ATP15 v Minister for Immigration
[2015] FCCA 2289
•24 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATP15 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2289 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to put adverse information to the applicant – whether the Tribunal failed to particularise adverse information put to the applicant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.418, 423, 424A, 476 |
| Minister for Immigration & Citizenship v SZRKT (2012) FCR 99 |
| First Applicant: | ATP15 |
| Second Applicant: | ATQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1336 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 24 August 2015 |
| Date of Last Submission: | 24 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2015 |
REPRESENTATION
| Counsel for the Applicants: | Mr R Chia |
| Counsel for the First Respondent: | Mr M J Smith |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
ORDERS
The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The further amended application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the amount of $5800
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1336 of 2015
| ATP15 |
First Applicant
| ATQ15 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) for a Constitutional writ in respect of a decision of the Tribunal made on 21 April 2015 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa. The applicant was found to be a citizen of Pakistan, and his claims were assessed against that country. The further amended application identifies the following two grounds:
1. The second respondent (“Tribunal”) failed to have regard to a relevant consideration.
information that it had invited a person to give to it under section424 of the Migration Act 1958 (“Act”).Particulars
By letter dated 20 March 2015, the Tribunal invited a person to give information to it regarding the applicant.
By letter dated 3 April 2015, that person gave the Tribunal information to which the Tribunal did not have regard in making the decision on the review.
2. Further or in the alternative to 1, the Tribunal failed to comply with the mandatory requirements of section 424A of the Act.
Particulars
By letter dated 19 March 2015, the Tribunal purported to invite the applicant to comment on or respond to information pursuant to section 424A of the Migration Act 1958 (“Act”).
The Tribunal did not give the applicant clear particulars of the information in accordance with subsection 424A(l) of the Act.
I note there was a third ground, which was not pressed by counsel for the applicant. In relation to the first ground, the essence of the argument that was developed was that there was a related application involving another person in respect of whom there was a letter sent by the Tribunal in purported compliance with the obligations under s.424A . The contention was that response by the applicant in that other case constituted information to which the Tribunal was required to have regard to under s.424. The applicant’s counsel accepted that it was not the letter of 20 March 2015 that was relied upon as giving rise to an alleged breach of s.424. Rather it was the response to the letter of 20 March 2015 set out in the letter of 3 April which it was said was potentially corroborative of the applicant’s credibility and the applicant’s claims in the present case.
It was common ground that neither the letter of 20 March 2015 nor the letter of 3 April 2015 were actually in evidence before the Tribunal. Mr Chia, counsel for the applicant, carefully identified the ways in which information might be obtained and put before the Tribunal in respect of the scheme of the Act by reference to ss.418, 423 and 425. Mr Chia of counsel identified that the content of the letter of 20 March 2015 replicated in identical terms three dot points in the letter sent to the applicant in these proceedings dated 19 March 2015 at Court book, 163.
Mr Chia of counsel noted that the decisions were delivered in this matter and the other related matter with only a short space of time between the two decisions, being some 20 minutes or so. Mr Chia sought to argue that it should be inferred that the Tribunal must have had before it in these proceedings the letter of 20 March 2015 and reply of 3 April 2015 from the other related proceedings or alternatively that it was so clearly relevant that the Tribunal should have obtained that information.
I do not accept that there is any basis upon which the inference should be drawn that the Tribunal had regard to the letter of 20 March 2015 or the reply dated 3 April 2015 in the conduct of the review the subject of these proceedings. Mr Chia of counsel identified that the kernel of his criticism was not the letter of 20 March 2015 itself, but rather it was the reply dated 3 April 2015 to the letter of 20 March. The letter at 163 to 164, dated 19 March, identified particulars of the information provided as follows:
·You arrived in Australia on 6 July 2013 and you entered Australia at 06.49.25.
·You gave a residential address and a postal address of [XX], on your Protection visa application.
·Your Protection visa application was lodged with the assistance of your migration agent, Mr Sivalohan Lohitharajah, on 20 August 2013.
·When you attended a hearing at the Refugee Review Tribunal on 9 March 2013 you told the Tribunal that your travelled to Australia alone.
·At the Tribunal hearing you were asked who lived at the residential address at [XX] you named your sister in law, brother in law, their four children and yourself, you husband and son.
·Evidence before the Tribunal indicates that Mrs [B], who has also given the address of [XX], also entered Australia on 6 July 2013 at 06.49.25. Mrs [B] has also lodged an application for a Protection visa with the assistance of Mr Sivalohan Lohitharajah on 20 August 2013.
·The statement provided with the application for a Protection visa made by Mrs [B] is in a very similar format to your statement provided with your application and you have both made similar claims to fear harm from the Taliban in Pakistan.
·When you were asked about Mrs [B] during the Tribunal hearing you indicated that she was someone in your community who you call “aunty”, but you later stated that Mrs [B] is your sister in law’s mother in law. You stated that she does not live with you all the time and lives in Canberra sometimes.
·Mrs [B] told the Tribunal that she lives in Canberra and that you telephoned her after the hearing and told her that she had applied for protection in Australia and she was very upset by this.
·When Mrs [B] was asked, at the Tribunal hearing that she attended on 16 March 2015, for the name of the person in Canberra who she stays with and the suburb in Canberra where that person lives, Mrs [B] was only able to say her first name and stated that she does not know her second name and she does not know the name of the suburb in Canberra.
The content of the letter of 20 March 2015 to the applicant in the other proceedings provided particulars of the information as follows:
• You arrived in Australia on 6 July 2013 and you entered Australia at 06.49.25.
• You gave a residential address and a postal address of [XX]on your Protection visa application.
• Your Protection visa application was lodged with the assistance of your migration agent, Mr Sivalohan Lohitbarajah, on 20 August 2013.
• Evidence before the Tribunal indicates that Mrs [ATP15] who has also given the address of [XX], also entered Australia on 6 July 2013 at 06.49.25. Mrs [ATP15] has also lodged an application for a Protection visa with the assistance of Mr Sivalohan Lohitharajah on 20 August 2013.
• When Mrs [ATP15] attended a hearing at the Refugee Review Tribunal on 9 March 2013 she told the Tribunal that she travelled to Australia alone.
• The statement provided with the application for a Protection visa made by Mrs [ATP15] is in a very similar format to your statement provided with your application and you have both made similar claims to fear harm from the Taliban in Pakistan.
• When Mrs [ATP15] was asked about you during the Tribunal hearing she attended on 9 March 2013 she indicated that you are someone in your community who she calls “aunty"” and it was only later that she then said that you are her sister in law's mother in law. She stated that you do not live with her all the time and you live in Canberra sometimes.
• When you were asked, at the Tribunal hearing that you attended on 16 March 2015, for the name of the person in Canberra who you stay with and the suburb in Canberra where that person lives, you were only able to say her first name and you said you do not know her second name and you do not know ti1e name of the suburb in Canberra.
• Mrs [ATP15] told the Tribunal during the hearing that you previously lived with your brother in [Z] because you cannot stay in [A] alone.
Mr Chia of counsel identified what he said was the identical information from which he sought to draw the inference that the Tribunal in the present case had obtained information within the meaning of s.424, which enlivened the obligation to have regard to that information. I do not accept that that inference should be drawn.
Moreover, it was clear from the particulars provided that it was the applicant’s response which the Tribunal was concerned to evaluate, and I can see no reason why the Tribunal should have regarded a letter sent in accordance with the statutory procedural fairness requirements in another matter concerning a different applicant should be considered relevant. The different review applicant’s response to that procedural requirement letter in the other proceedings was not relevant. Nor is this a case where there is any proper basis to find that the response in the different review was itself taken into account by this Tribunal.
I accept Mr Chia’s proposition that when one looks at the letter of 3 April 2015, one might be argued to be corroborative of evidence of the applicant in this case. The possibility of corroborative evidence does not of itself give rise to an inference that the Tribunal should have considered the response to be relevant in other proceedings involving a different applicant. Even if contrary to the finding that I have made that the letter dated 3 April 2015 was not information that was obtained by the Tribunal, it would not follow that the inference could be drawn that no regard was had to the document. It is for the applicant to establish a breach of s.424 and I can see no reason why, if contrary to the finding I have made, the material was before the Tribunal an inference should be drawn that regard was not had to it.
Mr Chia of Counsel sought to advance that the reasoning of the Tribunal in the present case was a global rejection of the first applicant’s evidence of a kind identified by Robertson J in Minister for Immigration & Citizenship v SZRKT (2012) FCR 99 at [199]. I do not accept that the Tribunal’s rejection of the first applicant’s claims was founded on such a general approach. The Tribunal identified a concern with the first applicant’s credit in relation to fabricating evidence about a particular topic. That was a nuanced approach and it is clear that the Tribunal dealt with the claims of the first applicant. I do not regard the passage identified in SZRKT as assisting the applicants in the present case.
As the letter of 3 April 2015 was not, in the findings I have made, before the Tribunal and I cannot see how it can give rise to give any constructive failure to exercise the Tribunal’s jurisdiction. Accordingly, ground 1 does not make out any jurisdictional error.
In relation to ground 2, Mr Chia of Counsel sought to advance that the following dot point was not clear particulars. :
• The statement provided with the application for a Protection visa made by Mrs [ATP15] is in a very similar format to your statement provided with your application and you have both made similar claims to fear harm from the Taliban in Pakistan.
Mr Chia of counsel argued that that particular failed to give adequate elaboration around the meaning of “similar”. In my opinion, the relevant particular when the letter is read as a whole gave clear particulars in compliance with the statutory obligation under s.424A.
Further, in my opinion, the relevant particular clearly gave a meaningful opportunity for the applicant to respond to the information identified. I reject the proposition that it was necessary for the Tribunal to provide the statement or to set out greater specificity concerning the similarity and I find that the letter constituted clear particulars of the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. Ground 2 is not made out.
I dismiss the further amended application.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 27 August 2015
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