ARY16 v Minister for Immigration - [2018] FCCA 1226

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARY16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1226

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – no submissions made regarding the grounds of the substantive application – no jurisdictional error revealed by the grounds of the application – application dismissed.

PRACTICE & PROCEDURE – Leave sought to amend substantive application whether there was such merit in the proposed ground to warrant leave to amend in the interests of justice – no such merit in the proposed ground – leave to amend refused.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

Applicant:

ARY16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 728 of 2016

Judgment of:

Judge Nicholls

Hearing date:

8 March 2018

Date of Last Submission:

8 March 2018

Delivered at:

Sydney

Delivered on:

18 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser by direct access

Solicitors for the Respondents:

Ms E Cheesman of Clayton Utz

ORDERS

The application made on 8 March 2016 to amend the substantive application is refused.
The application made on 30 March 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 728 of 2016

ARY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 30 March 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 March 2016 which affirmed the decision of the delegate of the Minister (“the delegate”) to refuse a protection visa to the applicant.
The evidence before the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1226
Decision Date: 18 May 2018

CaseChat Overview and Summary

This matter came before Judge Nicholls of the Federal Court of Australia concerning an application for review of a decision made by the Administrative Appeals Tribunal. The applicant sought to challenge the Tribunal's decision, but made no submissions regarding the grounds of the substantive application. The applicant also sought leave to amend their substantive application to introduce a new ground.

The primary legal issues before the Court were whether the grounds of the substantive application revealed any jurisdictional error, and whether there was sufficient merit in the proposed amended ground to warrant granting leave to amend in the interests of justice. The Court was required to consider whether the applicant's claims, as presented and as proposed to be amended, clearly arose from the materials before the Tribunal.

In dismissing the application, the Court applied the principles established in cases such as *NABE (No 2)* and *Dranichnikov*, which require that a claim must be substantial, clearly articulated, and rely upon established facts to be considered by a tribunal. The Court found that the applicant's proposed ground, relating to the "Emigration Ordinance Act 1982 (Bangladesh)" and the use of a false passport, did not clearly emerge from the materials before the Tribunal. The reference to the false passport was made in the context of explaining how the applicant left Bangladesh, not as a basis for fearing persecution upon return. Consequently, the Court concluded that there was no merit in the proposed ground, and therefore refused leave to amend the substantive application. The Court also noted that no factual error, as had occurred in *NABE (No 2)*, was submitted in this case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As was made clear in NABE (No 2) (at [68]): “Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.”[Emphasis added.] I should note that there was no submission in the current case of any such factual error as found in NABE (No 2). In any event, the applicant’s “claim” as described now, does not clearly arise from the materials before the Tribunal. There was no reference whatsoever by the applicant, his adviser or elsewhere in the materials before the Tribunal, to any reference to the “Emigration Ordinance Act 1982 (Bangladesh)”. The reference to the false passport contained in the materials before the Tribunal is set out at Court Book page 22. The context in which it is raised makes clear the lack of merit in the applicant’s proposed ground. The document at Court Book page 22 is part of the application form lodged by the applicant for the protection visa. Question 52 of that form asks, “[h]ow did you leave?” [it is, in context, with reference to the country of claimed persecution]. The applicant’s answer was, “[h]older of a false passport arranged by smuggler” (CB 22.5). There is nothing here, or anywhere else in the presentation of the applicant’s claims, to say that the applicant ever contended that he feared harm for the particular reason of having left Bangladesh on a false passport. Further, and of relevance to the applicant’s proposed ground, there is nothing in the material to even indicate that to have been the case (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [45]). In this light, I note that the same application form asked the specific questions as to why the applicant left the country of claimed persecution, and what he thinks would happen to him on return to that country (CB 19 to CB 20).

Ratio Decidendi

Legal Principle Established

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