was called and there was no appearance.  The matter was again called at 10.30a.m. and there was no appearance for the applicant on either occasion. 

4. In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28.

5. The Court has carefully considered the application and the decision and is of the view that the proceedings have no reasonable prospect of success.  The grounds 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.

   f. At no point in the Decision Record was section 91R(3) put the applicant. Once the second respondent raised and made adverse credibility findings regarding the applicant, the second respondent was required to squarely raise section 91R(3) with the applicant and give the applicant as opportunity to respond to it.

   (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: Contrary to Law

   20. The second respondent made a series of adverse findings regarding the applicant’s expression of political opinion, actual or imputed, which was contrary to the applicant’s implied right to political communication under the Constitution.

   Particulars

   The Implied Right to Political Communication

   21. The High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 567-8 unanimously agreed that the implied freedom was part of Australian constitutional law and enunciated a single test for constitutionality.

   22. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

   23. Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting amendment of the Constitution to the informed decision of the people.

   24. If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.

   The Applicant's Expression of Political Communication

   25. The second respondent made a series of adverse credibility findings which interfered or offended the applicant's right to political opinion, actual or imputed, or the applicants right to political communication.

   26. At [31], the applicant and his family are committed Shi'ites and have long opposed Hezbollah. Their opposition was amplified following the death of his brother in 1999 when he was struck by a stray bomb during the Hezbollah fighting with Israel.

   27. Consequently, the applicant became a pacifist and maintains a conscientious objection to all forms of military conflict and violence. He in particular opposes Hezbollah’s constant calling for war against Israel, and more recently their involvement in the Syrian civil war to aid and abet the Syrian regime led by President al-Assad.

   28. At [43], when asked if the applicant had expressed his anti-Hezbollah views in Australia to assist his protection application, the applicant said that is not true. He already held that view of Hezbollah, which was increased by the way in Syria. He just became more vocal when he applied for protection.

   29. At [64], the Tribunal accepted that the applicant is critical of Hezbollah and what it does. He opposes their being armed, supporting the Syrian regime, fighting in the Syrian conflict, forcibly recruiting fighters, their power as government within a government in Lebanon, tainting all Shia, making them the target of Sunni groups and oppressing Shia opponents.

   30. At [65], the Tribunal accepted that Hezbollah is armed, and with Amal, controls security in most of southern Lebanon, the southern suburbs of [B], and the northern half of [BG]. That is, Hezbollah is in control of the area where the applicant lives in south Lebanon. His evidence supported that finding. That being so, the Tribunal did not 'accept that there is a real chance or a real risk that the applicant would suffer serious or significant harm in Lebanon from Sunni groups if he returned to Lebanon.'

   31. At [66], the second respondent found that his 'claims about the strength of his anti-Hezbollah views and the harm he will suffer because he opposes Hezbollah are exaggerated.'

   32. The second respondent exercised power under the Migration Act 1958 (Cth), in particular sections 36(2)(a), (aa), in a manner which impermissibly interfered or contravened the applicant's free exercise of political opinion or communication, or wrongly imposed a test on the applicant's free exercise of political opinion or communication in violation of the applicant's right to political opinion or communication, contrary to the Constitution.

   Ground 4: Error of Law - Misapplication of law or failure to ask the correct question

   20. The second respondent has erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question before it.

   Particulars

   (a) Section 91R(3) was not Squarely Raised with the Applicant 21. At [43], when asked if the applicant had expressed his anti-Hezbollah views in Australia to assist his protection application, the applicant said that is not true. He already held that view of Hezbollah, which was increased by the war in Syria. He just became more vocal when he applied for protection.

   22. At no point in the Decision Record was section 91R(3) formally put to the applicant. Once the second respondent raised and made adverse credibility findings regarding the applicant, the second respondent was required to squarely raise section 91R(3) with the applicant and give the applicant an opportunity to respond to it.

   (b) Impermissible consideration of conduct in Iran-S 91R(3)

   23. The second respondent erred by considering the conduct of the applicant in Iran before coming to Australia or the applicant's future conduct if refouled to Iran. Section 91R(3) only permits the second respondent to ‘disregard any conduct engaged in by the person in Australia’. In light of the plain language of 91R(3), it is the conduct of the applicant in Australia that engages section 91R(3), not the conduct of the applicant in another country in the past of the future. Also, it only applies to the refugee criterion and not the complimentary criterion.

   24. The second respondent impermissibly conflated the conduct of the applicant in Iran with his conduct in Australia and erred. Further, the second respondent did not articulate that the section 91R(3) only applies to the refugee criterion and not the complimentary protection and has impermissibly conflated s 91R(3) to both refugee and complimentary criterions.

   (c) Failure to Ask the Correct Question - whether subjective fear of persecution based on political opinion, actual or imputed

   25. 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 5: No Evidence

   9. 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 6: Relevant Considerations

   10. The second respondent failed to take into account relevant considerations, in the exercise of power.

   11. 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 7: Irrelevant Considerations

   12. The second respondent took into account irrelevant considerations, in the exercise of power.

   13. 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 8: Unreasonableness

   20. The second respondent exercise power in a manner that is so 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.

6. Each of the grounds are lacking in substance.  In relation to ground 1, paragraph (a), it is clear that the Tribunal complied with its obligations of procedural fairness and gave the applicant an opportunity to meet the concerns in relation to credibility that were raised.  Relevantly, see paras.44, 49, 50, 55 and 56. The applicant had a genuine hearing and part of the review by the Tribunal requires an assessment of credibility.  Ground 19(a), accordingly, has no substance. 

7. Ground 1(b) is clearly inconsistent with para.42 and 66 of the Tribunal’s decision and further, to the extent of country information, is contrary to s.424(3A).  I am satisfied that there is no substance in ground 1(b).

8. In relation to the additional argument under ground 1(b) relying upon s.91R(3), the proposition raised has no substance. 

9. In relation to ground 1(c), neither paragraph has any substance and it is not the case that the Tribunal must refer to all material to which it had regard in its decision.  Ground 1(c) is clearly without substance.

10. Ground 1(d) is inconsistent with a decision of the Tribunal and its reasons and there is no substance in the allegation raised of non-compliance in s.414 or the asserted non-compliance with s.420(2)(b). 

11. In relation to ground 2, there is no conduct identified that is capable of supporting a finding that a reasonable person might think that the Tribunal failed to bring an impartial and independent mind to the determination of the matter on its merits.  Accordingly, ground 2 has no substance. 

12. Ground 3 seeks to impermissibly challenge the findings of fact that it were clearly open to the Tribunal. The position that there is a Constitutional argument that ss.36(2)(a) and 36(2)(aa) impermissibly interfere with the applicant’s free exercise of political opinion or communication is vexatious and an abuse of process. This Court is bound by the provisions of s.78B of the Judiciary Act1903 to take certain steps where there is a real and substantial constitutional issue that is raised in proceedings.

13. It is clear that the issue sought to be raised in the present case falls into the category identified by French J (as he then was) in Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292; (1999) 167 ALR 303; [1999] FCA 1151:

    14. Section 78B does not impose on the court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation: Nikolic v MGIC Ltd [1999] FCA 849; cf Australian Securities and Investments Commission v White (Fed C of A, Drummond J, 16 July 1998, unreported).

    …

    20. The scope of a ``matter'’ in respect of which the court has jurisdiction is defined by the controversy between the parties, but nothing in the concept of matter as developed in the cases requires that its characterisation as ``arising under the Constitution or involving the interpretation of the Constitution'’ should depend critically upon the particular pleadings, claims or assertions made by the parties. Assertion or non-assertion of a constitutional question is not determinative of the character of the matter. Toohey J said in Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 that:

    In terms of s 78B, a cause does not ``involve'’ a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical … But it must be established that the challenge does involve a matter arising under the Constitution.

    In that case the applicant's argument was based on a misunderstanding of the structure of the Family Court involving no more than a consideration of the division of functions that is a feature of any court. The mere assertion that there is a constitutional point, will not establish that the matter is one arising under the Constitution or involving its interpretation. On the other hand the failure to assert the constitutional point does not mean that a matter is not one arising under the Constitution or involving its interpretation.

14. There is no live constitutional issue in this case. There is no need for the Court to take the steps required otherwise under s.78B, as there is no substance in ground 3.

15. In relation to ground 4(a), there is no substance in the asserted allegations concerning the application of s.91R(3).  The adverse findings of credibility made by the Tribunal were clearly open and did not give rise to obligation as articulated in para.22 of the grounds. 

16. In relation to ground 4(b), this is with respect to the draftsman nonsense.  The assertion that the Tribunal should not take into account the conduct that occurred in Iran would be failing to properly conduct the review.  There is no substance in the alleged error raised by 4(b). 

17. Ground 4(c) is also without substance.  It is contrary to paras.5-7 of the Tribunal’s decision and the finding made in para.73 and it is an impermissible challenge to findings that were open to the Tribunal on the material before it.

18. Ground 5 is completely lacking in substance and is, again, an impermissible challenge to the findings of fact that were open to the Tribunal.

19. Ground 6 is completely lacking in substance and, again, an impermissible attack on the findings of the Tribunal that it was open to the Tribunal to make.

20. There is no substance in relation to ground 7 and is clear that the Tribunal properly exercised its review and there is no substance in the alleged non-compliance with s.420(2)(b). 

1. Ground 8 is also without substance.  It cannot be said that the decision of the Tribunal lacks an evident and intelligible justification. 

2. In this case, the applicant applied for a visa on 5 August 2013, which was refused by the delegate on 21 March 2014.  The Tribunal notes that the applicant appeared before the Tribunal on 11 December 2014 by video-link to give evidence and present arguments and at the hearing he was assisted with an interpreter.  The Tribunal carefully sets out the applicant’s claims and, relevantly, concluded:

   73. The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future if he returns to Lebanon.  He does not have a well-founded fear of persecution for a Convention reason. 

   74. The Tribunal is 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).

   75. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

   76. For the reasons give above, the Tribunal does not accept 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 the applicant will suffer significant harm.

   77. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   78. 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).

3. Whilst it is open to the Court to simply dismiss the proceedings for want of appearance, I am satisfied that this is an appropriate case where the proceedings are so lacking in substance that the proceedings should be summarily dismissed. 

4. I note the Court has also identified that the generalised grounds, raised by the applicant – leaving aside the Constitutional reference – appear to be identical in format or almost identical in format with grounds settled by the same lawyer in other proceedings.  It is most important that practitioners are alive to their obligations under the Migration Act. 

5. The grounds in the present case appear in combination to be vexatious. There is no substance in any of the grounds.  The proceedings are clearly doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.   The proceedings are summarily dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 April 2015