BED16 v Minister for Immigration
[2017] FCCA 1454
•26 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BED16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1454 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Protection (Class XA) visa – whether claims considered – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.91X, 425, 425A, 441A, 476 Migration Regulations 1994 (Cth), reg.4.35D(3) |
| Cases cited: Craig v The State of South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193 Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 |
| Applicant: | BED16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 216 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 26 June 2017 |
| Date of Last Submission: | 26 June 2017 |
| Delivered at: | Perth |
| Delivered on: | 26 June 2017 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr A Burgess |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $5,800 by 26 July 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 216 of 2016
| BED16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
Introduction
By an application under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) filed on 16 May 2016 (“Judicial Review Application”) the applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal dated 13 April 2016 (“AAT Decision” and “AAT” respectively). A copy of the AAT Decision is in the Court Book (“CB”) at CB 78-84. The AAT Decision was to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) not to grant the applicant a Protection (Class XA) visa (“Protection Visa”).
The Court notes that there was no appearance by the applicant today. The Court is satisfied that the applicant was notified by email on 18 May 2017 of an amendment to the hearing date to today’s date, noting that the matter had previously been listed by a Registrar of this Court for a hearing on 2 June 2017. The matter was called outside when the applicant did not appear, and there was still no appearance by the applicant, and it is now 2.25pm and there is still no appearance by the applicant for a matter scheduled to commence at 2.15pm. The Court notes that the applicant did not appear before either the Delegate or the AAT, and indeed through his migration agent declined to appear before the AAT, and when regard is had to all of the above circumstances, the Court intends to proceed to hearing and delivery of Reasons for Judgment today.
Background and applicant’s claims
The background to this matter prior to the AAT Decision, and the applicant’s claims, are as follows:
a)the applicant is a citizen of India who first arrived in Australia on 12 July 2009 holding a student visa as a dependent: CB 59;
b)the applicant was subsequently granted two further student visas, in October 2011 and May 2012, as a dependent, prior to the refusal of a dependent temporary graduate visa on 24 October 2013: CB 59;
c)the applicant last arrived in Australia on 21 January 2013: CB 59;
d)on 11 February 2014, the applicant made an application to the then Department of Immigration and Citizenship (“Department”) for the Protection Visa: CB 1-30, and appointed a migration agent to represent him: CB 28-30;
e)in his Protection Visa application, the applicant claimed:
i)to fear harm from his uncle’s family due to a land dispute: CB 20;
ii)that the land the subject of the dispute is in the possession of his uncle, but while the applicant was in India it belonged to the applicant: CB 20; and
iii)that the authorities do not take interest in such disputes and further that his uncle influences political groups: CB 22;
f)on 18 December 2014, the Delegate refused to grant the applicant the Protection Visa: CB 54-66, and noted that the applicant was invited to attend an interview, however, did not attend at the scheduled time: CB 62;
g)on 19 January 2015, the applicant lodged an application for review to the AAT: CB 67-68;
h)on 11 February 2016, the AAT invited the applicant to appear before it, to give evidence and present arguments at a hearing on 6 April 2016: CB 69-72; and
i)on 5 April 2016 (the day before the AAT hearing), the applicant’s representative sent an email to the AAT advising: CB 73:
Please be advised that our client [name deleted] has informed us that he is not going to appear for the hearing at AAT. Please give a decision in his absence as [name deleted] intends to apply for Ministerial Intervention.
The applicant’s name has been deleted from the above quote in accordance with the provisions of s.91X of the Migration Act.
AAT Decision
In the AAT Decision the AAT:
a)noted that the applicant had been invited to a hearing before it: CB 79 at [5], and that the applicant had declined to attend the hearing: CB 79 at [6], and given that the applicant had provided his consent to the AAT to decide the review without him appearing before it, the AAT proceeded to make a decision on the information before it: CB 79 at [7];
b)found that the family land dispute claims were general, vague and lacking in detail in a number of significant respects: CB 83 at [36], and was not satisfied that the family land dispute, as claimed by the applicant, actually occurred: CB 83 at [38];
c)found that there was no explanation, on the material before it, as to why the applicant had delayed in lodging the Protection Visa application, the AAT noting that the applicant did not lodge his Protection Visa application until approximately four and a half years after first arriving in Australia, and after having exhausted all other visa options to remain in Australia, and further noting that it was legitimate to take into account an applicant’s delay in lodging an application for a Protection Visa in assessing the genuineness of the alleged fear of persecution, and citing the well-known judgment of the Federal Court in Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347: CB 83 at [37];
d)was not satisfied that there was a real chance that the applicant would suffer persecution amounting to serious harm if he were to return to India in the reasonably foreseeable future: CB 83 at [38]; and
e)was further not satisfied that the applicant faced a real risk of significant harm if he were to return to India in the reasonably foreseeable future: CB 83 at [39]; and
f)affirmed the Delegate’s Decision not to grant the applicant the Protection Visa: CB 78 and CB 84 at [44].
Judicial Review Application – grounds and procedural matters
The grounds of review contained in the Judicial Review Application are as follows:
1. My name is … [name deleted] and I applied for protection visa on 11th February 2014 and my visa refused by delegate on 18th December 2014.
2. Then I applied for Tribunal Review on 19th January 2015
3. Due to various reason I was not able to attend the oral hearing. I informed to the tribunal through my appointed agent.
4. I legally entered in Australia on 572 student visa on 12th July 2009
5. Then I applied further student visa extension with my spouse and that time my further student visa was extended.
6. I also applied for 485 Temporary Graduate Visa and that application was refused on 24th October 2013
7. I have made claims in my protection visa application but that hasn't been accepted by the Department of Immigration
8. The delegate didn’t consider my claims so I want to go through federal circuit court to reassess my decision made by Minster
9. I need fir chance to explain my situation so that I applied further application in the federal court
10. I hope to get justice and request to review the negative decision made by Ministers.
(Transcribed from the Judicial Review Application without amendment).
The applicant’s affidavit filed with the Judicial Review Application simply recounted the grounds of the Judicial Review Application as set out above.
Despite Orders made on 22 June 2016 by a Registrar of the Court (“Registrar’s Orders”) permitting the applicant to file an amended application and affidavit evidence by 26 July 2016, no amended application or affidavit evidence was filed by the applicant. The applicant was also required to file and serve written submissions 42 days before the hearing, but has failed to do so. The Minister filed written submissions on 11 May 2017 in accordance with the Registrar’s Orders.
Consideration
Jurisdictional error required
The Tribunal Decision is only liable to be set aside on judicial review by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ; Craig v The State of South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; CLR at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
Grounds 1-7
Grounds 1-7 of the Judicial Review Application set out material consisting of evidence from the applicant regarding his claims and submissions challenging aspects of the merits of the AAT Decision, which amount to no more than a request for impermissible merits review contrary to a longstanding chain of authority emanating from Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”), a case followed many times in this Court.
It follows that grounds 1-7 are not made out.
Ground 8 – as it refers to the Delegate’s Decision
Insofar as ground 8 seeks to cavil with the Delegate’s Decision it is incompetent. The Delegate’s Decision is a primary decision which the Court does not have jurisdiction to review: Migration Act, s.476(2)(a) and (4). In any event, it is well established that if the AAT Decision is not flawed, it cures any defects and irregularities in the Delegate’s Decision: Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294; Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495; (2000) 62 ALD 513 (2000); Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534; Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J.
Ground 8 – whether claims considered
Ground 8 of the Judicial Review Application contains the only substantive allegation of error in the Tribunal Decision insofar as it alleges that the applicant’s claims were not considered by the Delegate. Assuming, for the benefit of the applicant, that it may have been intended to refer to the AAT and not the Delegate, the Court observes that there is no doubt that jurisdictional error may be established if an administrative decision-maker disregards the substance of a claim made by an applicant: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244.
The AAT’s hearing invitation of 11 February 2016 complied with ss.425 and 425A of the Migration Act in that it relevantly:
a)invited the applicant to appear before the AAT to give evidence and present arguments: Migration Act, s.425(1);
b)provided notice of the specified day, time and place of the AAT hearing: Migration Act, s.425A(1);
c)was sent to the applicant’s representative by one of the methods specified in s.441A of the Migration Act, namely, by email: Migration Act, ss.425A(2)(a) and 441A(5)(b), and
d)provided a period of time prior to the AAT hearing to the applicant exceeding the prescribed period of 14 days from when the invitation was received: Migration Regulations 1994 (Cth), reg.4.35D(3).
Having complied with ss.425 and 425A of the Migration Act, once the applicant consented to the AAT determining the review without him appearing before it, the AAT could proceed under s.425(2)(b) and (3) of the Migration Act to determine the application for review on the basis of the applicant’s consent without holding a hearing. The combined operation of s.425(2)(b) and (3) of the Migration Act is that the applicant was not entitled to appear before the Tribunal: Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152; (2006) 154 FCR 572; (2006) 236 ALR 294; (2006) 94 ALD 23 at [64] per Spender, French and Cowdroy JJ; SZIMG v Minister for Immigration & Citizenship [2008] FCA 368; (2008) 167 FCR 362; (2008) 100 ALD 553 at [21] per Rares J.
The applicant’s assertion that the Tribunal failed to have regard to his claims is without substance. As can be seen from the Court’s summary of the AAT Decision set out at [4] above, and otherwise from a reading of the AAT Decision at CB 79-84, the AAT considered each of the applicant’s claims. The AAT was not, however, satisfied on the available material, and in circumstances where the applicant declined to attend a hearing before it, that he met the refugee or the complementary protection criteria: CB 84 at [41]-[42]. The case for the applicant rises no higher therefore than a request for impermissible merits review, contrary to Wu Shan Liang.
To the extent that ground 8 alleges a failure by the AAT to consider the applicant’s claims it is not made out, and establishes no jurisdictional error in the AAT Decision.
Ground 8 otherwise and ground 9
Insofar as grounds 8 otherwise and 9 relate to the AAT Decision, they constitute nothing more than an impermissible request for the Court to engage in merits review based on the applicant’s dissatisfaction with the AAT’s findings (and especially ground 9 in that regard): Wu Shan Liang & Ors at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Grounds 8 and 9 do not establish jurisdictional error in the AAT Decision.
Ground 10
Ground 10 of the Judicial Review Application is a prayer for relief, and does not allege jurisdictional error, let alone establish it.
Conclusion and orders
The Court has concluded that the AAT’s findings were open to it on the available material for the reasons it gave, and the AAT Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
It follows that the applicant must pay the Minister’s costs, which are sought in the amount of $5,800, and must do so in that amount by 26 July 2017. There will be an order accordingly.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 27 June 2017
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