ADA15 v Minister for Immigration and Border Protection

[2016] FCCA 291

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADA15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 291

Catchwords:
MIGRATION – Protection visa – review of decision by Refugee Review Tribunal – whether the Tribunal was obliged to raise information with the applicant – whether the Tribunal complied with such an obligation – information found to have been given to the Tribunal by the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 424A

Applicant: ADA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 572 of 2015

Judgment of: Judge Smith

Hearing date: 4 February 2016

Date of Last Submission: 4 February 2016

Delivered at: Sydney

Delivered on: 17 February 2016

REPRESENTATION

Counsel for the Applicant: Mr J. Young

Counsel for the First Respondent: Mr M. Cleary

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 572 of 2015

ADA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh. He most recently arrived in Australia on 6 November 2013 and was permitted to enter and stay here for a limited time pursuant to a visa granted to him in Bangladesh. On 19 November 2013 he applied for a protection visa. In that application he stated that he had been granted a subclass 600 visa on 19 September 2013. I will refer to the fact of the date of the grant of the visa as the “information”.

2. On 1 April 2014 a delegate of the Minister refused to grant the applicant a protection visa and he applied to the Refugee Review Tribunal[1] for review of that decision. At the hearing conducted by the Tribunal, the Tribunal raised the information with the application for his comment and noted that, in spite of having had a visa in September 2013, he did not arrive in Australia until November 2013. The applicant responded to the Tribunal, at the hearing as well as in writing after the hearing. On 9 February 2015 the Tribunal affirmed the delegate’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

3. The applicant argues that the Tribunal did not raise the information at the hearing in the way required by the Migration Act 1958 (Cth) and so fell into jurisdictional error. This argument fails for two reasons: first, there was no obligation on the Tribunal to raise the information with the applicant at all; and secondly, even if there were such an obligation, the Tribunal complied with it. The concise argument presented by counsel at the hearing allows me to express my reasons for that conclusion briefly.

4. Section 424A(1) of the Act requires the Tribunal, amongst other things, to give “clear particulars of any information” that it “considers would be the reason, or part of the reason, for affirming the decision that is under review” and to invite the applicant to comment on or respond to the information. That must be done in writing (s.424A(2)) unless the Tribunal follows the procedure in s.424AA which allows the Tribunal to raise the relevant information orally. Two of the elements of that procedure are that the Tribunal must advise the applicant that he or she may seek additional time to comment on or respond to the information and, secondly, if the applicant seeks additional time to comment on or respond to the information, adjourn the review if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

5. The obligation under s.424A(1) is subject to s.424A(3). That subsection provides that s.424A does not apply to certain information. Relevantly, sub-s.424A(3)(ba) provides that s.424A does not apply to information “that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department.” That exception applied here. The visa application was quintessentially “part of the process that led to the decision under review” and, as I have noted, the applicant gave the information as part of that application. For that reason, s.424A did not apply to the information and so, whatever procedure adopted by the Tribunal, there was no breach of that provision and no jurisdictional error affecting its decision.

6. In any event, the procedure required by s.424AA was complied with by the Tribunal. The relevant parts of the transcript of the hearing are as follows:

   …

   Q.One of the other things that I would like to put to you under section 424AA is just in relation to the dates that you made the application to come to Australia. This information is - sorry - the Tribunal considers would be subject to your comments or response, be the reason or part of the reason for affirming the decision. And this is specifically in relation to the second visa application. The departmental records indicate that the application was made - was lodged on 6 September 2013 and that the visa was granted on 19 September 2013. This is before the date you told me you had decided to leave which was in October in 2013. And you told me that you didn't leave until November. I think it was November 2013. So there's two issues here really. One the delay in waiting to leave. You got the visa in 19 September 2013, but you didn't leave until November 2013. If I rely on this information I may find that your delay in leaving indicates that you did not hold a genuine fear for your safety at the time, and this information then would be the reason, or part of the reason, for affirming the decision. But also it seems inconsistent that you've applied for this visa and were granted this visa, but you actually - what you told me today - hadn't decided to leave until October 2013. Inconsistent with what you told me. Therefore, I may not believe you are telling me the truth in relation to when you decided to leave, and this information would be the reason, or part of the reason, for affirming the decision. Again, like last time, I'm giving you the opportunity to comment on or respond to this information. You can take some time to do that. You can request for that time if you'd like. How would you like to proceed?

   A.INTERPRETER: Yes, I- I want some time.

   Q.Okay. Well, maybe I'll give you some time to speak to your representative first in relation to how much time you want.

   MEMBER:Mr [applicant’s migration agent].

   [AGENT]:     Yes, Member.

   MEMBER:Have I been clear about the information?

   [AGENT]:     Yes.

   MEMBER:It's basically the date of application and the date of grant compared to when he's - - -

   [AGENT]:     Yes.

   MEMBER:So I'm happy to give - how long would you like to speak to your   client about this?

   [AGENT]:     Do you want me to speak to him about the letters as well. That probably--

   MEMBER:Yes, if you can get some instructions on that that would be efficient.

   [AGENT]:     Yes.

   MEMBER:What I'd like to talk about when we come back though is, first, your client's request for time to respond to the section 424AA information because that's what I'll consider first.

   [AGENT]:     Yes.

   MEMBER:And if he wants to respond and maybe appeal. If he wants to take some time and I'll consider whether I'll give time for a response to that.

   …

   MEMBER:Do you want me to give you ten minutes just in case—

   [AGENT]:     Ten minutes, yes.

   MEMBER:Okay. Why don't we do that for ten minutes and then we'll come back. Thank you.

   [AGENT]:     Okay. Thank you.

   MEMBER:This matter is adjourned for ten minutes. The time is 1.18pm. All the parties have left the room. I'll now stop the recording.

   SHORT ADJOURNMENT

   COURT OFFICER:     The hearing is now resumed. The time is 1.31pm.

   MEMBER:Thank you very much.  Were you able to get anybody to-­

   [AGENT]:     Yes, Member.  Yes, Member.  Yes.

   MEMBER:So you've been able to effectively speak to your client?

   [AGENT]:     Yes, Member.  Yes.

   MEMBER:Okay.  Good.  That's good to know.

   Q.How would you like to proceed?

   A.INTERPRETER: ..not transcribable.. My application was lodged in September and the problems started before that. And when they declared the next election in October the problem was more deep. When my problems started I talk with my sister, that's why she apply for me, but because the problem was deepening in October. And when the problem was deepening in October then that's why - when I decided that I would leave the country.

   Q.Thank you for that.

   MEMBER:Did you have an opportunity to speak to your client about time and whether he wanted to put any extra statements in?

   [AGENT]:     Yes, Member. Yes. Yes, he said ten days.

   MEMBER:Ten days.  That's to get extra - more statements or--

   [AGENT]:     Yes.

   MEMBER:More detailed statements?

   [AGENT]:  Yes, more statements.

   MEMBER: I don't want - sorry.  I don't want to put words in your mouth.

   [AGENT]:     Yes, from [name omitted] and his uncle.

   MEMBER:Okay. That takes us to 24 November.

   …

   Q.Okay. Is there anything further that you'd like to say to me today, Mr [Applicant]?

   A.WITNESS: ..not transcribable ..

   Q.What will happen now is I'll wait until 24 November for any extra information or material that you'd like me to consider. Then I'll think about everything that we have spoken about and all the information that you've provided. And I'll make a decision, and I'll write to you through your representative and let you know what that decision is and the reason for that decision. Thank you very much for your time today.

   WITNESS:Thank you so much.

   [AGENT]:     Thank you, Member.

   MEMBER:Thank you, Madam Interpreter. ..not transcribable.. I appreciate that. Goodbye.

   …

   (Errors in original)

7. The applicant argued that these passages show that the Tribunal was aware that the applicant wanted further time but had not considered whether to adjourn the review: see sub-s.424AA(1)(b)(iv). I disagree. The Tribunal allowed a short adjournment of the hearing to allow the applicant to obtain advice about the course he wished to take. The Tribunal was, at that stage, contemplating the possibility of adjourning the review to allow further time to respond to the information if the applicant so wished. When the hearing resumed, the applicant immediately gave a response to the information (see the underlined passage above). However, the Tribunal went on, in spite of this, to inquire whether any further time was required, and if so, how much. Ultimately, the Tribunal gave the applicant the time requested, thereby adjourning the review until at least that time.

8. The applicant argued that s.424AA required, in every case, that once the applicant sought further time, the Tribunal considered whether an adjournment was required and, if so, immediately adjourn the review without hearing any further argument or evidence on any matter related to the review. That argument has no foundation in the language of s.424AA and there is no evident purpose that such a construction would advance. Further, the construction would, in my view, require a significant re-writing of the provision in circumstances where the ordinary meaning of the words does not give rise to any absurd result. For those reasons, I reject the argument and find that the Tribunal complied with the procedure in s.424AA even though there was no obligation on it under s.424A.

Conclusion

1. The application must be dismissed for both of those reasons.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 17 February 2016