AWA15 v Minister for Immigration

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FEDERAL COURT OF AUSTRALIA

AWA15 v Minister for Immigration and Border Protection [2018] FCA 604

Appeal from: AWA15 v Minister for Immigration & Anor [2017] FCCA 391
File number: NSD 747 of 2017
Judge: CHARLESWORTH J
Date of judgment: 4 May 2018
Catchwords: MIGRATION – proceedings before administrative tribunal – whether visa applicant denied opportunity to give evidence in English – whether Tribunal’s rejection of corroborative evidence affected by legal unreasonableness – whether Tribunal committed jurisdictional error by refusing request to obtain corroborative oral evidence by telephone – reasons for refusing request having no intelligible foundation – ultimate exercise of statutory function not affected in circumstances of case – error not jurisdictional
Legislation: Migration Act 1958 (Cth) ss 36, 65, 361, 414, 425A, 426, 427, 429A, 474
Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

AWA15 v Minister for Immigration & Anor [2017] FCCA 391

BTF15 v Minister for Immigration and Border Protection [2016] FCA 647, (2016) 69 AAR 376

Butera v Director of Public Prosecutions (Vict) (1987) 164 CLR 180

CZBH v Minister for Immigration and Border Protection [2014] FCA 1023

Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15

Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485

Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1

VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
Date of hearing: 20 November 2017
Date of last submissions: 1 February 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 68
Counsel for the Appellant: The Appellant appeared in person
Counsel for the First Respondent: Mr Cleary
Solicitor for the First Respondent: DLA Piper Australia
Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice

ORDERS

NSD 747 of 2017
BETWEEN:

AWA15

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

4 MAY 2018

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

CHARLESWORTH J:

  1. This is an appeal from a judgment of the Federal Circuit Court of Australia:  AWA15 v Minister for Immigration & Anor [2017] FCCA 391. The primary judge dismissed an application for…

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Details
Case
[2018] FCA 604
Decision Date

CaseChat Overview and Summary

In the case of AWA15 v Minister for Immigration, the applicant, AWA15, appealed against a decision of the Refugee Review Tribunal (the Tribunal) to affirm the decision of the delegate to cancel his visa. The Tribunal had rejected the applicant's request to obtain oral evidence from his brother by telephone. The primary issue before the court was whether the Tribunal's rejection of the applicant's request was affected by legal unreasonableness or whether the Tribunal had committed a jurisdictional error by refusing the request without a justifiable foundation.

The court found that the Tribunal had an obligation to have regard to the applicant's wishes under s 426(3) of the Act, but it was not required to obtain evidence from the named person. The court also found that the Tribunal did not commit a jurisdictional error by refusing the request as the reasons for the refusal had an intelligible foundation. The court held that the exercise of the Tribunal's statutory function was not affected in the circumstances of the case, and the error, if any, was not jurisdictional.

The court further found that there was no breach of the rules of procedural fairness as the applicant had not been denied the opportunity to give evidence in English. The court also found that the Tribunal's rejection of the corroborative evidence did not affect the outcome of the case.

The appeal was dismissed, and the decision of the Tribunal was affirmed. The court made no further orders.

Orders

Orders of the court

1. The appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

No breach of the rules of procedural fairness of the kind complained of is established by the transcript. Accordingly, this ground of appeal must fail.THE ORAL EVIDENCE ISSUE As already mentioned, the appellant received a notice inviting him to appear before the Tribunal: see s 425A of the Act. The requirements for such an invitation are set out in s 426. It provides:426 Applicant may request Refugee Review 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. The Tribunal has the power to take evidence on oath or affirmation: s 427. Oral evidence may be taken by telephone, closed-circuit television or any other means of communication: s 429A. Within the time frame specified in s 426(2), the appellant gave the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from his brother, Mr S. His response was given on a form provided by the Tribunal for that purpose. A telephone number for Mr S was provided. Where prompted by the form to describe the evidence his brother would give, the appellant wrote “He knows my situation”. A review applicant is not obliged to state the means by which a witness should be permitted to give oral evidence. The mere provision of a telephone number for Mr S where indicated on the form ought not to be regarded by the Tribunal as a request that evidence be taken by that particular means. However, argument on this appeal proceeded on the basis that the appellant wanted Mr S to give oral evidence by telephone and his grounds of appeal are so confined. The Tribunal was obliged to have regard to the appellant’s wishes but was not otherwise obliged to obtain evidence (whether orally or otherwise) from Mr S: s 426(3) of the Act. Whilst the Tribunal has an obligation to give written reasons for its substantive decision on its review of the delegate’s decision, there is no obligation to give written reasons for refusing to grant a request made pursuant to s 426(2) of the Act. The written reasons for the Tribunal’s affirmation of the delegate’s decision do not illuminate its reasons for declining the request. However, toward the end of the hearing, the Tribunal gave oral reasons for declining the request, expressed as follows:TRIBUNAL MEMBER: Okay. Now, you asked me to telephone someone ⸺ you asked me to telephone someone during the hearing.THE INTERPRETER: My brother in Pakistan.TRIBUNAL MEMBER: Okay. Well, I probably don’t think ⸺ I don’t think I’m going to do that. I don’t normally ⸺ I don’t know who I’m speaking to. I don’t think it’s going to be much use for me to speak to that person. He can provide a ⸺ would you like to provide a statement from him ⸺ your brother?APPELLANT: Okay.TRIBUNAL MEMBER: You can do that if you like. It’s up to you.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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