BFE15 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

BFE15 v Minister for Home Affairs [2019] FCA 414

Appeal from: BFE15 v Minister for Immigration & Anor [2018] FCCA 539
File number: VID 354 of 2018
Judge: MOSHINSKY J
Date of judgment: 26 March 2019
Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – protection visa – whether the Administrative Appeals Tribunal erred in respect of the appellant’s explanation about how and why wrong information was contained in his protection visa application – whether the Tribunal breached s 424A of the Migration Act 1958 (Cth) – appeal dismissed
Legislation:

Migration Act 1958 (Cth), ss 45AA, 416, 424A, 425

Migration Regulations 1994 (Cth), reg 2.08F
Cases cited:

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

BFE15 v Minister for Immigration and Border Protection (2016) 309 FLR 352

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154

SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562

SZTNL v Minister for Immigration and Border Protection (2015) 231 FCR 204
Date of hearing: 9 November 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 53
Counsel for the Appellant: Ms GA Costello
Solicitor for the Appellant: Clothier Anderson & Associates
Counsel for the First Respondent: Ms C Symons
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

VID 354 of 2018
BETWEEN:

BFE15

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MOSHINSKY J

DATE OF ORDER:

26 MARCH 2019

THE COURT ORDERS THAT:

1.The appellant have leave to amend his notice of appeal to the form of the amended notice of appeal filed on 25 October 2018.  The notice of appeal be treated as so amended.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4.Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

5.In the absence of any agreement:

(a)within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

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Details
Case
[2019] FCA 414
Decision Date

CaseChat Overview and Summary

In BFE15 v Minister for Home Affairs, the appellant, a Malaysian citizen, challenged the Federal Circuit Court of Australia's decision to dismiss his appeal against the refusal of his application for a protection visa. The appellant arrived in Australia using a forged passport and applied for a protection visa on the basis of his conversion from Sunni to Shia Islam, claiming persecution in Malaysia due to this conversion. The Administrative Appeals Tribunal (AAT) had previously upheld the Minister's decision to refuse the visa, and the appellant sought to appeal this decision on the grounds that the AAT had erred in its assessment of his explanation regarding the inaccuracies in his initial visa application.

The court was tasked with determining whether the AAT had erred in its handling of the appellant's explanation for the incorrect information in his application and whether the AAT had breached section 424A of the Migration Act 1958 (Cth). The court examined the appellant's assertions that the incorrect information stemmed from his confusion and stress during his initial interview, compounded by the actions of his migration agent, who allegedly failed to accurately capture his claims. The court considered the appellant's statutory declaration, in which he provided corrections and clarifications to the information given during his initial interview and application process.

In dismissing the appeal, the court found that the AAT had not erred in its consideration of the appellant's explanations. The court held that the appellant had not demonstrated that the AAT's decision was flawed, as the AAT had appropriately weighed the appellant's explanations and the credibility of his claims. The court also found that the AAT had not breached section 424A, as the AAT had properly considered the appellant's explanations and the overall context of his application. Consequently, the appeal was dismissed, and the appellant was ordered to pay the Minister's costs of the appeal. The court further directed that the parties should propose agreed minutes of orders for the lump sum costs, with a process for determining the costs if the parties could not agree.

Orders

Orders of the court

1. The appellant have leave to amend his notice of appeal to the form of the amended notice of appeal filed on 25 October 2018. The notice of appeal be treated as so amended.

2. The appeal be dismissed.

3. The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4. Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

5. In the absence of any agreement:

(a) within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b) within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c) in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, neither ground in the amended notice of appeal is made out. It follows that the appeal is to be dismissed.Background facts The appellant arrived in Australia on 7 April 2014 using a Malaysian passport that he had purchased and which was a forgery. On arrival, the appellant attended an interview during which he acknowledged having purchased a forged passport. In the course of the interview, the appellant also provided an explanation as to why he had decided to leave Malaysia. He said that he had been raised as a Sunni Muslim but had converted to Shia Islam. The appellant said that, after declaring his conversion, he was subjected to threats, including an assassination attempt by passing motorcyclists, but that fortunately he had not been hit by the shot. Despite informing police of his position, they had taken no action. He also said that his friends and relatives had disowned him. On 20 August 2014, the appellant applied for a Protection (Class XA) visa. By operation of s 45AA of the Migration Act and reg 2.08F of the Migration Regulations 1994 (Cth), with effect from 16 December 2014, the application was taken to be an application for a Temporary Protection (Class XD) visa. In his application for a protection visa, the appellant referred to his conversion from Sunni to Shia in March 2010. The appellant claimed that he had disclosed the fact of his conversion to a childhood friend who had become the Mufti of a local Sunni mosque. The appellant claimed that his conversion to the Shia faith had become widely known despite his desire to maintain privacy about the matter. The appellant’s protection visa application had an annexure in which additional claims were made. The appellant appointed a migration agent and attended an interview with a delegate of the first respondent (the Minister). The appellant’s migration agent provided the delegate with a submission which restated and expanded upon the matters on which the appellant had relied in making his application for a protection visa. On 18 November 2014, the delegate made a request for the provision of detailed information by the appellant. The appellant responded to that request progressively. On 17 December 2014, the delegate refused the application for a protection visa. Although the legislative and regulatory changes referred to in [7] had come into effect, the delegate’s refusal was expressed in terms of a refusal to grant a Protection (Class XA) visa, rather than a Temporary Protection (Class XD) visa. The appellant applied to the then Refugee Review Tribunal for review of the delegate’s decision. On 12 June 2015, the Refugee Review Tribunal in substance affirmed the decision of the delegate to refuse the application for a protection visa. The decision of the Tribunal was to set aside the decision refusing the grant of a Protection (Class XA) visa and to substitute a new decision refusing the grant of a Protection (Class XD) visa. This decision was the first of two tribunal decisions in relation to the appellant’s application for a protection visa. I will refer to the Refugee Review Tribunal that made this decision as the First Tribunal and its statement of decision and reasons as the First Tribunal Reasons.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For these reasons, ground 2 is not made out.Conclusion It follows that the appeal is to be dismissed. At the hearing, both sides accepted that costs should follow the event. Accordingly, I will also make an order that the appellant pay the Minister’s costs of the appeal, to be fixed by way of a lump sum.

Ratio Decidendi

Legal Principle Established

On 19 August 2016, the appellant submitted to the Tribunal a statutory declaration dated 19 August 2016 (the August 2016 Statutory Declaration) in which he made clarifications or corrections to certain information that he had provided earlier. He also provided additional information in relation to his visa application. The clarifications or corrections included the following:(a)The appellant stated that his correct name was not the name he had provided during his entry interview. The appellant explained that the name he had originally provided was a family caste name.(b)He stated that his entry interview record stated that he departed Pakistan in approximately March 2014. He stated that he had since corrected this mistake and informed the Department of Immigration and Border Protection (the Department) and the Tribunal that he departed Pakistan for Malaysia in 2012. He explained that he was scared and confused during his entry interview.(c)He stated that his entry interview recorded that an assassination attempt against him occurred at the end of 2012. He stated that that was incorrect and the incident in fact happened in 2011. He explained that the error was caused by his stress in the interview.(d)He stated that his protection visa application (submitted in August 2014) had been completed while he was in immigration detention. He stated that he was assisted by a registered migration agent and the application did not accurately represent his claims.(e)He stated that: while in immigration detention he became friendly with a Punjabi Indian man; after he obtained his visa and was released from immigration detention, he called the appellant and provided details of the registered migration agent he had used; the appellant contacted that agent and asked him to represent the appellant; the appellant obtained a loan from Pakistan to pay an upfront fee to the agent; despite contacting the agent repeatedly (by telephone and email), the agent did not come to meet with the appellant and he received no paperwork; the appellant obtained an extension of time from the Department to lodge a protection visa application; the next day, the agent sent the appellant pre-filled papers to sign; and although the appellant had told the agent his story and his claims, the written information was incorrect. The appellant stated that, in particular, the agent made reference to an incident in February 2012 when many Shia pilgrims were killed, but that incident was not connected with the appellant’s claims. The appellant stated that: he told the agent that the information about his reasons for applying for a protection visa was incorrect; and the agent said that is “no problem” and he should sign it and correct it at a later date. The appellant stated that he did not read the whole of the form before he signed it.(f)The appellant explained that he was under time pressure to submit the application and believed the agent’s advice that it was important to submit the form on time and that he would have the opportunity to state his true claims later.