FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGN19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1757 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant temporary protection visa – whether the Tribunal’s decision not to obtain evidence from the applicant’s father was legally unreasonable – whether the Tribunal made a finding that was legally unreasonable – whether Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36(2)(aa), 414, 426. |
| Applicant: | BGN19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 727 of 2019 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 20 June 2019 |
| Date of Last Submission: | 20 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Moutasallem |
| Solicitors for the Applicant: | Malik Lawyers |
| Solicitors for the Respondents: | Ms J Strugnell of Minter Ellison Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 727 of 2019
| BGN19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The principal question that arises on this application for judicial review is whether the second respondent (Tribunal), in the course of affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection visa (TPV), exercised unreasonably the power it has under s.426(3) of the Migration Act 1958 (Cth) (Act) by deciding not to obtain oral evidence from the applicant’s father.
To understand this, and the other questions that arise on this application for judicial review, it will be necessary first to set out the background preceding the applicant’s lodging an application for a TPV,…
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- Case
- [2019] FCCA 1757
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Tribunal’s decision not to obtain evidence from the applicant’s father was legally unreasonable, and whether the Tribunal made a finding that was legally unreasonable. The applicant also argued that the Tribunal failed to consider an integral part of his claims.
The applicant argued that the Tribunal breached section 426(3) of the Migration Act 1958 (Cth) by denying him procedural fairness and natural justice. This was because the Tribunal allegedly pre-determined the weight it would give to his father's evidence without first hearing from him. The applicant submitted that his father's evidence was highly relevant to key aspects of his claims, including the circumstances of his student visa application, the use of false documents, his involvement in the VDC, and the claimed kidnapping. The applicant further argued that the Tribunal acted unreasonably in declining to call his father, particularly given the inadequacy of the documentary evidence and the need to test the father's version of events. The court considered whether the Tribunal's consideration of the applicant's wishes to call his father was genuine and whether the decision not to call the father was legally unreasonable, referencing the principles established in *SZUIJ v Minister for Immigration and Border Protection*.
The court found no jurisdictional error. The Tribunal's assessment of the father's evidence, noting his involvement in arranging the student visa with false documentation, was not considered a pre-determination of credibility. The Tribunal was entitled to place little weight on the father's evidence as independent corroboration given these circumstances. The court concluded that the applicant was not denied a fair opportunity to present his case and that the Tribunal's decision was not legally unreasonable.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The applicant relies on three grounds of application contained in the further amended application. The first ground is as follows:The Tribunal committed a jurisdictional error by breaching s 426(3) of the Migration Act, or in the alternative was unreasonable in declining to call the father of the applicant.Particularsa)At [66] the Tribunal noted that the applicant had nominated his father to give evidence;b)At [66] the Tribunal noted that it decided not to call the father;c)At [66] the Tribunal said that it places little weight on the father’s evidence given the father’s involvement in arranging the applicant’s student visa which included the provision of false documentation;d)The Tribunal denied the applicant procedural fairness and natural justice by pre-determining the weight that it would give the father’s evidence without first hearing from him;e)The father’s evidence would have allowed the applicant to shed light on the circumstances of the provision of the false documents during the student visa application process; andf)The father’s evidence would have allowed the applicant to shed light on the extent of the father’s involvement in the [VDC]. The ground, as particularised, is directed to the Tribunal’s decision not to obtain evidence from the applicant’s father because, based on the applicant’s comment to the Tribunal that the applicant’s father arranged the student visa, including the provision of false documents, the Tribunal placed little weight on the father’s evidence as independent, reliable corroboration of the applicant’s claims. The ground makes two claims. The first is that the Tribunal breached s.426 of the Act because it denied the applicant procedural fairness and natural justice by pre-determining the weight that it would give the father’s evidence without first hearing from him. The second claim is that the Tribunal acted unreasonably “by declining to call the father of the applicant”. The applicant’s written submissions are broader than the ground as particularised. Relying on the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection,[46] the applicant submits that a decision by the Tribunal to decline to call a witness can be challenged by reference to s.426(3) of the Act, which involves a consideration of whether the Tribunal’s consideration of an applicant’s wishes were real and genuine, and by reference to legal unreasonableness.[47] The applicant then submitted as follows:[46] [2016] FCA 1574[47] Written Submissions of Applicant, [10]a)It ought to have been obvious to the Tribunal that the evidence of the applicant’s father would have been “highly relevant”.[48] There were “many matters” to which the applicant’s father’s evidence would have been relevant. These are the circumstances in which the student visa was obtained, including the use of false documents; the extent of the applicant’s involvement in the VDC; and the circumstances of the claimed kidnapping of the applicant.[49]b)By denying the applicant’s request to call evidence from his father the applicant was denied the opportunity to corroborate many of his key claims, or address some of the Tribunal’s concerns, or shed light on the circumstances of the use of the false documents the applicant used to be granted a student visa.[50]c)The Tribunal’s calling the applicant’s father would have been consistent with the purpose of s.426 of the Act, given that this was “clearly a case where the documentary evidence before the Tribunal was clearly inadequate and unsatisfactory”.[51]d)The factors on which Wigney J in SZUIJ relied for concluding that the Tribunal in that case did not act contrary to s.426 of the Act or otherwise act unreasonably are not present in the facts of the case before me.[52]e)In all the circumstances the applicant was not given a fair opportunity to present his case.[53]f)It “would not have been possible to reasonably assess the utility of the evidence of the father without having heard from him or have considered a statement where he indicate[d] what oral evidence he would be prepared to give”.[54]g)The applicant’s father’s credibility “was prematurely undermined” in circumstances where “fairness would have required the Tribunal to call the father and test his version”.[55]h)There is a “strong element of arbitrariness in being dismissive of a witnesses’ credibility without hearing from him or at least considering a written statement of the witness”.[56]i)The “manner in which the credibility of the father’s evidence was prematurely undermined at [66] of the Tribunal’s decision is particularly problematic”.[57] Fairness would have required the Tribunal to call the father “and test his version”, but the applicant was denied a fair opportunity to address the Tribunal’s concerns.[48] Written Submissions of Applicant, [14][49] Written Submissions of Applicant, [15][50] Written Submissions of Applicant, [16][51] Written Submissions of Applicant, [17][52] Written Submissions of Applicant, [18], [19][53] Written Submissions of Applicant, [20][54] Written Submissions of Applicant, [19],[20][55] Written Submissions of Applicant, [22][56] Written Submissions of Applicant, [23][57] Written Submissions of Applicant, [22]