AMU16 v Minister for Immigration

[2016] FCCA 2142

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMU16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2142

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to comply with the requirements of the legislation – whether the Tribunal failed to constructively exercise its jurisdiction – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.7A, 36, 424A, 476

Acts Interpretation Act 1901 (Cth), s.2C

Cases cited:

AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424
SZRDX v Minister for Immigration and Citizenship [2012] FMCA 838
SZVCH v Minister for Immigration & Anor [2015] FCCA 2950
SZQTJ v Minister for Immigration and Border Protection& Anor [2015] FCCA 3226

Applicant: AMU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 508 of 2016

Judgment of: Judge Street

Hearing date: 18 August 2016

Date of Last Submission: 18 August 2016

Delivered at: Sydney

Delivered on: 18 August 2016

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Immigration Lawyers

Counsel for the First Respondent: Mr B Kaplan

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6,535.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 508 of 2016

AMU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 12 February 2016, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against the country. The applicant claimed to fear harm from the supporters of the BNP in Bangladesh by reason of his and his father’s involvement with the Awami League.

3. The applicant arrived in Australia on 21 July 2005 as the holder of a subclass 456 Business visa which was valid until 1 September 2005. On 29 August 2005, the applicant was granted a bridging visa in association with his first application for a protection visa. The applicant was subsequently issued with a further bridging visa that expired on 24 October 2008. The applicant thereafter remained in Australia unlawfully until 20 May 2009. On 21 May 2009, the applicant was issued with a further bridging visa. The applicant was thereafter issued with two further bridging visas, the last of which expired on 23 July 2009. The applicant remained in Australia as an unlawful non-citizen until 2 April 2014. On 3 April 2014, the applicant was issued with a bridging visa in association with his second application for a protection visa.

4. The applicant had lodged his first application for a protection visa on 29 August 2005. The Department refused that application on 7 September 2005.  The applicant applied for review before the Refugee Review Tribunal (“the RRT”), which affirmed the Department’s decision on 6 December 2005. The applicant then applied to the then-named Federal Magistrates Court for judicial review. On 26 April 2006, the matter was remitted to the RRT. On 25 July 2006, a differently constituted RRT affirmed the decision of the Department. Between 2 November 2006 and 6 December 2007, the Federal Magistrates Court, the Full Court of the Federal Court, and the High Court upheld the decision to refuse the applicant a protection visa. The applicant also made a number of requests for Ministerial Intervention. 

5. On 24 March 2014, the applicant lodged a second application for a protection visa on the grounds of complementary protection under s.36(2)(aa) of the Act. On 9 September 2014, the delegate refused the applicant’s second application for protection. The delegate was not satisfied that there were substantial grounds for believing that as a necessary or foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that the applicant would suffer significant harm. The delegate found that the criterion under s.36(2)(aa) of the Act was not satisfied.

6. The applicant applied for review of the delegate’s decision by the Administrative Appeals Tribunal (“AAT”) on 3 October 2014. By letter dated 1 December 2015, the applicant was invited to attend a Tribunal hearing on 11 February 2016. Prior to the Tribunal hearing, the applicant’s migration agent provided material in relation to the applicant’s alleged membership of the Awami League. The applicant appeared before the Tribunal on the hearing date to give evidence and present arguments. The applicant was assisted at the hearing by his migration representative.

7. The Tribunal correctly identified that the applicant’s second protection visa application was to be assessed on the grounds of complementary protection under s.36(2)(aa) of the Act. The Tribunal identified the relevant law in relation to complementary protection and identified the applicant’s claims and evidence.

8. The Tribunal made adverse credit findings in relation to the applicant and found that the applicant was not a witness of the truth. The Tribunal found that the applicant fabricated his material claims for the purpose of obtaining a protection visa. The Tribunal found the applicant was not a credible witness.

9. The Tribunal accepted that the applicant supported the Awami League. The Tribunal further accepted that when the applicant completed his Senior School Certificate, he was given a certificate by the Awami League. However, the Tribunal did not accept that the applicant became a member of the student wing of the Awami League or the Awami League in Bangladesh. Nor did the Tribunal accept that the applicant was appointed as a Social Welfare and Public Relations secretary or, alternatively, as a social worker in the Awami League.

10. The Tribunal rejected the entirety of the applicant’s claims in relation to his involvement with the Awami League in Bangladesh and rejected his assertion of experiencing problems with supporters or members of the BNP. Further, the Tribunal did not accept that the applicant was involved in the Awami League when he lived in Dubai. The Tribunal noted that the applicant returned from Dubai to Bangladesh in 2002 and 2005, and that on both occasions, the applicant stayed in Bangladesh for almost 10 weeks.

11. The Tribunal noted the letters provided by the applicant in support of his involvement with the Awami League in Australia and gave its reasons for why it placed no weight on those documents. The Tribunal did not accept that the applicant became a member of the Awami League in Australia in 2005 or 2006. The Tribunal found that the applicant became a member of the Awami League after he lodged his second protection visa application, for the purpose of enhancing his prospects of success in that application.

12. The Tribunal did not accept that the applicant faced harm from members of the BNP in Bangladesh, or that he, was or is, of adverse interest to the BNP. The Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm from the BNP if he returned to Bangladesh. The Tribunal considered the applicant’s claims individually and cumulatively and was not satisfied that there were substantial grounds for believing that as a necessary or foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk the applicant would suffer significant harm as defined in s.36(2A) of the Act. The Tribunal found that the applicant did not meet the complementary protection criterion under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

13. The grounds of the application are as follows:

    1. The Tribunal failed to comply with the requirements of ss424A or 424AA of the Migration Act 1958.

    Particulars

    The Tribunal failed to comply with all of the requirements of ss424A or 424AA in respect of information that it considered would be the reason or part of the reason for affirming the decision under review.

    2. The Tribunal erred by failing to consider whether Australia had protection obligations under the Refugees Convention and Protocol in respect of the Applicant.

    Particulars

    (a) The Applicant had previously been refused a protection visa under s36(2)(a) of the Migration Act 1958. The Applicant then lodged a new application for a protection visa relying on s36(2)(aa). The Tribunal held that it was precluded from considering the grounds in s36(2)(a), and did not do so in relation to application for a Protection Visa. The Tribunal misinterpreted s48A, which operates only to determine whether an application for a protection visa is valid, not what the Tribunal may and may not consider when making its determination.

    (b) The Tribunal was required to review the decision of the delegate. The delegate had considered the application under s36(2)(a). By failing to consider the application under that section, the Tribunal failed to exercise its jurisdiction to review the decision.

14. The transcript of the Tribunal hearing was tendered by the applicant. On the face of the transcript, it is apparent that the Tribunal explored with the applicant his knowledge of the Awami League and his involvement with it. It is also apparent from the transcript that the Tribunal put the applicant on notice of the various concerns it had in relation to the applicant’s evidence. Specifically, the transcript discloses that the Tribunal put the applicant on notice of his inability to provide a correct answer in relation to fundamental principles of the Awami League and its subsequent impact on the applicant’s credibility.  The applicant was asked by the Tribunal, “Do you want to comment on that?”, to which the applicant responded, “No”. It is apparent from the transcript that the applicant was given an opportunity to respond to the credibility concerns raised by the Tribunal, but he declined to do so. The applicant merely maintained that he was a genuine supporter of the Awami League. 

15. Section 424A of the Act is as follows:

    (1) Subject to subsections (2A) and (3), the Tribunal must:

    (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c) invite the applicant to comment on or respond to it.

    (2) The information and invitation must be given to the applicant:

    (a) except where paragraph (b) applies--by one of the methods specified in section 441A; or

    (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

    (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

    (3) This section does not apply to information:

    (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b) that the applicant gave for the purpose of the application for review; or

    (ba) 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; or

    (c) that is non-disclosable information.

    (4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

16. It is apparent from the Tribunal’s reasons that the Tribunal referred to the Constitution of the Awami League (“the Constitution”) and noted that the applicant’s evidence in relation to his age of membership, payment fee for a membership, and the duration of his membership were inconsistent with the content of the Constitution.

17. Mr Jones, the solicitor for the applicant, contended that the Constitution is information enlivening the Tribunal’s obligation under s.424A of the Act. Mr Jones submitted that the Constitution was used by the Tribunal to undermine, negate or reject the applicant’s evidence in relation to his membership of the Awami League.

18. It is apparent from the Tribunal’s reasons and the transcript of the Tribunal hearing that there was a combination of reasons as to why the Tribunal rejected the applicant’s evidence in relation to his alleged membership of the Awami League. Whether there is information that enlivens an obligation under s.424A of the Act is not determined by reference to the reasons of the Tribunal. Whether the Tribunal’s obligation under s.424A of the Act is enlivened turns on whether the information would of itself, be information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. The Constitution is not information that falls within these categories. I reject the applicant’s submission that taking into account the Constitution enlivened any obligation on the part of the Tribunal under s424A.

19. Even if the Constitution did fall within s.424A of the Act, counsel for the first respondent submitted that it fell within the exception under s.424A(3)(a) of the Act.

20. Mr Jones submitted that the words “another person” in s.424A(3)(a) of the Act were capable of being read as referring to a corporate or political entity and should not be constrained to the meaning of an individual person. Mr Jones drew the Court’s attention s.2C of the Acts Interpretation Act 1901 (Cth) and submitted that s.424A(3) was a provision restricting common law rights which should, in effect, be strictly construed.

21. Mr Jones properly drew the Court’s attention to the decision of Judge Cameron in this Court in SZRDX v Minister for Immigration and Citizenship [2012] FMCA 838, which supported the proposition that the meaning of “another person” in s.424A of the Act meant another individual person.

22. Part 7A of the Act, and the references to “an applicant” contained within that part, support the construction of the words “another person” in s.424A to mean an individual person. The reference to the words “another person” in s.424A(3)(a) of the Act expresses a contrary intention to that found in s.2C of the Acts Interpretation Act 1901 and is concerned with a natural person. 

23. The decision in SZRDX supra is, in my opinion, correct in relation to the construction of that phrase in s.424A of the Act. Accordingly, I reject the applicant’s submission that the Awami League should be construed as “another person” under s.424A(3)(a) of the Act. In the circumstances, the applicant’s contention that the Constitution was information specifically about the Awami League as a “person”, which does not fall within the exception under s.424A(3)(a) of the Act, is not made out.

24. Mr Jones also submitted that the information in the present case about the age of membership, the payment fee for membership, and the duration of membership was not information that came within the meaning of being “just about a class of persons”. Mr Jones contended that the information about the membership requirements were not something that fell within the scope of the words “just about”. Whilst Mr Jones resisted this proposition, the effect of his construction was to read the words “just about” as meaning “solely about”. That is a construction that is not supported by the plain and ordinary meaning of s.424A(3).

25. I accept the submission of the first respondent that the statutory language in s.424A(3)(a) of the Act must be read as a whole in its context. The conjunction in s.424A(3)(a) of the Act is also important in understanding the focus of the information to which s.424A does not apply. In the present case, the Constitution, and in particular, the matters concerning the age of membership, payment, and duration are not “specifically about the applicant or another person”. The Constitution is, in my opinion, information that meets both limbs of s.424A(3). To contend that the Constitution is not information about a class of persons, of which the applicant or another person is a member, would be to confine the scope of information by reference to a narrow concept of use or purpose. There is no reason to read in any such limitation. Ground 1 fails to make out any jurisdictional error.

26. In relation to ground 2, Mr Jones submitted that the Tribunal should have addressed afresh the issue of whether the applicant met the criterion under s.36(2)(a) of the Act. Mr Jones submitted that the decision of Judge Driver in SZVCH v Minister for Immigration & Anor [2015] FCCA 2950 was correct. Mr Jones submitted that an appeal of that matter is currently pending in the Full Court of the Federal Court of Australia. Mr Jones submitted that this matter should be adjourned pending the outcome of that appeal.

27. This Court can see no utility in adjourning the matter pending the outcome of the appeal in SZVCH. This Court is clearly satisfied that the decision of Judge Driver in SZVCH was wrong and has held so earlier in SZQTJ v Minister for Immigration and Border Protection& Anor [2015] FCCA 3226 at [16].

28. The Court accepts the submissions of the first respondent that there is no utility in granting an adjournment in the circumstances of the present case, as it would only unnecessarily add to the costs of the parties and utilise limited Court time. Further, the decision of Judge Driver in SZVCH has not been followed and is inconsistent with the decision of the learned Markovic J in AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 at [42] to [44]. That is a decision that is binding on this Court. I am of the opinion that the above decision in SZQTJ was correctly decided and this provides a further reason as to why there would be no utility in adjourning the matter. The Tribunal was correct to address only the complementary protection criterion under s.36(2)(aa) of the Act.

29. I reject the applicant’s submission that because the delegate in the present case had assessed the applicant’s claims against the Refugees Convention criterion pursuant to s.36(2)(a) of the Act, the Tribunal was obliged to do the same. The Tribunal correctly confined itself to assess the applicant’s claims against the complementary protection criterion under s.36(2)(aa) of the Act. Ground 2 fails to make out any jurisdictional error.

30. The application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 14 September 2016