AYV16 v Minister for Immigration
[2017] FCCA 2980
•18 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYV16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2980 |
| Catchwords: Migration – Judicial Review – Protection Visa. |
| Legislation: Migration Act 1958 (Cth) ss.91WA, 474, 476 |
| Cases cited: Broadcasting Tribunal v Bond [1990] 170 CLR 321 at 353 Gill v Minister for Immigration [2015] FCCA 2674 |
| Applicant: | AYV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 375 of 2016 |
| Judgment of: | Judge Howard |
| Hearing date: | 18 October 2017 |
| Date of Last Submission: | 18 October 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 18 October 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs fixed in the amount of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 375 of 2016
| AYV16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
A.These reasons were delivered ex tempore on 18 October 2017 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
In this particular application, the applicant arrived in Australia on 4 May 2013, more than four years ago. In the court book, which will be exhibit 1, it is noted that the applicant arrived as a so-called “unauthorised maritime arrival”. In August 2013 (22 August), the applicant applied for a protection visa and he claimed to be a Bangladeshi citizen – a Sunni Muslim from a particular province in Bangladesh known as Faridpur, and also made the claim to have been a member of a Bangladesh political party known as Jatiya, and that he was also a recruiter for that party and tried to get more members.
The applicant also maintained that the ruling party in Bangladesh, known as the Awami League and the Bangladesh National Party, known as the BNP, became aware that he, the applicant, was conducting various meetings and I gather, from the material, that the applicant maintained that apparently because of his political manoeuvring, according to the applicant, the Awami League and the Bangladesh National Party confiscated the applicant’s family’s farm, attempted to extort money from his own business, ransacked a shop that he owned, beat him, slashed him with knives and it seems, threatened to kill him. He also maintained they had stabbed his mother in the stomach and he made other claims. On 12 December 2014, the Minister’s delegate refused to grant a visa and the applicant, on 19 December 2014, applied to the Tribunal for a review. On 5 April 2016, the Tribunal affirmed the delegate’s decision. The Tribunal found that there were many problems with the applicant’s claims.
He seemed to know very little about the political party, known as the Jatiya Party, of which he claimed to be a local organiser and an active member for a lengthy period of time. The applicant’s claim that his mother had been stabbed to death in March of 2012 was itself contradicted on the face of his own mother’s death certificate that was produced, which stated that her death had occurred two months beforehand in January 2012. And not only that, the death was on account of a cardiorespiratory failure.
In general, the Tribunal came to the conclusion that the applicant’s evidence was unreliable. His claims were unreliable. The Tribunal did not believe the applicant. The Tribunal also considered that the applicant had provided a bogus document, namely, his birth certificate, without any reasonable explanation as to why. And the Tribunal concluded that it was compelled to refuse to grant a protection visa under section 91WA of the Migration Act. That section states:
“91WA (1) The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a) the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
(b) the Minister is satisfied that the applicant:
(i) has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii) has caused such documentary evidence to be destroyed or disposed of.
(2) Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b) either:
(i) provides documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to provide such evidence.
(3) For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented”
The application before this Court for judicial review was filed on 26 April 2016, and there is an accompanying affidavit. The application seeks the issue of constitutional writs. The Federal Circuit Court of Australia has the same original jurisdiction as the High Court of Australia to issue constitutional writs under section 476, subsection (1) of the Migration Act. It is noted that such jurisdiction is constrained by section 474 of the Act. The significant difficulty for the applicant on the hearing of this application for judicial review is the fact that the originating application that was filed on 26 April 2016 does not specify any grounds of review.
Furthermore, the affidavit filed by the applicant on 26 April 2016, does not provide any grounds for review either. I note what was said by Judge Neville in the matter of Gill v Minister for Immigration [2015] FCCA 2674 at paragraph 23. At that paragraph, his Honour stated:
“I accept these submissions. Having accepted them, this would be more than sufficient to dismiss the application essentially on the basis that the respondents and the Court do not have a case to address, which is properly and/or adequately defined. It is a long-standing principle across all jurisdictions and all courts, irrespective that each party should have adequate notice of the case that will have to be met at the trial of the hearing.”
Well, Judge Neville is certainly correct, and on the basis of that alone - the application should be dismissed. I will go on to provide further reasons in any event. The material does not disclose any jurisdictional error. The Minister, as a model litigant, has drawn to the Court’s attention what is said to be an immaterial error in the Tribunal’s decision. I note what was said by Mason CJ in the Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321 at 353. His Honour stated:
“A decision does not involve an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.”
And in that same decision, Toohey and Gaudron JJ stated at 384:
“For an error of law to be involved in a decision something more than a mere occurrence of error is necessary. The error must have contributed to the decision in some way, or at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in the decision, if it did not contribute to the decision, or if the decision must have been the same, regardless of the error. Thus to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred.”
The error that the Minister has identified is indeed an immaterial error. It seems that the Tribunal’s error led it to act under a mistaken view as to the precise class of protection visa application that was before it.
This appears to have come about because of the passing of various pieces of legislation, referred to in the Respondent’s written submissions at Paragraph 34:
“34. In short compass, the error (and the background to it) is as follows:
(a) in 2014, the legislature passed the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (“Amendment Act”);
(b) one measure introduced in that amendment was to only permit unauthorised maritime arrivals to apply for temporary protection visas (that is, limited in duration to three years);
(c) as part of implementing that measure, the Amendment Act introduced “conversion” provisions into the migration legislation (s 45AA of the Act and reg 2.08F) – which, in substance, provided that certain permanent protection visa applications would be taken to have always been applications for temporary protection visas. This took effect by:(i) s 45AA of the Act providing for the power for regulations to be made “converting” visa applications made for one class into visa applications made for another class; and (ii) reg 2.08F setting out the circumstances in which certain permanent protection visa applications would be “converted” into temporary protection visa applications;
(d) in the context of this case, the reg 2.08F conversion regulation only applied if one of the five events specified in reg 2.08F(3)(b)(i) to (v) had occurred;
(e) in this case, none of those five specified events had occurred – although the Tribunal (erroneously) still considered that reg 2.08F had application; and
(f) thereby, the Tribunal (erroneously) concluded that the visa application it was dealing with was an application for a Temporary Protection (Class XD) visa (when, in fact, the application was for a Protection (Class XA) visa).”
I agree with the submission made on behalf of the Minister that such an error had no impact on the Tribunal’s decision. It certainly could not be seen to be an error that would lead this Court to conclude that the Tribunal had acted beyond its powers or beyond its jurisdiction.
It was not a jurisdictional error. I note, for instance, that there is, in fact, no material difference between the criteria for a temporary protection class XD visa and a protection class XA visa. For a jurisdictional error to actually exist, it is the decision which must be affected by jurisdictional error. The decision by the Tribunal in this particular case, when it affirmed the decision of the delegate to refuse a protection class XA visa, came about because the Tribunal was compelled to reach that decision, given the findings of fact that had been made by the Tribunal. In particular, in relation to section 91WA of the Migration Act, and also the findings of fact that the applicant’s claims were simply not genuine.
I agree with the submission made on behalf of the first respondent that the misunderstanding by the Tribunal as to the relevant visa application class that it was dealing with could not, in any way, be seen to have had any effect on the Tribunal’s decision.
Accordingly, there was indeed no jurisdictional error in the Tribunal’s decision. The application should be dismissed with costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 21 December 2017
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