BEL17 v Minister for Immigration and Border Protection
[2019] FCA 1325
•15 August 2019
FEDERAL COURT OF AUSTRALIA
BEL17 v Minister for Immigration and Border Protection [2019] FCA 1325
Appeal from: BEL17 v Minister for Immigration and Anor [2019] FCCA 409 File number: WAD 147 of 2019 Judge: MCKERRACHER J Date of judgment: 15 August 2019 Date of publication of reasons: 20 August 2019 Catchwords: MIGRATION - appeal from the Federal Circuit Court of Australia - where the primary judge dismissed the appellant’s application for judicial review of the Administrative Appeals Tribunal’s decision affirming the decision not to grant the appellant a protection visa - no error demonstrated - no failure to consider a relevant consideration
Held: appeal dismissed
Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s 79(3
Federal Circuit Court Rules 2001 (Cth) r 21.10(a)
Date of hearing: 15 August 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 27 Counsel for the Appellant: The Appellant appeared in person, with the assistance of an interpreter Counsel for the First Respondent: Ms M Jackson Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to the question of costs ORDERS
WAD 147 of 2019 BETWEEN: BEL17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
15 AUGUST 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REVISED FROM THE TRANSCRIPTMCKERRACHER J:
This is an appeal from a decision of a judge of the Federal Circuit Court of Australia delivered on 21 February 2019. In that decision, the Federal Circuit Court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 16 February 2017. The Tribunal had affirmed a decision of a delegate of the first respondent, the then Minister for Immigration and Border Protection, made on 8 May 2015, not to grant the appellant a temporary protection visa.
The appellant arrived by boat in Darwin, Australia, two years before, in April 2013. On 16 June 2014, he applied to what was then the Department of Immigration and Citizenship, for a protection (class XA) visa and attended an interview on 16 October 2014 with a departmental officer. On the same date, following amendments to the legislation, his application converted to an application for a temporary protection visa.
On 8 May 2015, the delegate refused to grant the appellant a temporary protection visa and very shortly after that, on 14 May 2015, the appellant applied to the Tribunal to review the delegate’s decision.
He appeared before the Tribunal to give evidence and to present his arguments. He was assisted, on that occasion, by an interpreter, and also by a registered migration agent who participated in the hearing by telephone.
On 12 October 2016, the Tribunal received further written submissions from the representative of the appellant, but on 16 February 2017 (in a 26 page decision, including annexures), the Tribunal affirmed the decision of the delegate not to grant the appellant a temporary protection visa. He was advised of that decision by letter of the following day, and about a month later, commenced proceedings in the Federal Circuit Court within time, seeking judicial review of the Tribunal’s decision.
The essence of that application, which reflects many of the matters raised today by the appellant, was that the decision-maker did not consider all of the evidence or did not take into account relevant considerations. This unparticularised ground fell for consideration first by a Registrar of the Federal Circuit Court in May 2017, who made orders to prepare the matter for hearing, including orders that the appellant file any amended application, any affidavit on which he proposed to rely and to file written submissions 42 days before the hearing. In December 2018, a hearing was fixed by a judge of the Federal Circuit Court for hearing in February 2019. No amended application, affidavit or submissions were filed and on 21 February 2019, the matter was heard before a judge of the Federal Circuit Court. At conclusion of the hearing, with oral reasons, the Court dismissed the application with costs fixed at $6000.
Again, within time, the appellant filed a notice of appeal to this Court. After the notice of appeal was filed, the primary judge published written reasons for his Honour’s judgment.
THE CLAIMS BEFORE THE TRIBUNAL
The appellant essentially claimed to fear harm from Vietnamese authorities for reasons of his Catholicism, being perceived to be anti-government, a visit to Yongah Hill Immigration Detention Centre by Vietnamese officials known as the ‘A18’, the Department’s data breach, his illegal departure from Vietnam and his status as a failed asylum seeker. These claims were dealt with by the Tribunal at a hearing and in a 26-page decision, including some annexures. However, the Tribunal reached the conclusion that the appellant was not a credible witness in significant aspects of his claims. The Tribunal concluded that his evidence was unreliable and that he had embellished, exaggerated or otherwise fabricated critical elements of his claims.
The Tribunal did accept some aspects of the appellant’s claimed history. The Tribunal accepted that he was born into a Catholic family and was a church attender, but it did not accept that he held a high profile, a prominent role, or was anything more than an active member of the congregation. The Tribunal also rejected the appellant’s claim that he had been arrested, detained, or mistreated for reasons of his Catholic association. The Tribunal had regard to country information and found that the appellant had not been prevented from following his Catholic faith and would not be prevented from doing so in the foreseeable future.
The Tribunal did not accept that the appellant was detained and mistreated by Vietnamese authorities, or that he was of any ongoing interest. The Tribunal did not accept that the appellant had been engaged in anti-government activities or that he had had an imputed profile as a prominent activist.
The Tribunal found that the appellant’s details had not been provided to the ‘A18’ delegation, therefore, he did not face a real chance of harm as a consequence.
The Tribunal did not accept that the appellant would face harm as a consequence of the data breach.
The Tribunal did not accept that the appellant faced a real chance of serious harm for reasons of departing Vietnam in a manner contrary to the requirements of domestic law, for having travelled to and spent time in a western country, or for returning as a failed asylum seeker. The Tribunal rejected the claim that the appellant would be charged under the Vietnamese penal code for opposing the government, it did not consider the appellant would attract dissident status.
Assessed individually and cumulatively, the Tribunal considered that the appellant did not face a real chance of harm on the basis of the claims advanced. It concluded that the appellant did not attract Australia’s protection obligations, nor satisfied the complementary protection criterion.
IN THE FEDERAL CIRCUIT COURT
As noted, in the Federal Circuit Court, the appellant advanced one unparticularised ground of review as to a failure to consider all of the evidence, or a failure to take into account relevant considerations. As I have indicated, there was no amended application, affidavit, evidence, or submissions filed. Only oral submissions were made in the Federal Circuit Court by the appellant. He contended that he would be exposed to harm if returned to Vietnam and that he disagreed with the adverse credibility findings of the Tribunal. He otherwise indicated that he wished to remain in Australia.
Those matters have been repeated by the appellant in submissions before me today.
The primary judge dealt with the ground of review succinctly. His Honour held that there was no evidence identified that the Tribunal had failed to consider a relevant consideration that it ought to have taken into account. His Honour said that on the face of the material, the Tribunal had correctly identified the appellant’s claims and made dispositive findings in respect of them. His Honour concluded that the Tribunal had complied with its statutory obligations in respect of the review.
IN THIS COURT
The grounds before me today are more expansive, but in substance, are very similar. There is, in substance, a complaint about a failure to consider all of the claims, although I stressed to the appellant that the role for this Court was to hear argument and determine it in relation to error on the part of the Federal Circuit Court, if any. Primarily, the appellant was concerned with a failure by the Tribunal, or the Federal Circuit Court, to consider and agree with the matters that he had raised.
In relation to the first ground of appeal, the appellant orally repeated the points as to a failure to properly consider the persecution that he would suffer if returned to Vietnam. He repeated reliance upon the data breach. He expressed his fear that he would be beaten or imprisoned. He stressed that he wanted to be free to practice his Catholic faith and that he would not have freedom of movement in Vietnam. He said that he would be unable to get his personal documentation. He indicated that some matters which he had raised before the Tribunal had not been considered by the Federal Circuit Court. He said that there was a failure to refer to the authoritarian nature of the government, including a failure to consider the consequences from such a government on his return.
He made further submissions that since he had arrived in Australia, his ‘eyes had been opened’. He had been able to participate in activities which would enable him to be a better person. He was grateful for the opportunity that had been afforded to him by Australia and grateful to the assistance that he had received on his applications being considered. He urged the Court to be sympathetic and to allow him, as the leader of his family on whom the family placed hopes for the future, to be able to develop his life as a model citizen in Australia. I stressed again to the appellant that it was not open to this Court to do favours, but the task was to determine whether or not error was apparent or had been demonstrated in the judgment of the Federal Circuit Court.
It is necessary to consider in more detail, the grounds upon which the appellant relies on in relation to the Federal Circuit Court judgment.
The essence of the first ground of appeal was that the appellant did not have an opportunity to present his case before the Federal Circuit Court, amounting to a denial of procedural fairness. There is nothing to suggest that the procedures adopted by the Federal Circuit Court or by the primary judge were anything other than fair and appropriate. The process of the Federal Circuit Court was explained to the appellant at the commencement of the hearing. The reasons of the primary judge indicate that he had an opportunity to advance oral submissions. He declined to avail himself of opportunities to present his case prior to the hearing in a remodelled way, or assisted by affidavits or other submissions. There is nothing to indicate a denial of procedural fairness and this ground cannot succeed.
As to the second ground of appeal, which was a failure to give written reasons, there is little doubt that in an application such as that before the Federal Circuit Court reasons for a decision should be given as a normal incident of the judicial process. That does not mean that lengthy or elaborate reasons are necessary in every case. What is essential is that the fundamental grounds on which the decision rests be articulated with clarity, they must indicate to the parties why the decision was made so as to enable the parties to exercise any rights that may be available in respect of such a decision.
The ex tempore reasons of the primary judge were succinct, but they were sufficiently detailed in the circumstances (given the ground raised) and set out the essential basis on which the ground of review was not established. In addition to those reasons, written reasons supplemented the oral reasons and were provided shortly after. For that reason, the second ground of appeal cannot succeed.
As to the third ground of appeal, the contention is that the Federal Circuit Court did not consider the evidence that the appellant would be harmed if returned to Vietnam. This ground misunderstands the task of the Federal Circuit Court. The primary judge correctly understood his task was to ascertain whether the decision of the Tribunal was affected by jurisdictional error. The ground advanced is misconceived, and cannot succeed.
The fourth ground of appeal pertains to costs. Although it was not specifically addressed orally today, it is self-explanatory in that the appellant says that he cannot pay those costs. Costs, as a general rule, follow the event and there is no provision in the Migration Act 1958 (Cth), which fetters the Court’s jurisdiction to award costs. The amount of costs specified was determined in accordance with s 79(3) of the Federal Circuit Court of Australia Act1999 (Cth), which leaves costs in the discretion of the Court. That discretion is unfettered, save that it must be exercised judicially. Rule 21.10(a) of the Federal Circuit Court Rules 2001 (Cth) provides that a party is entitled to costs in accordance with the Pt 1 and Pt 2 of Sch 1, pursuant to which the relevant scale at the time was $7328. The costs for migration proceedings are conducted in accordance with that scale. The costs were fixed at a figure lower than the maximum under that scale. This was properly within the discretion of the Court. There is nothing to indicate that the costs were excessive.
As those grounds of appeal and any other grounds advanced today have not succeeded, the appeal must be dismissed with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 20 August 2019
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