BEH15 v Minister for Immigration

[2017] FCCA 3248

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEH15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3248

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – no procedural unfairness to the applicant for the Tribunal’s decision not to listen to the sound recording – the Tribunal complied with its statutory obligations in the conduct of the review – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438, 476

Applicant: BEH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2012 of 2016

Judgment of: Judge Street

Hearing date: 20 December 2017

Date of Last Submission: 20 December 2017

Delivered at: Sydney

Delivered on: 20 December 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2012 of 2016

BEH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision the Administrative Appeals Tribunal (“the Tribunal”) made on 30 June 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Jordan and his claims were assessed against that country. The applicant lodged an application for a Tourist Stream Offshore FA 600 visa on 25 April 2013. The applicant was granted a subclass 600 visa on 30 May 2013. The applicant arrived in Australia on 22 June 2013. The applicant then lodged an application for protection on 31 July 2013.

3. The delegate on 24 June 2014 found the applicant failed to meet the criteria for the grant of a protection visa under the Act. A differently constituted Tribunal affirmed the decision of the delegate on 22 May 2015. That decision of the Tribunal was set aside by consent orders made on 12 October 2015 remitting the matter for further consideration before a differently constituted Tribunal.

The current Tribunal’s decision

Section 438 certificates

1. The current Tribunal had before it a certificate under s 438 of the Act dated 19 October 2015 and an earlier certificate that had been before the earlier differently constituted Tribunal dated 24 June 2014. The documents the subject of the certificates are in evidence before the Court. The documents do not undermine, negate or contradict the applicant’s claims and were not relevant to the issues the subject of review in respect of the applicant’s claims. The documents cannot be said to be credible, relevant and significant.

2. The certificates and the documents the subject of the certificates were not disclosed to the applicant in the course of the hearing. The non-disclosure of the certificates and the documents the subject of the certificates did not in the present case give rise to any practical injustice as the documents were not credible, relevant or significant to the issues in respect of their review. The applicant was not denied procedural fairness in the conduct of the review by the current Tribunal in the present circumstances as the documents were not relevant and were not acted upon by the Tribunal.

Hearings

1. The Tribunal invited the applicant to attend two hearings to give evidence and present arguments. The first hearing occurred on 1 March 2016 and the second hearing occurred on 29 June 2016. The transcripts of those hearings have been tendered in evidence. It is apparent that the issue of the applicant’s credibility was raised in the course of those hearings. This is a case where the delegate also made adverse credibility findings in relation to the applicant’s claims.

2. The applicant is a Sunni Muslim who allegedly worked as a military officer and his mother was of Palestinian descent. The applicant claimed that after completing the compulsory period of military service he volunteered to join the Jordanian military. The applicant alleged that incidents occurred in the course of his service in the military by reason of which he was tried and imprisoned effectively for failing to follow orders. The applicant alleges that in February 2013 he was then transferred from the military to the military fire brigade.

3. The applicant claimed to fear harm by reason of his Palestinian heritage as well as by reason of an imputed political opinion arising from the incidents that occurred during his military service. The applicant claimed to fear harm that there was a military warrant issued for him and if he was returned to Jordan he would be tried and given a five year sentence in military detention. The applicant claimed that he would be subject to mistreatment on the basis of his refusal to undertake military duties and his political views in light of his Palestinian ethnicity and previous military record.

4. The Tribunal considered that arguments provided by the applicant relating to conscription in Jordan did not support his claims to have been subject to a compulsory period of military service from 2008 to 2010. The Tribunal was concerned that entire copies of extracts of Jordanian law regarding conscription were not produced and considered the applicant’s explanations that the legislation was classified to be unconvincing. The Tribunal considered two pieces of legislation provided by the applicant to be inconsistent. The Tribunal referred to DFAT information that there was no compulsory conscription in Jordan.

5. The Tribunal found that civil conscription was introduced in 2007 but found it was unclear whether it was enforced. The Tribunal found consistent country information that conscription, when introduced, only applied to males born after 1989 and the Tribunal concluded that the applicant was not subject to compulsory conscription.

6. The Tribunal raised concerns in respect of a number of inconsistencies in the applicant’s evidence. The first inconsistency in relation to the dates upon which he had been detained by the army, inconsistencies about the length of time for which he had been detained in August 2012 and the inconsistencies regarding raising for the first occasion at the second hearing that he had a military passport and that this was the reason he was able to travel to Australia.

7. The Tribunal found the applicant’s evidence to be generalised, speculative and exaggerated and concluded that his evidence relating to the army and the fire brigade service were unsatisfactory. The Tribunal placed no weight on the documents purporting to be from the Jordanian Government or other authorities, finding the applicant’s case and credibility had been so poisoned beyond redemption that it could not be satisfied with the corroborative evidence. The Tribunal was not persuaded that the documentary material relied on by the applicant should be preferred to the DFAT information. The Tribunal concluded that various articles and legislation submitted by the applicant were fabricated for the purpose of improving the applicant’s application for protection.

8. Based on the adverse credibility findings the Tribunal rejected the totality of the applicant’s claims. The Tribunal did not accept the applicant served in the Jordanian army and therefore did not accept the applicant had a well-founded fear on the basis of being an army deserter. The Tribunal did not accept the applicant faces a real chance of suffering serious harm for any of the reasons claimed. The Tribunal had regard to its anterior findings and was not satisfied there was a real risk the applicant would suffer significant harm if he returned to Jordan for any of the reasons claimed and accordingly, affirmed the decision under review.

Before this Court

1. The grounds in the application are as follows:

   l. The Tribunal failed to comply with its obligations under s359(1) of the Migration Act by failing to have regard to information provided by the applicant and thus in making its decision the Tribunal exceeded its jurisdiction or committed a jurisdictional error.

   Particulars

   a) The Tribunal was provided an opportunity to listen to a sound recording at [121] which addressed the issues of concern the Tribunal had with the evidence provided by the applicant at the 1 March 2016 hearing.

   b) In considering whether the applicant was a credible witness, the Tribunal disregarded he opportunity to listen to the recording which could have addressed the concerns the Tribunal had with the applicant's evidence.

   2. Further or in the alternative, the applicant was denied procedural fairness as the Tribunal conducted itself in a manner that displays apprehended bias.

   Particulars

   a) The Tribunal made adverse findings against the applicant in paragraphs [125] to 128] of the decision based solely on its finding about the applicant's credibility after electing not to take up the opportunity to examine important information from the Applicant surrounding his evidence at the Tribunal [121]. It was the Applicant's evidence at Tribunal from which the findings on credibility were based.

   b) The determinations in paragraphs [125] to 128] of the decision relate to material information relevant to the assessment of the applicant's claim for protection. Therefore, the applicant ought to have evidence about such information reviewed by the Tribunal.

   c) By refusing to listen to the applicant's sound recording and thereby taking in the information contained in those recordings into deliberation when determining the Applifant's status as a credible witness, the Tribunal has manifested its bias against the applicant and pre-determined the applicant's case without a fair evaluation of all the materials before the Tribunal.

2. At the commencement of the hearing, the Court explained to the applicant that this is a final hearing to determine whether the Tribunal’s decision is affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair the application would be dismissed with costs.

3. The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. The applicant was given an opportunity to file an amended application, affidavit evidence and submissions. An affidavit was filed annexing the transcript of the hearing. No other document was filed.

The applicant’s submissions from the bar table

1. From the bar table, the applicant took issue with the adverse credibility findings made by the Tribunal. The applicant maintained that the documents he had provided were genuine and did not agree with the adverse findings made by the Tribunal. The Tribunal provided logical, rational and reasonable reasons in support of the adverse credibility findings. Those detailed reasons cannot be said to be irrational, illogical or unreasonable. Those adverse credibility findings were open to the Tribunal for the reasons given by the Tribunal. The applicant’s disagreement with the adverse credibility findings and disagreement with the Tribunal’s rejection of the applicant’s documents and the Tribunal placing weight on DFAT country information does not identify any jurisdictional error.

2. The applicant raised that the certificates that had been issued in the present case had not been disclosed to him. For the reasons already given, there was no denial of procedural fairness in the conduct of the review in the present case as the material the subject of the certificates were not relevant and the applicant suffered no practical injustice or denial of procedural fairness by reason of the non-disclosure of the certificates or the documents the subject of the certificates.

3. The applicant also referred to a report by a psychologist dated 6 November 2014 and suggested that it had not been taken into account. The Tribunal expressly referred to the psychologist’s report in its reasons. In substance, the applicant’s submissions from the bar table invited this Court to engage in impermissible merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration

Ground 1

1. In relation to ground 1, the Tribunal expressly referred to the applicant’s submissions in relation to the inconsistency in respect of the applicant’s evidence and the applicant’s assertions in relation to the interpreter and the invitation to listen to the sound recording. The Tribunal found it was not necessary to listen to the recording to determine that issue of inconsistency in relation to the 20 days. No procedural unfairness was occasioned to the applicant by reason of the Tribunal deciding for the reasons identified, not to listen to the sound recording.

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the applicant alleged that the adverse findings by the Tribunal and the Tribunal’s reasons identifying that it was not necessary to listen to the recording gives rise to apprehended bias. The adverse findings and the reasons given by the Tribunal for not listening to the sound recordings are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. On the material before the Court, the Tribunal conducted the review with an open mind capable of persuasion as to the merits. No case of bias is made out. Ground 2 fails to make out any jurisdictional error.

2. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  29 January 2018