Azafv v Minister for Immigration and Border Protection
[2016] FCA 79
•10 February 2016
FEDERAL COURT OF AUSTRALIA
AZAFV v Minister for Immigration and Border Protection [2016] FCA 79
Appeal from: AZAFV v Minister for Immigration & Anor [2015] FCCA 2407 File number: SAD 322 of 2015 Judge: PERRY J Date of judgment: 10 February 2016 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a Refugee Review Tribunal decision – whether change in hearing date before the Federal Circuit Court resulted in a breach of the rules of procedural fairness – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) s 36(2)(a), s 65
Migration Regulations 1994 (Cth) Schedule 2
Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39
NAHI v Minister for Immigration Indigenous Affairs [2004] FCAFC 10
Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301
Date of hearing: 10 February 2016 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Mr Tredrea Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent entered a submitting appearance, save as to costs ORDERS
SAD 322 of 2015 BETWEEN: AZAFV
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRY J
DATE OF ORDER:
10 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs as agreed or taxed.
3.If taxed, the amount of costs awarded is not to exceed the sum of $5800.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)PERRY J:
1. INTRODUCTION
This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Refugee Review Tribunal (which is now the Administrative Appeals Tribunal) (the Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the appellant a Protection (Class XA) visa (the visa) pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).
The principal issue raised on the appeal is whether the change in the date on which the application for judicial review was listed in the Court below resulted in a breach of procedural fairness. For the reasons below, there was no breach of procedural fairness occasioned. Otherwise, the appeal seeks to challenge adverse findings of fact by the Tribunal which were open to it as a matter of law. It follows that the appeal must be dismissed.
2. BACKGROUND
2.1 The appellant’s claims for protection and decision of the Minister’s delegate
The appellant is a citizen of Bangladesh who arrived in Australia in 2007 as the holder of a student visa. On 13 June 2013, the appellant applied to the then Department of Immigration and Citizenship (the Department) for the visa. The appellant’s claim for protection was summarised by the Federal Circuit Court as follows at [3]:
ŸHe attended a student demonstration on October 2006 in Dhaka as a supporter of the BNP …[the Bangladesh National Party] – a supporter of the BNP was injured when struck on the head by a stone and other persons in the area were killed;
ŸHe is known as an active political worker of the 18 Party Alliance;
ŸThe Applicant’s uncle and father are both members and local leaders of the BNP and his father has been threatened by the government;
ŸBangladeshi government brings cases against innocent people for no reason or for their political activities;
ŸHe may be held for ransom by criminals;
ŸThose who favour the ruling political party receive more favourable opportunities in relation to employment and study;
ŸThe government student wing, or someone under their influence, will harm the Applicant and he will be targeted by criminal elements and the police;
ŸHe will be targeted by the ruling party due to his family’s involvement with the BNP, and by criminal elements and police due to being a returnee from Australia and perceived as wealthy;
ŸMany people known to the Applicant have been killed brutally by the terrorist student wing of the government;
ŸIn some cases people from the government have come to other people’s homes wearing police uniform and arresting them;
ŸThe situation in Bangladesh is getting worse over time because the government does not want to give up power;
ŸThe police are taking advantage of this unstable situation and in some cases are arresting people in order to get money; and
ŸThe Applicant’s younger brother left the country three years ago, and his father is urging the Applicant to stay in Australia because the situation in Bangladesh is not safe.
On 3 September 2013, the appellant informed the Department that charges were laid against him and his uncle, brother and father, accusing them of assaulting and robbing an Awami League member on 18 August 2013 in Feni. On 10 September 2013 the appellant emailed scanned copies of charges allegedly laid against himself and family members relating to involvement with the BNP. The appellant subsequently informed the Department on 13 November 2013 that his cousin and another relative were charged and that his cousin had fled overseas.
On 4 February 2014, a delegate of the Minister refused to grant the appellant a protection visa on the basis that he was not satisfied that the appellant was a person to whom Australia had protection obligations under s 36 of the Act and cl 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
2.2 The Tribunal’s decision
On 20 February 2014, the appellant applied to the Tribunal for review of the delegate’s decision. The appellant appeared before the Tribunal on 10 December 2014 to give evidence and present arguments, and was represented at this hearing by his registered migration agent.
On 9 January 2015, the Tribunal affirmed the delegate’s decision not to grant the appellant the visa. The Tribunal rejected first the appellant’s claim for protection under s 36(2)(a) of the Act based on Australia’s obligations under the Refugees Convention (the refugee claim). With respect to the appellant’s claim to fear persecution by reason of his claimed affiliation with the BNP, the Tribunal found at [177]-[178] that the appellant:
…was unable to articulate the manifesto, principles, policies and platforms of the party in various campaigns except in the most simple terms.
The Tribunal finds that the applicant was, at best, a supporter of the BNP and given his age when he left the country [17 years of age], had little or no profile with the party. His evidence as to his role profile and activities was vague and unpersuasive.
Nor did the Tribunal accept that the alleged incident at the political rally in 2006 had occurred. In this regard the Tribunal found at [179] that:
The most serious incident of harm claimed by the applicant was his claimed participation in a demonstration and a fight which ensued causing him to flee. He was injured by a stone but claimed some people were killed. Asked when it was, he hesitated before saying he thought it was in 2006. He thought it was maybe in October sometime in the 20s. Even in explaining this incident, the most serious claimed by him, the applicant’s evidence was far from persuasive. Given his lack of profile and lack of corroborating evidence of the incident the tribunal does not accept that the incident occurred.
The Tribunal also found that it was implausible, given the appellant’s at best low political profile, that any charges would have been laid against him in Bangladesh. Nor, the Tribunal found, was any evidence adduced to indicate that his father or uncle, who the appellant claimed were officeholders in the BNP, had suffered any serious harm in Bangladesh (at [183]). The Tribunal concluded at [185] with respect to the appellant’s evidence relating to his claimed affiliation with the BNP that:
His evidence in relation to his being attracted to the BNP was, at best, superficial. When asked about elections, his evidence was tentative and confused. His evidence was devoid of specific detailed policies which the BNP espoused that attracted him, and that it advocated over many years, and his evidence was superficial, at best, in relation to the BNP and its goals, philosophy, principles, and policies and lacked any supporting detail which a supporter of a political party would be able to relate. The tribunal considered the applicant’s evidence as to his motivation for joining and becoming active with the BNP. The Tribunal considered the applicant’s evidence and rejects his claimed affiliation with the BNP or, at best, finds him to be a low-level supporter.
Given country information indicating that fraudulent documentation from Bangladesh is readily available, the Tribunal also gave the purported evidence relating to charges no weight (at [186]). Nor did the Tribunal accept that the appellant faced harm fleeing a BNP gathering, noting that there was no corroborating medical evidence, and found that “there is no credible or trustworthy evidence before it that the police, Rapid Action Battalion (RAB), the AL, or anyone, or any agency or group acting at its behest, has any interest in the applicant” (at [187]). The Tribunal also found that, given the country information, the appellant does not face a real chance of persecution in Bangladesh for reasons of political opinion and that his delay in leaving Bangladesh in the first place, and his delay in lodging a protection visa application for six years until his visa had expired, supported its finding that the appellant does not have a subjective fear of persecution and “further seriously undermines his credibility” (at [189]).
The Tribunal also considered that the appellant’s fears of persecution by reason of perceived wealth were not well founded, finding that he has no personal wealth and would not be perceived as being wealthy in Bangladesh because he had studied in Australia. The Tribunal concluded that it was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Act.
Nor, for essentially the same reasons, did the Tribunal accept that there were substantial grounds for believing that there was a real risk that the appellant would be subject to significant harm as defined in s 36(2A) of the Act so as to attract complementary protection and satisfy the alternative criteria in s 36(2)(aa) for the grant of a protection visa.
2.3 The decision of the Federal Circuit Court
On 6 February 2015, the appellant applied for judicial review of the Tribunal’s decision before the Federal Circuit Court. On 26 August 2015, the Federal Circuit Court dismissed the application, concluding that no jurisdictional error had been established. The Federal Circuit Court concluded:
9. The Applicant’s challenge to the Tribunal sought no more than to assert the Applicant’s disagreement with the Tribunal’s ultimate findings. The Tribunal was not bound to accept the Applicant’s claims at face value. The weight to be given to his claims was a matter for the Tribunal to assess as part of its fact finding function. The authority for that proposition is the case of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282.
10. The Applicant’s alleged problems were considered by the Tribunal. The political situation in Bangladesh was likewise extensively considered with considerable reference by the Tribunal to the relevant country information. The Applicant’s assertion that the political situation in Bangladesh was not considered is patently incorrect.
11. What the Applicant appears really to be asserting is his disagreement with the outcome of the Tribunal’s decision. This is something that cannot be impugned in this Court as was stated in the case of NAHI v Minister for Immigration and Indigenous Affairs (2004) FCAFC 10 [10]….
12. The Applicant’s Application to this Court plainly seeks a review of the merits of the Tribunal’s decision. Accordingly, the Application to this Court must be dismissed for the reasons made clear in the case of NAHI, previously referred to, and the case of Plaintiff S157.
The Federal Circuit Court identified one error where the Tribunal had stated in its reasons that the appellant “was given until 19 December 2014 to provide additional evidence” to the Tribunal about outstanding charges in Bangladesh. The Tribunal had in fact allowed the appellant until 24 December 2014 to provide this information. The Appellant provided information after this deadline on 29 December 2014. However, as the Court below held, the Tribunal explicitly noted at [69] of its reasons that it had received additional information, being a complaint dated 14 May 2014 and a FIR dated 16 May 2014, and that that material was “considered by the Tribunal”. As such, I accept the first respondent’s submission that nothing turned upon this error.
2.4 The appeal from the decision of the Federal Circuit Court
The notice of appeal from the decision of the Federal Circuit Court identifies the following ground of appeal:
Couldn’t present myself properly with very short notice the date of hearing been changed, have been added extra cost which could give me protection or complimentary protection. I cannot afford at this stage.
(errors in original.)
The appellant seeks the following orders from the Court:
[1] To give me protection or complimentary protection.
[2] Exempt from the cost of first respondent and other costs.
(errors in original.)
3. CONSIDERATION
The appellant did not file any written submissions in advance of the hearing but made oral submissions at the hearing which raised two grounds. I note with respect to the first ground of the appeal that it appeared at one point in his oral submissions in reply that the appellant sought an adjournment. However, upon the matter being clarified, it was apparent that no such application was made but rather the submissions were directed towards addressing the first ground. In any event I would have refused any such adjournment, given in particular the lateness of any such application.
3.1 The change in the date of the hearing before the Federal Circuit Court
First, the appellant submitted that the primary judge erred because the hearing date in the Federal Circuit Court was brought forward and he had consequential problems in preparing for the hearing. In this regard, the order made by the Registrar of the Federal Circuit Court on 13 March 2015 listed the matter for hearing on 9 September 2015. However, by a letter dated 3 August 2015 from the associate to the primary judge, the parties were advised that the hearing had been re-scheduled for 10am on 26 August 2015.
The appellant’s submission amounts in effect to an allegation of a breach of the rules of procedural fairness by the Federal Circuit Court by reason of the reduction in preparation time occasioned by the change in the hearing date. In this regard, the Full Court recently said in Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 (Shrestha) at 308-309 [37]-[38] that:
It is axiomatic that the primary judge was obliged to accord procedural fairness to the appellant: Taylor v Taylor (1979) 143 CLR 1; Re JRL;Ex parte CJL (1986) 161 CLR 342 at 350 per Mason J; Allesch v Maunz (2000) 203 CLR 172 at 184-185 per Kirby J. Counsel for the Minister did not, of course, gainsay that proposition.
It is equally axiomatic that the requirements of procedural fairness include the provision of a reasonable opportunity for the appellant to present evidence and to make submissions: Cameron v Cole (1944) 68 CLR 571 at 589 per Rich J; Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-396 per Dixon and Webb JJ.
The reasons of the Federal Circuit Court do not refer to any application for an adjournment and no such application or foreshadowed application is apparent from the Court file. Nor was it clear from the appellant’s submissions whether or not he recalled making any such application although he seemed to suggest that he may have raised this with Registry staff but had been told that it was not possible.
Ultimately, however, it is unnecessary to decide whether or not any such application was made or was raised with the Registry. In my view, this is plainly not a case where the appellant was deprived of a reasonable time within which to regularise his materials and present his arguments: cf Shrestha. First, depending upon precisely when the letter was received, the appellant was given 3 weeks or so advance notice of the change in the date. Secondly, it was not suggested that the appellant was deprived of the opportunity, for example, to file evidence in support of his application by reason of the fact that the hearing had been moved to an earlier date: cf Shrestha at 311-312 [57]-[59]. To the contrary, under the orders made by the Registrar on 13 March 2015, any evidence on which the appellant sought to rely, including the transcript before the Tribunal, should have been filed by 3 July 2015 and therefore before the change in the listing date. The Court Book had also been filed earlier on 20 April 2015. Thirdly, the only outstanding material was the appellant’s outline of submissions to be filed and served 10 business days before the hearing and the Minister’s outline, 3 business days before the hearing. As a consequence of the new trial date, the appellant’s submissions were therefore to be filed by 12 August 2015 which, while earlier than originally provided for, was not an unreasonable period given among other things the time which had already elapsed since the matter was originally set down. In the fourth place, the appellant had already had almost 6 months within which to engage a legal representative if he so wished and there was no suggestion by the appellant that he would have been able, or intended, to secure legal representation but was deprived of that opportunity by reason of the changed date for the hearing. The mere fact that he was unable, as the appellant suggests, to engage pro bono legal representation does not in itself establish a breach of procedural fairness.
It also follows from these matters, in my view, that no prejudice was pointed to by the appellant which would not be remedied by him being afforded the opportunity to make submissions on the appeal, as has in fact occurred.
3.2 Issue taken with adverse findings by the Tribunal
The appellant otherwise took issue with the rejection by the Tribunal of each of his claims, submitting in effect that those claims should have been accepted as true and that, as the Court below had “agreed” with that decision, the decision of the Federal Circuit Court was equally “wrong”.
As was the case in the Federal Circuit Court, these submissions amount ultimately to the appellant expressing his disagreement with the outcome of the Tribunal’s decision. However, neither this Court nor the Federal Circuit Court has jurisdiction to decide whether on the evidence the Tribunal should have accepted the appellant’s claims and granted him a visa. Those are matters of fact which lie exclusively within the jurisdiction of the Tribunal. Equally, the accuracy of country information relied upon by the Tribunal is a matter for the Tribunal and not for the Court: NAHI v Minister for Immigration Indigenous Affairs [2004] FCAFC 10 at [11] (NAHI). Thus the jurisdiction of the Federal Circuit Court is limited to considering only the lawfulness of the Tribunal’s decision to refuse to grant the appellant a visa, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); NAHI at [10]. In turn, this Court is required on an appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) to consider whether there is error in the decision of the Court below. As such, I am equally unable to consider the merits of the appellant’s claims, as his submissions would invite me to do.
It follows that it is not correct to submit, as did the appellant, that the Court below “agreed” with the Tribunal’s decision. Rather, the Federal Circuit Court found that the decision made by the Tribunal was open to it as matter of law. In my view, the Court below was correct to so find. The Tribunal addressed each of the appellant’s claims and its reasons, which I have summarised above, disclose a logical, rational and intelligible justification for rejecting each of those claims: cf Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. Nor am I otherwise able to discern any error of a jurisdictional kind in the Tribunal’s decision. No more is required as a matter of law.
For these reasons, the appeal must be dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 10 February 2016
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