AJQ15 v Minister for Immigration

[2017] FCCA 2026

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJQ15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2026

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to comply with s.426 of the Migration Act 1958 (Cth) – whether the Tribunal erred by ignoring relevant material – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 426

Cases cited:

Minister for Immigration & Border Protection v SZVCH (2016) 244 FCR 366; [2016] FCAFC 127

Applicant: AJQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 335 of 2016

Judgment of: Judge Smith

Hearing dates: 12 October 2016 & 22 February 2017

Date of Last Submission: 22 February 2017

Delivered at: Sydney and Perth via video-link

Delivered on: 22 February 2017

REPRESENTATION

The applicant appeared in person by video-link

Solicitors for the Respondents: Mr D Ireland, Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 335 of 2016

AJQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The application seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 June 2016.  The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Lebanon who arrived in Australia in August 2007.  He has made a number of applications for the grant of a protection visa.  The first three were invalid and so were not considered by the Minister.  The fourth application, made on 25 February 2011, was based upon the applicant’s fear of harm in Lebanon for reason of his homosexuality.  That application was unsuccessful.

Background

1. On 11 November 2013, the applicant lodged a further application for a protection visa, after he had been taken to immigration detention.  The applicant claimed to fear persecution for reason of his being a Sunni Muslim.  However, he later gave evidence that he had no such fear and that his essential claim was, again, based upon his homosexuality.  In addition, the claim arose by reason of the fact that some of the applicant’s personal information was accidentally published on a website maintained by the Department of Immigration & Border Protection.  I will refer to that publication as the “Data Breach”.

2. On 5 January 2015, a delegate of the Minister made the decision to refuse to grant the applicant a protection visa, and the applicant applied to the Refugee Review Tribunal[1] (RRT) for a review of the decision.  In July 2015, the Tribunal took over the functions of the RRT and continued the review of the delegate’s decision.  On 13 March 2015, the Tribunal affirmed the decision of the delegate.  That decision was set aside by orders made by this Court and the matter was remitted to the Tribunal for conclusion of the review.

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

3. The applicant was invited to, and attended, a hearing conducted by the Tribunal on 1 March 2016.  That hearing was adjourned to 27 April 2016.  By that time, the applicant had retained the services of a migration agent for the purposes of the review and by email dated 24 March 2016, the applicant’s agent informed the Tribunal that the applicant wished to call a witness at the adjourned hearing.

4. The agent did not indicate that there was any need for an interpreter.  On 13 April 2016, the Tribunal wrote to the agent giving notice of the adjourned hearing, and asked the agent to complete the enclosed Response to Resumption of Adjourned Hearing Notice.  The agent did that, but he mentioned neither the proposed witness nor any requirement for an interpreter.  At the hearing, it appeared that the services of an interpreter were required in order for the witness to give evidence.  As an interpreter had not been arranged, the Tribunal was unable to take evidence from that person.

5. In light of that, the applicant was invited to submit a written statement by the witness.  That statement was provided by email from the applicant’s agent dated 4 May 2016.  In the statement, the witness stated that he had had a sexual relationship with the applicant while they were in detention together.  The Tribunal gave its decision on 10 June 2016 affirming the decision of the delegate. 

6. The Tribunal did not find the applicant was a credible witness because of cumulative concerns it had arising from inconsistencies, implausibilities, changes and contradictions in the applicant’s written and oral evidence.  The Tribunal found that the applicant tailored his responses to suit the particular circumstances at the time.  As a result, the Tribunal found that the applicant was not a homosexual or bisexual.

7. The Tribunal also considered the possible implications of the Data Breach.  It found that the details of the applicant’s protection claims had not been made available to the Lebanese authorities, and did not accept that there was a higher probability that the applicant’s uncle would be aware of the applicant’s reasons for applying for protection. The Tribunal concluded that the claim that there was a real chance that the Lebanese authorities, or anyone else in Lebanon, including the applicant’s uncle, would harm the applicant because he spent time in detention in Australia to be far-fetched and mere speculation.

8. For those reasons, the Tribunal was not satisfied that the applicant satisfied the criteria for the grant of the protection visa in either sub-ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act) ( I note in passing that as the applicant’s prior protection visa application had been made on the basis of the first of those criteria, the Tribunal was not required to consider that criterion again: see Minister for Immigration & Border Protection v SZVCH (2016) 244 FCR 366; [2016] FCAFC 127.

9. No complaint was made by either the applicant or the Minister about the fact that the Tribunal did consider the criterion.  In any event, I do not consider that it would provide any proper basis for the ground of constitutional relief and I leave it to one side.  The application filed by the applicant for judicial review raised two grounds:  first, jurisdictional error and secondly, ignoring relevant material.  No particulars were provided of those grounds, and no written submissions were filed by the applicant in support of them.

10. When the matter first came on for hearing on 12 October 2016, the applicant argued that the Tribunal erred by failing to take evidence from his proposed witness.  As that matter had not been clearly raised in the application, the matter was adjourned and the parties were ordered to file written submissions.  Only the Minister has filed written submissions in connection with that issue.

11. Today the applicant, who appeared for himself, explained that the second ground in the application, namely ignoring relevant material, related to the fact that the Tribunal did not accept the evidence of his witness and did not allow him to give full evidence.  The first of those submissions does not raise any jurisdictional error, but rather raises only a contention that the Tribunal should have made a different finding of fact.  That is not a question within the power of the Court to determine.

12. The second matter raised today is the same as the argument raised at the first hearing and I will deal with that. The ability of a review applicant to request the Tribunal to take evidence from a witness other than himself or herself is dealt with in s.426 of the Act, which I set out below:

    Applicant may request Tribunal to call witnesses

    (1)  In the notice under section 425A, the Tribunal must notify the applicant:

    (a)  that he or she is invited to appear before the Tribunal to give evidence; and

(b)  of the effect of subsection (2) of this section.

(2)  The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3)  If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

(Emphasis in original)

1. Two things may be noted on the facts of this case: first is that the applicant did not, in accordance with s.426(2) of the Act, give the Tribunal written notice that the applicant wanted the Tribunal to obtain oral evidence from a person or persons named in the notice.

2. The second, is that although the applicant did not give such notice in accordance with s.426(2) of the Act, the Tribunal nevertheless did consider the applicant’s expressed desire for it to obtain oral evidence. Indeed, according to the material before the Court, the Tribunal did attempt to obtain such evidence. The fact that it was not able to do so was brought about by the fact that at no time prior to the hearing did the applicant or his agent indicate to the Tribunal that any interpreter was required.

3. The applicant today in oral evidence, sought to explain that in fact there was no interpreter required because his proposed witness spoke reasonably good English.  However, because the telephone lines at the hearing did not work properly, the witness requested that there be an interpreter.  There is no evidence to support that assertion.  However, even if it were true, it would not lead to any different result.  .  First, the Tribunal did consider the applicant’s wish to obtain evidence; and secondly, the witness did in fact, give evidence.  The witness gave evidence not orally but by way of written statement.

4. There is nothing to suggest that had the witness given oral evidence at the hearing through an interpreter, he would have said anything different to that contained in the written statement.  For that reason, the way in which the Tribunal conducted its review in respect of the witness put forward by the applicant was neither unreasonable nor unfair, and I can see that no jurisdictional error arose because of it.

Conclusion

1. For those reasons there is no jurisdictional error in the Tribunal’s decision, and the application must be dismissed. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  28 August 2017