Bap17 v Minister for Immigration

[2018] FCCA 469

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAP17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 469

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.35A, 45AA
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: BAP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 724 of 2017

Judgment of: Judge Driver

Hearing date: 28 February 2018

Delivered at: Sydney

Delivered on: 28 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Saunders of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 724 of 2017

BAP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 February 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 21 February 2018.

2. The applicant is a male citizen of Bangladesh.  He arrived in Australia on 26 April 2013 as an unauthorised maritime arrival. 

3. The applicant was interviewed on 15 May 2013.[1]  In the interview the applicant claimed that he feared harm from the Awami League due to his involvement with the Shabir political party.  He claimed to have been kidnapped and tortured and to be the subject of a false case.  He also stated that he had previously been married.

   [1] Court Book (CB) 1-17.

4. The applicant applied for a protection visa on 26 July 2014.[2] By operation of s.45AA of the Migration Act 1958 (Cth) (Migration Act) and regulation 2.08F of the Migration Regulations 1994 (Cth) (Regulations) this was taken to be an application for a temporary protection visa.

   [2] CB 20-45.

5. In a statement attached to the application[3] the applicant claimed to fear harm for political reasons.  He claimed to fear harm from the Awami League due to his support for the Islami Chatra Shibir, and from the Islami Chatra Shibir due to his having left the party.

   [3] CB 50-53.

6. At the interview with the delegate on 10 September 2014 the applicant expressed dissatisfaction with the migration agent who had been assisting him under the Immigration Advice and Application Assistance Scheme (IAAAS), and stated that the written statement was not accurate.  He asked that the interview be rescheduled.[4]  In support of this request the applicant submitted a report dated 28 November 2013 from a consultant psychiatrist at the Bankstown Mental Health Service.[5]  It reported symptoms of insomnia, suicidal ideation, low mood and intrusive thoughts and stated that the applicant was placed on medication and was on a wait list for counselling. 

   [4] CB 103-105.

   [5] CB 99-102.

7. The applicant refused to proceed with the interview, and the delegate indicated that they may not schedule another interview unless medical evidence was provided.[6]

   [6] CB 103-105.

8. Following the interview the applicant submitted a statement[7] in which he reaffirmed the truth of the earlier statement, but said that he had additional claims which he had been too nervous to include earlier. In this statement the applicant claimed to fear harm in Bangladesh on the basis of his homosexuality.

   [7] CB 111-113.

9. The applicant provided the following supporting documents:

   a)a letter from Dr Hossain dated 20 August 2014, referring the applicant for hospital admission and reporting lack of sleep, stress, anxiety, depression and suicidal thoughts;[8]

   b)a First Information Report dated 7 June 2012 regarding an extortion threat made to the applicant by the Awami League;[9]

   c)a medical certificate stating that the applicant was unfit to attend the interview on 10 September 2014 due to a “medical condition”;[10]

   d)a mental health treatment plan dated 23 September 2014;[11]

   e)a news report regarding an attack on the applicant’s house, dated 6 November 2012;[12] and

   f)a letter dated 20 August 2014 from the applicant’s father to the police stating that the applicant was in hiding from anonymous terrorists due to a feud in the local area.[13]

   [8] CB 109-110.

   [9] CB 114-123.

   [10] CB 124.

   [11] CB 125-129.

   [12] CB 130-134.

   [13] CB 135-136.

10. The delegate scheduled a further interview with the applicant.[14] The applicant did not attend the scheduled interview on 18 February 2015 and his IAAAS agent advised that he had been unable to contact the applicant.[15]

    [14] CB 147.

    [15] CB 148.

11. The delegate made a decision on 25 May 2015, refusing the application.[16]  The delegate found that as the applicant’s claims had not been able to be tested at interview she was unable to make any findings of fact on the claims in the written statements.  The claims were rejected in their entirety.

    [16] CB 142-155.

12. The applicant applied to the Tribunal for review of the delegate’s decision on 9 June 2015.[17]  He provided a copy of the delegate’s decision record with his application for review.[18]

    [17] CB 156-157.

    [18] CB 163-176.

13. The applicant provided a written statement to the Tribunal on 12 October 2016.[19] The applicant stated that his previous statements contained incorrect information, that this was to serve as his final statement, and his previous statements were null and void. The applicant claimed to fear harm in Bangladesh due to his homosexuality and detailed his past relationships, in particular his relationship with a man named Hanif, and the past harm he had suffered due to his sexual orientation.

    [19] CB 217-231.

14. The applicant attended a hearing before the Tribunal on 25 October 2016.[20] The Tribunal made its decision on 14 February 2017, affirming the decision under review.[21]

    [20] CB 232-233.

    [21] CB 237-252.

The decision of the Tribunal

1. The Tribunal found that the applicant’s claims had continuously changed and that he had not given a credible explanation for this.[22]  The Tribunal detailed the various inconsistencies in the applicant’s account throughout the application process, including the information given at his entry interview, and its rejection of the applicant’s explanations for these inconsistencies.  The Tribunal concluded that the applicant had not given a truthful account of his experiences or the reasons he is seeking protection, and rejected the entirety of the applicant’s claims.[23]  In particular:

   a)the Tribunal did not accept that the applicant was homosexual, that he had been in relationships with men in Bangladesh or that he was ever harmed due to his actual or perceived sexual orientation or because he was perceived as anti-Muslim;[24]

   b)the Tribunal did not accept that the applicant was ever a member of the Shibir or that he was ever harmed by the Shabir or the Awami League.  The Tribunal did not accept that the applicant was ever involved in politics.[25]  

   [22] at [23].

   [23] at [23].

   [24] at[23]. 

   [25] at [23].

2. The applicant claimed that the changing nature of his claims was due to his mental health problems.  The Tribunal noted that no medical evidence was provided to it and that the applicant had told the Tribunal that he had not had any treatment for a mental health condition at any time in 2016.[26]  The Tribunal had regard to the medical reports provided to the delegate and was not satisfied that they supported the applicant’s claim that he was unintentionally providing misleading information.  The Tribunal was not satisfied that the applicant’s medical evidence addressed its concerns about the scale of the inconsistencies in the applicant’s evidence, and the persistent alterations and implausibility in his evidence.[27]

   [26] at [24].

   [27] at [25].

3. The Tribunal found that the letter of Dr Andrew Kalil, consultant psychiatrist, dated 28 November 2013, undermined the applicant’s claims as it recorded that the applicant was the victim of political persecution and had been tortured by the Awami League, but that the applicant had retracted this claim at the Tribunal hearing.  Moreover, the applicant met with Dr Kalil on three occasions but there is no mention of his homosexuality or his relationship with Hanif, in circumstances where he claimed that these were his main stressors.

4. The Tribunal found that subsequent medical evidence did not mention the applicant’s homosexuality or relationship with Hanif, in circumstances where they were contemporaneous with the applicant having advanced this claim to the delegate.

5. The Tribunal found that the mental health treatment plan recorded that the applicant had normal thinking, perception, insight and cognition.

The present proceedings

1. These proceedings began with a show cause application lodged on 13 March 2017.  The applicant now relies upon an amended application filed on 15 September 2017.  There are eight grounds in that application as amended:

   1 The Administrative Appeal Tribunal (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant's 'Original' protection visa (Sub Class 866 of Class XA) rejection by the Minister' s delegate.

   2 The applicant has never applied for a Protection visa (Sub Class 785 of Class XD) that was decided by the delegate of the 'First respondent' and further affirmed by the 'Second respondent', the Administrative Appeal Tribunal.

   3 The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind (Tribunal was biased) to the resolution of the matter before it. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate's decision.

   4 The applicant 'ONLY' applied for a Permanent Protection visa of a Sub Class 866 of Class XA and have never applied for a Temporary Protection Visa (Sub Class 785 of Class XD) which was a drastic error of law.

   5 While the applicant's visa application (Sub Class 866 of Class XA) was on foot, following the amendment of the Migration Act on IMA (Illegal Maritime Arrival), taken in effect from 16 Dec 2014, the applicant was not asked by the 'First Respondent' to re-lodge or amend his Permanent Protection visa application (Sub Class 866 of Class XA).

   6 The questions and content for a 'Permanent Protection Visa' (Sub Class 866 of Class XA) application was not similar to the 'Temporary Protection visa’ application (Sub Class 785 of Class XD) which was refused by the first respondent and the decision further was affirmed by the Administrative Appeal Tribunal (the Tribunal).

   7 The Tribunal has never raised this crucial issue to comment on or explained to the applicant at any point throughout the hearing with them on 25 October 2016, however the Tribunal has asked the applicant question which he gave in his 'Permanent Protection' visa application. The information was the reason or part of the reason for the Tribunal affirming the decision under review (Please refer to the attached the hearing transcript.)

   8 The second respondent has denied the applicant's natural justice and procedural fairness pursuant to s423A and 430(1)(c) and (d) of the Migration Act 1958.

2. The applicant also relies upon two affidavits, the first filed with his original application on 13 March 2017, and the second described as an affidavit of service filed on 15 September 2017 with his amended application.  I received both of those affidavits as submissions.  The second affidavit refers to a transcript of the Tribunal hearing.  That was apparently sent by post, but had not reached me prior to this morning.  The Minister’s solicitor provided her copy and copies were made for the applicant and me.  I received the transcript as an exhibit.[28]

   [28] exhibit A1.

3. The applicant, essentially, makes two complaints about the Tribunal hearing. The first is that, while he had applied for a permanent protection visa it was dealt with by the Tribunal as an application for a temporary protection visa. The allegation is correct, but the Tribunal was dealing with regulations made under the Migration Act which had effect to convert a class of permanent protection visa applications into temporary protection visa applications. In my opinion, the Tribunal had no option but to apply the regulations. The Tribunal notes the change in the law at [3] of its reasons.[29] 

   [29] CB 238.

4. The applicant also asserts that the Tribunal was biased or preoccupied.  There is no support for that proposition in the Tribunal reasons.  I invited oral submissions from the applicant this morning but he declined to make any.  I invited the applicant in particular to take me to any parts of the transcript of the Tribunal hearing that he thought might support his case.  He declined to do so.  In my opinion, there is nothing before the Court to support the allegation of bias or, alternatively, an allegation of preoccupation. 

5. I otherwise agree with the submissions of the Minister on the grounds of review. 

6. The amended application and the applicant's affidavit filed on 15 September 2017 take issue with the Tribunal’s findings that the protection visa application lodged by the applicant was taken to be an application for a temporary protection visa. The Tribunal’s findings at [3] reflect an accurate and correct application of s.45AA of the Migration Act and regulation 2.08F the Regulations.

7. Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the 2014 Amendment) created a new class of temporary protection visa (Class XD) and amended the criteria for a permanent protection (Class XA) visa so that they cannot be met by certain classes of persons. Both temporary and permanent protection visas are designated as “protection visas” by new s.35A of the Migration Act.

8. Section 45AA of the Migration Act, which was inserted by the 2014 Amendment, permits the Regulations to include provisions deeming applications for a particular class of visa to be applications for a visa of another class. Consistently with that provision, regulation 2.08F of the Regulations (which was inserted directly by the 2014 Amendment and which commenced on 16 December 2014) relevantly provides as follows:

   Conversion regulation

   (1) For section 45AA of the Act, despite anything else in the Act, a valid application (a pre-conversion application) for a Protection (Class XA) visa made before the commencement of this regulation by an applicant prescribed by subregulation (2) is, immediately after this regulation starts to apply in relation to the application under subregulation (3):

   (a) taken not to be, and never to have been, a valid application for a Protection (Class XA) visa; and

   (b) taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa, made by the prescribed applicant.

   Prescribed applicants

   (2)     The following are prescribed applicants:

   (a)  an applicant who holds, or has ever held, any of the following visas:

   (i)      a Subclass 785 (Temporary Protection) visa granted before 2 December 2013;

   (ii)     a Temporary Safe Haven (Class UJ) visa;

(iii)   a Temporary (Humanitarian Concern) (Class UO) visa;

(b)  an applicant who did not hold a visa that was in effect on the applicant's last entry into Australia;

(c)  an applicant who is an unauthorised maritime arrival;

(d)  an applicant who was not immigration cleared on the applicant's last entry into Australia.

When this regulation starts to apply

(3) This regulation starts to apply in relation to a pre-conversion application immediately after the occurrence of whichever of the following events is applicable to the application:

(a) if, before the commencement of this regulation, the Minister had not made a decision in relation to the pre-conversion application under section 65 of the Act—the commencement of this regulation;

…

1. The Tribunal was correct to find that by operation of s.45AA and regulation 2.08F, the applicant's protection visa application was taken to be a valid application for a temporary protection (Class XD) visa:

   a)the applicant made a “pre-conversion application” in the form of a valid application for a protection (Class XA) visa on 26 July 2014 before the commencement of regulation 2.08F on 12 December 2014, and where the visa had not yet been granted to the applicant (regulation 2.08F(1)); 

   b)the applicant is a “prescribed applicant” as an unauthorised maritime arrival (regulation 2.08F(2)(c)); and

   c)the Minister had not yet made a decision on the application when the “conversion regulation” (regulation 2.08F) commenced.  Accordingly, it took effect on 16 December 2014 when the regulation commenced (regulation 2.08F(3)(a)).  The effect of this was that the applicant’s visa application was taken to be an application for a temporary protection (Class XD) visa.

2. To the extent that the applicant alleges that the operation of the above provisions was not raised with him at the Tribunal hearing, the delegate also relied on these provisions to find that the application was taken to be for a temporary protection visa.  The applicant therefore was on notice of this issue and the Tribunal was not required to raise this with the applicant or otherwise bring it to his attention.[30]

   [30] SZBEL v Minister for Immigration (2006) 228 CLR 152.

3. Ground 3 of the amended application alleges that the Tribunal decision is affected by a reasonable apprehension of bias.  This is a serious allegation which needs to be properly particularised and proven by way of evidence.  The basis of the allegation made by the applicant is the suggestion that the Tribunal decision was copied from that of the delegate.  A simple reading of the Tribunal decision record discloses that this cannot be sustained.  To the extent that the allegation is made on the basis that the Tribunal applied the provisions discussed above in the same manner as the delegate, for the reasons set out above the Tribunal was correct to do so and this is not capable of establishing apprehended bias.

4. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

5. In consequence of the dismissal of the application the Minister seeks an order for costs in the sum of $3,606.  The applicant did not wish to be heard on costs.

6. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  6 March 2018