AXX16 v Minister for Immigration - [2018] FCCA 2902

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXX16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2902

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – application to amend the grounds of the application – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth) – proposed ground does not have sufficient merit – leave to amend refused – grounds in the original application not pressed – application dismissed.

Legislation:

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

Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415

SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3;

(2015) 229 FCR 90; (2015) 318 ALR 450

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26;

(2007) 81 ALJR 1190; (2007) 235 ALR 609

SZIDR v Minister for Immigration & Anor [2007] FMCA 1653

SZTNL v Minister for Immigration and Border Protection [2015] FCA 463

Applicant:

AXX16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 967 of 2016

Judgment of:

Judge Nicholls

Hearing date:

9 March 2018

Date of Last Submission:

13 March 2018

Delivered at:

Sydney

Delivered on:

15 October 2018

REPRESENTATION

Counsel for the Applicant:

P Bodisco

Solicitors for the Applicant:

Australian Business Underwriter

Solicitors for the Respondents:

J Hutton of Australian Government Solicitor

ORDERS

Leave to amend the application is refused.
The application made on 21 April 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 967 of 2016

AXX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application to amend the grounds of an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 21 April 2016 which seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 1 April 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
The evidence before the Court is as follows:
a)The affidavit of Winnie David, made on 1 March 2018 annexing a transcript (“T”) of the hearing before the Tribunal (no objections).
b)The affidavit of Abu Siddque, made on 7 March 2018 (no objections).
c)A bundle of relevant documents, filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

Before the Court

The parties first appeared before a Registrar of the Court on 9 June 2016. The applicant did not have any legal representation at that time. Orders were made for the progress of the matter, including that the applicant file any amended application and evidence by way of affidavit by 22 July 2016. The applicant did not file any documents pursuant to these orders.
The parties next appeared before a Registrar of the Court on 6 October 2016. The applicant remained without any legal representation. Orders were made setting the matter down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) on 9 March 2018, and for the filing of written submissions by the applicant and the Minister 14 days and 7 days before the hearing respectively.
On 1 March 2018, just over one week before the scheduled show cause hearing, the applicant filed a Notice of Address for Service indicating that he had obtained legal representation. He also filed a written outline of submissions and a proposed amended application on this date. The matter was listed for directions on 6 March 2018 as a consequence.
At directions, the applicant was represented by counsel and the Minister was represented by a solicitor. The applicant sought leave to rely on the amended application. The Minister’s representative initially indicated that he did not oppose that the applicant have leave to rely on the proposed amended application. However, the Minister ultimately opposed the leave on the basis that the proposed ground did not have merit.
Orders were made which, amongst other things, set down the application for leave to amend for hearing on 9 March 2018, that the applicant file evidence by way of affidavit in support of his application to amend by 7 March 2018, and that the Minister file written submissions in relation to the application to amend, and the substantive application, by 8 March 2018. The Minister filed written submissions on 8 March 2018 (“the Minister’s first written submissions”).
At the hearing, the applicant was represented by counsel (different to counsel who appeared at directions) and the Minister was represented by a solicitor. It was confirmed that although the matter had originally been listed for a show cause hearing pursuant to r.44.12 of the FCC Rules, the Court would proceed by first hearing the application for leave to amend, and if granted, would proceed to consider the matter on that basis. The applicant confirmed that he was abandoning the grounds in the original application made on 21 April 2016, so if leave to amend were to be refused, the Court was not required to consider those grounds.

Background

The applicant is a citizen of Bangladesh (CB 30). He arrived in Australia on 28 March 2013 as an “unauthorised maritime arrival” (CB 31). He applied for a protection visa which was received by the Minister’s department on 1 July 2013 (CB 18 to CB 83).
The applicant claimed to fear harm from relatives (his paternal uncle and cousin) who were “powerful” members of the Awami League (“AL”) ([1.3] at CB 90). He claimed to have been involved in a “land dispute” with these relatives over his paternal grandmother’s property, and that he had an imputed political opinion due to his father’s affiliation with Jamat-e-Islami (JI) ([1.3] at CB 90).
He claimed to have been threatened by his uncle and cousin over the land dispute, and that on his way to reporting these threats to the police, he was attacked by a group of men, sustaining serious injuries as a result. The applicant claimed that he believed his cousin had organised the attack (CB 66 to CB 69, and see [1.5] at CB 90). He went into hiding after being released from hospital for several months and then later went to Thailand and Malaysia before coming to Australia ([27] at CB 68 to CB 69).
The applicant claimed that if he were to return to Bangladesh and his cousin found out, and/or if he were to pursue his claim to his grandmother’s property, his cousin would kill him ([30] at CB 69). He claimed that the authorities would not be able to protect him due to his cousin’s connections to the AL ([31] at CB 69).
The applicant attended an interview with the delegate on 20 August 2014 (CB 110.8). The delegate refused the protection visa on 22 September 2014 (CB 105 to CB 125). He applied for review to the Tribunal on 1 October 2014 (CB 126 to CB 132). He was invited to, and attended, a hearing before the Tribunal on 13 January 2016 (CB 135 to CB 136 and CB 139 to CB 141).
On 29 January 2016 the Tribunal wrote to the applicant inviting him to comment on, or respond to, “information” pursuant to s.424A of the Act (CB 144 to CB 145). The Tribunal identified the particulars of the information in its letter as (CB 144.5):
“A country information request (CI151222164859994) regarding Awami League membership in Bangladesh located no information on the Awami League and the names Manik Usman [the applicant’s cousin] or Nurul Hajji or Nural Haji [the applicant’s uncle] or the office/s of leader or Chairman in Haruria Village. Sources consulted were CISNET, Twitter and internet sites (including Bangladesh Awami League >
The Tribunal further stated (CB 144.7):
“This information is relevant to the review because it does not support your claims that Manik Usman and Nural Hajji are powerful/influential people in the local Awami League.”
The letter was returned to the Tribunal as unclaimed mail (CB 146). It transpired that the applicant had changed address, and, after providing the relevant details to the Tribunal (see CB 147 to CB 148), the Tribunal sent a letter in the same terms on 25 February 2016 to the applicant at his new address (CB 149 to CB 150). At the request of the applicant’s newly appointed migration agent, the Tribunal granted the applicant further time to provide information in response to its letter (CB 156 to CB 157). A response was provided on behalf of the applicant on 29 March 2016 (CB 158 to CB 171).
The Tribunal affirmed the delegate’s decision on 1 April 2016 (CB 173 to CB 188). It did not find the applicant’s claims to be credible ([90] – [91] at CB 187). Relevantly, it found that the applicant’s uncle and cousin were not powerful or politically connected ([83] at CB 185). Further, that information given by the applicant about their roles in the AL was “vague”, and they had not been able to locate any information to support that the applicant had any relatives who were leaders in the AL ([83] at CB 185 to [84] at CB 185-186). It did not accept the applicant’s claim to have been attacked ([87] at CB 186).
Ultimately the Tribunal determined that the applicant did not meet the relevant criteria for the grant of a protection visa ([96] – [97] at CB 188).

The proposed amended application

As noted above, the applicant sought leave to amend his application on 6 March 2018. At the hearing of the application to amend, the applicant (through the affidavit of his solicitor of 7 March 2018) sought to explain why there was inordinate delay in seeking to amend his application to the Court. In essence, the solicitor received instruction on 10 January 2018 from the applicant. The solicitor then sought a copy of the Tribunal hearing record on 22 January 2018. The solicitor obtained a copy of a transcript of the hearing on 16 February 2018.
The Minister’s submissions in response are as follows ([34] of the Minister’s written submissions of 8 March 2018):
“34. The Minister submits that this does not adequately explain the late filing of the amended application for 4 reasons:
34.1. First, it does not explain why the applicant did not engage legal representation until January 2018 or Counsel until 26 February 2018, when the substantive application was filed on 21 April 2016;
34.2. Second, it does not explain why the applicant’s solicitor only filed a notice of address for service on 1 March 2018, if he was retained in January;
34.3. Third, it does not explain why no attempt was made to contact the representatives for the Minister to make arrangements for the applicant to file an amended application;
34.4. Fourth, the time taken to obtain a transcript does not justify the delay, given that the transcript is not necessary for the ground raised (the same issue referred to in the transcript is found in the Tribunal decision at CB 182 [62] and in the letters at CB 149 to 150 and CB 144 to 145).”
The applicant’s delay from the filing of his original application (21 April 2016) to retaining a solicitor has not been explained before the Court. The steps taken by the solicitor when the solicitor was retained could have been taken at an earlier time and not in the immediate period leading to the hearing (listed on 9 March 2018).
Nor has the solicitor explained, as the Minister submitted, why no attempt was made at an earlier time to contact the Minister solicitor’s to put them on notice of the proposed ground.
I agree with the Minister that no satisfactory explanation for the delay in bringing forward the proposed ground has been provided by the applicant. In any event, leave should be refused because there is no merit in the proposed ground.
The proposed amended application contains a single ground. It is in the following terms:
“The Tribunal breached section 424A of the Migration Act 1958.
Particulars
By failing to put to the Applicant clear particulars of the research conducted by the Administrative Appeals Tribunal’s “research team” as referred to in the transcript at pages 13-14 via the procedures mandated by Section 424A or 424AA of the Act, the Tribunal breached section 424A of the Act.”

Consideration

The applicant’s ground directs attention to T13 to T14, in particular T13 line 42 to T14 line 1 (see below). The background to this is that the applicant had claimed to fear harm because he and his family had been involved in a land dispute with powerful relatives whom he claimed were members of the AL. He claimed his family was the target of harm from the relatives who took land from them, using their positions of influence and power ([29] – [30] at CB 69).
The applicant had named two relatives in particular as the persons from whom he feared harm. The Tribunal questioned him about this at the hearing. It is of assistance to note the entire sequence of questioning in this regard, even though the applicant’s proposed ground draws specific attention only to a small portion (see T11 line 18 to T14 line 28).
“Q. So let's talk a bit about your family. How is your uncle - Usman is his name, yes?
A. Yeah.
Q. Related to your family?
A. INTERPRETER: He is my father's brother.
Q. And who is the elder of the two?
A. INTERPRETER: My father.
Q. So ordinarily, who would your grandmother's property have passed down to in the event of her death?
A. INTERPRETER: After my grandfather die, my grandmother used to live with us in our house and it was supposed to that he would - she will transfer that property in my father's name.
Q. Why was that? Does it not normally pass to the oldest--
A. APPLICANT: ..(Foreign language)..
Q. Sorry. Let me finish. Would it not normally pass to the oldest brother in the family?
A. INTERPRETER: No. It was not in that way. Every brother will have equal portion. My uncle was powerful and it was - like in our local area and he was related in politics. He used to visit with other people, and they doubted that as my grandmother was living with us maybe she will transfer this property to my father too, and for that reason they have doubted this and made my grandmother to control this property..(not transcribable)..
Q. What sort of work does this uncle do?
A. INTERPRETER: He doesn't do any work. He's a political leader, and his son moves around with a pistol openly.
Q. When you say he's a political leader, what do you mean by that?
A. INTERPRETER: He's associated with the local area politics, whatever meetings, and if something happens he is involved there. One of his maternal in-laws, he was a local area chairman from Awami League.
Q. Just a second. You said this uncle is a political leader. What do you mean by that? That was my question, not about the uncle - not about this other person. The uncle, you say he's a political leader. What does that mean?
A. INTERPRETER: His maternal in-law ..(not transcribable).. He is the local area chairman.
A. Awami League chairman.
A. INTERPRETER: And he is from Awami League.
Q. Sorry, his maternal in-law is what, and what--
A. INTERPRETER: ..(not transcribable)..
Q. And what is--
A. INTERPRETER: He is the local area chairman from Awami League.
Q. That's what he is. How is Usman a political leader?
A. INTERPRETER: In our country the situation is like that. If someone has power other people are in his power and act like a political leader.
Q. So he's not a political leader. He is associated with people, is that correct?
A. INTERPRETER: And his family is doing like that, descending on his maternal grandparents power, he is doing in the local area whatever he likes.
Q. Can you look at me, sir, and talk to me. I'm asking you is your uncle Usman a political leader or not? You've said he attends some meetings and he's associated with the chairman of the Awami League. Is he, himself, a political leader?
A. INTERPRETER: Yes. He is a leader of Awami League.
Q. How is he a leader? What is his role?
A. INTERPRETER: As I am not associated with politics I don't know how he become a leader in politics, so I can't tell you that, and in our country to become a leader, what kind of organisational qualification you need or other qualification you need, I can't tell you about that.
Q. Is he a member of Parliament?
A. No, no.
A. INTERPRETER: No.
Q. Does he hold an office in the Awami League? Is he a chairman? Is he a secretary? Is he a leader of the party or hold any particular position? Yes or no. Does he hold - sorry.
A. INTERPRETER: Office meaning there is a club from Awami League. He is always in the club, and from the club he--
Q. I think what I'm understanding is he's not a political - he's not a member of the Awami League. He's not a political candidate. He doesn't hold any role or office in the Awami League. He's associated, he attends meetings, he goes to the club. Is that correct?
A. INTERPRETER: When I was staying in my country, I can see that whatever meeting or other things that was happening from Awami League, it was - the responsibility was given to my uncle first.
Q. To do what? To do what?
A. INTERPRETER: He used to arrange people to make possible the meetings, or some other type ..(not transcribable).. and later that the chairman is sitting in one place and he's sitting next to him.
Q. What do you mean, sitting next to him. At a meeting?
A. INTERPRETER: Yes. Whenever there was a meeting happening in the local area at that time and it showed that he had much power.
Q. But he didn't have a job? He didn't work?
A. INTERPRETER: I don't know exactly that.
Q. What do you mean, you don't know exactly that? He's your uncle?
A. INTERPRETER: Whether he got salary for this or not, I didn't know that.
Q. I'm not asking that. Did he have another occupation?
A. INTERPRETER: His profession is that that he still use his power and take away forcefully things from other people and taking their things. He used to (not transcribable).. but other than that, he didn't do any other work.
Q. How old is your uncle?
A. INTERPRETER: I can't tell you correctly how old he is, but as far as I know he is younger than my father.
Q. So he's quite a young man. Your father was only 52 when all of this started, so he's a relatively young man and he doesn't work and from what you're telling me he organises a few things and he attends meetings and stuff with the Awami League. You're not painting the picture of such a powerful man that you've claimed.
A. INTERPRETER: But his son used to do things on his ..(not transcribable)..
Q. What is Manik's role with the Awami League?
A. INTERPRETER: I don't know exactly, but he tells other people like that he's the general secretary of our local area Awami League.
Q. I've tried to do some research and I've asked our research team to try and identify any information about Usman and the other uncle that you mention, Nurlhygie, as leaders and the chairman of the Awami League in your area and I haven't been able to find anything.
A. INTERPRETER: Nurlhygie is not the chairman anymore. He used to be the chairman.
Q. Well, in any event they haven't found any information, past or present, to support that.
A. INTERPRETER: It's the truth truly. He was that before.
Q. Before this incident where your uncle came to claim your land, what was your relationship - what was the relationship in your family between your brothers, your father and his brother, and - did your 5 families interact?
A. INTERPRETER: My father didn't like my uncle because of his actions and for that reason the family contact between the two families is not that much, and as a good Muslim my father always used to support the family.
Q. So what property did your uncle have of his own?
A. INTERPRETER: What property he had as his own I don't know, but he has got vast properties, that I know.
Q. How does he come to have these vast properties?
A. INTERPRETER: He has taken property from other people.
Q. How long has he been doing that?
A. INTERPRETER: I can't tell you correctly how long he has been doing that.
Q. The Awami League hasn't been in power forever.
A. INTERPRETER: Yes, I admit that the Awami League was not in power for a long time but in recent years two of ..(not transcribable).. They have shoot people regarding land property.
Q. So why did he need your family home if he had all these vast properties?
A. INTERPRETER: I can't tell you why he needed our house, but if he wants it ..(not transcribable).. this is our family home, why are you taking it away? He wants it, that's it, and he will take it away.”
[Emphasis added to highlight that part specifically relied on by the applicant’s proposed ground.]

The entire extract from the transcript as set out above provides context for the subsequent consideration. I also note (although not raised by the applicant’s proposed ground) that it provides the basis to say that the Tribunal’s finding that the applicant’s evidence at the hearing about his relatives’ claimed political role in the AL was: “vague and lacking in detail and does not…support that they are powerful or politically connected people” ([83] at CB 185).
The applicant’s proposed ground derives from that part of the transcript as emphasised above.
The applicant’s submissions explained that contrary to the provisions of s.424AA(1)(a) of the Act, the Tribunal did not provide clear particulars as to the methodology, or the process, of the Tribunal’s research. For example, who did the research? Where, and how, was the research conducted? Further, what was the extent of the research? In all, the applicant claimed a denial of procedural fairness.
The applicant also submitted that the denial of procedural fairness can be seen because the Tribunal’s statement cannot be “responded to” or “commented on”. Nor did the Tribunal give the applicant the opportunity of additional time after the hearing to comment on, or respond to, the information as is also required by s.424AA(1)(b) of the Act.
In short, therefore, clear particulars of information were not given to the applicant at the hearing, and he was not given the opportunity to comment on, or respond to, it.
The applicant’s submissions proceeded from the proposition that given what was said at the Tribunal hearing, s.424AA of the Act was “enlivened”, and therefore clear particulars of the information needed to be provided to the applicant. This argument was also put, in part, with reference to the letter from the Tribunal to the applicant dated 25 February 2016 seeking the applicant’s comments on, or response to, “information” (CB 149 to CB 150) (see further below).
Section 424AA of the Act is not “enlivened” simply because the Tribunal made statements at the hearing. Section 424AA of the Act is one avenue available to the Tribunal to discharge orally, at a hearing, its obligation pursuant to s.424A(1) of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”), SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90; (2015) 318 ALR 450).
Therefore, in the first instance, attention must be directed to this section. The relevant question posed is whether s.424A(1) of the Act was “enlivened” in the circumstances.
The “information” identified by the applicant now before the Court is said to be the methodology that was employed in the Tribunal’s research about the applicant’s relatives said to be involved with the AL. That is not “information” for the purposes of s.424A(1) of the Act. At the very least, as explained in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609 (“SZBYR”) (at [17]), “information” for the purposes of s.424A(1) of the Act is information that, in its terms, is a “rejection, denial or undermining” of the applicant’s claims”.
Even if the applicant’s argument that the Tribunal should have given the applicant, pursuant to s.424AA of the Act, the opportunity to comment on, or respond to, its statement that it could not find any information about those from whom the applicant came to fear harm were to be accepted (which it is not), then the absence of evidence (which is the essence of what the Tribunal told the applicant) is also not information for the purposes of s.424A(1) of the Act (see SZBYR at [17] and SZIDR v Minister for Immigration & Anor [2007] FMCA 1653 with which I respectfully agree).
In his written submissions, the applicant also argued (as set out above) that after the hearing, the Tribunal wrote to him on 25 February 2016 and sought his comment or response. Relevantly, in that letter, the Tribunal stated (CB 149.6):
“…The particulars of the information are:
- A country information request (CI151222164859994) regarding Awami League membership in Bangladesh located no information on the Awami League and the names Manik Usman or Nural Hajji, or Nural Haji or the office/s of leader or Chairman in Haruria Village. Sources consulted were CISNET, Twitter and internet sites (including Bangladesh Awami League information is relevant to the review because it does not support your claims that Manik Usman and Nural Hajji are powerful/influential people in the local Awami League.
If we were to rely on the information, we may find that your evidence is not credible and reject your claims, which may lead the Member to affirm the decision.
You are invited to give comments on or respond to the above information in writing...”
The applicant’s argument was that at the hearing the Tribunal purported to utilise s.424AA of the Act, realised that it had not done so adequately (that is, it failed to provide detail about the methodology of its research and give the applicant the opportunity to comment or respond), and therefore purported to address this by its subsequent letter. That is, the Tribunal sought to “engage” s.424AA of the Act at the hearing. In that circumstance, it was required to “implement” the section as required by the terms of that section, and to do so at the hearing. By “implement” I understood the applicant to say that the Tribunal was required to comply with all of the requirements of s.424AA of the Act as they applied to his circumstances before the Tribunal.
The difficulty for the applicant is as follows. One, s.424AA of the Act is not “enlivened” in a vacuum. It is engaged, by the exercise of the Tribunal’s discretion at the hearing to satisfy the Tribunal’s obligation under s.424A(1) of the Act. As set out above, s.424A(1) of the Act was not “enlivened”.
Two, even if the Tribunal did purport to utilise s.424AA of the Act, this does not mean that the “information” it put to the applicant was “information” for the purposes of s.424A(1) of the Act (SZTNL v Minister for Immigration and Border Protection [2015] FCA 463; (2015) 231 FCR 204).
Three, there is no jurisdictional error in the Tribunal stating that it put something to the applicant pursuant to s.424AA of the Act, or for that matter s.424A of the Act, when that section is not engaged (SZMCD). Noting also that the Tribunal made no such statement at the hearing.
Four, the Tribunal’s subsequent letter of 25 February 2016 to the applicant, even if it purported to put “information” pursuant to s.424A of the Act to the applicant, does not give rise to any arguable case of legal error.
Five, in any event, to the extent that the applicant’s submissions claimed that he was denied procedural fairness because he was denied the opportunity to comment on or respond to the matter put to him by the Tribunal, that argument has no merit.
The Tribunal squarely put to the applicant both orally, and in writing, that “no information” had been located on his relatives’ connections to the AL (see above at [26]). In its subsequent letter the Tribunal gave the applicant the details of the sources that were consulted, and told the applicant how this was relevant to the review. The applicant was given a reasonable period to comment on, or respond to, the “information”.
There is no merit in the proposed ground such as to argue for the leave to amend the application to be granted. This is sufficient for leave to be refused.

Conclusion

The proposed ground does not have such merit as to warrant granting leave to amend the application. Leave is to be refused. The grounds in the original application are not pressed by the applicant. The application should therefore be dismissed. I will make the appropriate order.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 15 October 2018