BKC16 v Minister for Immigration
[2018] FCCA 360
•7 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKC16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 360 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – non disclosure of certificate issued under s.438 of the Migration Act – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425A, 426A, 438, 476 Migration Regulations 1994 (Cth), Schedule 2 |
| Cases cited: AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 CKG15 vMinister for Immigration and Border Protection [2017] FCCA 938 Minister for Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 |
| Applicant: | BKC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1199 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 7 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 7 February 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor acting as Counsel for the First Respondent: | Mr Grant |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1199 of 2016
| BKC16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application for judicial review filed by the Applicant on 8 June 2016. By that application, the Applicant sought judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 19 May 2016 to affirm a decision of a delegate of the First Respondent not to grant him a protection (Class XA) visa (‘the visa’). At the time of the filing of his application for judicial review, the Applicant also filed an affidavit affirmed by him on 8 June 2016 to which he annexed the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’).
By orders made by Registrar Buljan on 9 November 2016 the Applicant was required to file any amended application and his written submissions on or before 10 January 2018. The Applicant did not amend his application, and prior to today’s hearing he did not file nor serve any written submissions. At the commencement of the hearing this day, he handed to the Court a letter written to the Court of approximately two pages, wherein he restated factual matters pertaining to his time in Australia, including that he had separated from his wife in 2016. He indicated in submissions to the Court, that since his arrival in Australia in August 2008, he has not returned to India. The Applicant also requested that the Court give consideration to the granting to him of a visitor's visa on the hearing of his application.
The grounds of application are 11 in number, and to the extent that the Applicant seeks review of the decision of the delegate of the Minister of Immigration and Border Protection (‘the Minister’), the Court has no jurisdiction, as the delegate’s decision is a “primary decision”.[1]
[1] Migration Act 1958 (Cth) ss. 476(2)(a), 476(4).
Otherwise, the grounds are a statement of the factual history of the Applicant following his arrival in Australia and are in the nature of submissions which do not seek to identify any jurisdictional error in the Tribunal decision, but seek impermissible merits review of the type described in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.
None of the alleged grounds of the application for judicial review are particularised. Insofar as those grounds could be said to seek to establish that the Tribunal applied the wrong legal test, those grounds are not made out.
Insofar as the Applicant could be said to make a claim (which I do not find on the material) that the Tribunal had denied him procedural fairness, then that ground likewise cannot be made out at this hearing.
Background
The Applicant is a citizen of India. He was born in Punjab on 17 May 1988. He identified his ethnicity as “Jatt” and his religion as Sikhism. He can speak, read and write Punjabi and English and speak and write Hindi. He claimed before the Tribunal to have married an Australian in Melbourne on 12 July 2012.
The Applicant’s visa history is set out in the delegate’s decision as contained in the Court Book, the material in the Court Book being evidence before the Court.
On 6 June 2008, the Applicant submitted an application for a (Class TU) (subclass 572) student visa. That visa was granted on 22 July 2008 and was valid until 30 December 2010.
On 21 December 2010, the Applicant submitted a (Class TU) (subclass 572) onshore student further stay visa. On 5 July 2012, the Applicant’s visa application was refused and the Applicant did not seek review of the refusal decision to the then Migration Review Tribunal (‘MRT’).
On 2 August 2012, the Applicant submitted three applications for a Partner (Class UK) (subclass 820) (partner visa) and Partner (Class BS) (subclass 801) visa. Two applications were deemed invalid and the third application was deemed valid, after the Applicant was asked to provide his signature again, as his signature did not match his signature on his passport.
On 2 April 2013, the Applicant’s partner visa application was refused by a delegate of the Minister. On 14 June 2013, the Applicant sought review of the decision to the MRT. On 6 March 2014, the MRT affirmed the delegate’s decision to refuse the Applicant a partner visa.
On 7 April 2014, the Applicant applied for Ministerial intervention, but was advised on 15 April 2014 that the request had not been successful. On 19 June 2014, a delegate of the Minister refused to grant the Applicant a Partner (Class BS) (Subclass 801) visa due to the refusal of his application for the partner visa. The Applicant applied to the MRT for review of the 19 June 2014 decision refusing to grant him a Partner (Class BS) (Subclass 801) visa, but on 5 December 2014, the Tribunal found that it did not have jurisdiction to hear the application for review as it had been lodged out of time.
On 23 December 2014, the Applicant applied for a Protection (Class XA) visa. The Applicant’s claims for protection were set out in his visa application. The Applicant claimed to be from the Punjab region in India and stated that after arriving in Australia he had fallen in love with an Australian girl whom he eventually married. He claimed that when he told his parents they were furious as they did not want him to marry a non-Sikh girl and his father told him he would be “dealt with.” The Applicant claimed he will be harmed by his own family if he returns to India, including being beaten, tortured or kidnapped. He also claimed to fear harm from unspecified human rights abusers and that his wife would also be harmed if she goes back to India with him.
On 21 October 2015, a delegate of the Minister refused to grant the Applicant a protection visa. The delegate found that the Applicant’s claims were not credible or genuine, noting that they lacked detail or were unsubstantiated and that the Applicant had failed to seek protection within a reasonable time; had not inquired about the progression of his application; and had not sought an interview to discuss his claims. The delegate reached a positive state of disbelief in relation to the Applicant’s claims, finding that his visa application had been submitted for the purposes of delaying his stay in Australia.
On 3 October 2015, the Applicant applied to the Tribunal for review of the delegate’s decision. The Applicant provided his email address for correspondence, as well as his mobile phone number.
On 31 March 2016, the Tribunal sent a letter to the Applicant at his provided email address advising him that it had considered all of the material before it, but it was unable to make a favourable decision on that information alone.
The Tribunal invited the Applicant to appear before it to give evidence and present arguments relating to the issues in his case. The date of hearing was scheduled for 13 May 2016. The Applicant was advised, relevantly:-
“…If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.”
On 10 May 2016, the Applicant forwarded an email to the Tribunal from a Mr Manpreet Singh, on the Applicant’s behalf, requesting an adjournment of the hearing as the Applicant was “facing some problems and going through depression.” The Applicant attached a medical certificate from his doctor and requested more time so that he could prepare for the hearing. The medical certificate was dated 9 May 2016 and said, relevantly, as follows:-
“To whom it may concern [the Applicant] is a patient at this practice who is currently seeing me for his depression. It is in my opinion that it would be beneficial if he can defer his interview currently as he needs some time to recover. If there are any concerns, please feel free to contact me.”
On 11 May 2016, the Tribunal sent an email to the Applicant requesting a detailed report about his medical condition together with advice as to:-
“…how your condition prevents you from attending the Tribunal to provide oral evidence on 13 May 2016 and if the postponement is granted, how much time would you like before the next hearing is scheduled.”
On 12 May 2016, the Applicant forwarded, via the apparent agency of Mr Manpreet Singh, a further email to the Tribunal attaching a further medical certificate dated 11 May 2016, again, requesting that the hearing scheduled for 13 May 2016 be adjourned. The medical certificate of 11 May 2016 said, relevantly, as follows:-
“[The Applicant] is a patient who saw me in early February 2016 with symptoms of depression and had claimed that these symptoms had started early this year. He stated he is stressed from multiple different aspects in his life, mainly relationships with partners and family.
His main symptoms of his depression is feelings of worthlessness and hopelessness, anxiety, ruminations, consistently thinking and having severe stress to the point it is impacting his quality of life. He was referred to a psychologist but decided not to attend this because his symptoms were gradually improving with his life circumstances. Nevertheless, stressfull (sic) situations have the potential to worsen his depression.”
Later that same day, the Tribunal sent an email to the Applicant indicating that his request for an adjournment was refused, as the medical certificate provided did not indicate that the Applicant would be unable to provide oral evidence at the hearing.
On 6 May 2016 and 12 May 2016, the Tribunal sent SMS hearing reminders to the mobile telephone number provided by the Applicant on his review application.
On 13 May 2016, the Applicant did not appear at the scheduled hearing. On 19 May 2016, the Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa.
The Tribunal noted that the Applicant having failed to appear before it on the day and at the time and place of the scheduled hearing, was a sufficient circumstance pursuant to s.426A of the Migration Act 1958 (Cth) (‘the Act’), for the Tribunal to determine to make its decision on the review without taking further steps to enable the Applicant to appear before it.
The findings of the Tribunal are accurately set out in the First Respondent’s submissions. I adopt those here as follows:-
“18. The Tribunal found that the applicant had provided “very little detail” about his relationship and marriage to Ms X and, that he had not provided any evidence to confirm that they were married. On the limited evidence before it, the Tribunal was not satisfied that the applicant was married to Ms X.
19. The Tribunal noted that even if it accepted that the applicant was married to Ms X, it was not satisfied, due to the paucity of information provided, that the applicant’s family knew about the marriage or that they disapproved of it.
20. Having regard to its findings above, the Tribunal was not satisfied that the applicant faced a real chance of serious harm, including being beaten, tortured or kidnapped, by his family members for reasons of religion or membership of a particular social group, or for any other reason.
21. Having regard to the limited evidence before it, the Tribunal was not satisfied that the applicant would face any human rights abuses on return to India.
22. Due to the lack of evidence before it, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution as required by s 5J of the Act, and therefore concluded that the applicant did not meet the criteria for the grant of the visa at ss 36(2)(a) of the Act.
23. It also found that, due to the limited evidence before it, it was not satisfied that there was a real risk that the applicant would face significant harm on return to India, and therefore concluded that the applicant did not satisfy the complimentary protection criteria at s 36(2)(aa) of the Act.”
Consideration
The Tribunal complied with the requirements of s.425A of the Act. Having complied with the legislative requirements to invite the Applicant to a hearing and the Applicant having failed to attend, the Tribunal’s power to proceed as it did pursuant to s.426A of the Act was enlivened.[2]
[2] SZIGQ & Anor v Minister for Immigration & Citizenship& Anor [2007] FCA 328 , 5.
As submitted by the First Respondent, it is well established that the Tribunal’s exercise of a statutory discretion, such as the one in s.426A, must be reasonable.[3]
[3] Minister for Immigration and Citizenship v Li [2013] HCA 18, 45.
The Court finds that the Tribunal’s exercise of its statutory discretion was, in the circumstances of this case, reasonable. There was nothing arbitrary, capricious, without common sense or plainly unjust.[4]
[4] Ibid 45.
The hearing invitation sent by the Tribunal to the Applicant was forwarded by email. It is obvious that the Applicant received that hearing invitation by virtue of his correspondence with the Tribunal thereafter. That correspondence, concerning the hearing date, time and place and the consideration of the Applicant’s adjournment request and subsequent refusal, made it clear to the Applicant that the scheduled hearing of 13 May 2016 would proceed. The Tribunal’s refusal to postpone the hearing was reasonable in the circumstances.
The further medical certificate provided by the Applicant did not indicate that the Applicant would be unable to provide oral evidence at the hearing. That decision did not lack “an evident and intelligible justification”.[5] The medical certificate provided in the first instance by the Tribunal did not set out how it was that the Applicant could not attend and participate effectively in the Tribunal hearing, and the Tribunal was justified in seeking a further medical report from the Applicant to address those issues.
[5] Ibid 35.
The Tribunal set out correctly the criteria for a protection visa as set out in s.36 of the Act and Schedule 2 to MigrationRegulations1994 (Cth) (‘the Regulations’) and applied the statutory framework as it was required to do. The Tribunal decision contains no error of law, and the findings made by the Tribunal were clearly open to it on the evidence before it. No procedural fairness was denied to the Applicant in any part of the process.
The First Respondent drew the Court’s attention to the Tribunal’s nondisclosure of a certificate issued under s.438 of the Act. On 21 October 2015, a delegate of the Minister issued a certificate under s.438 Act in respect of information in folios 84 and 85 of file number CLF2014/143353 (‘the certificate’). The certificate recorded that the information “was given [to] an officer of the department … in confidence” and that:-
“This information should not be disclosed to the applicant or the applicant’s representative because it contains confidential information relating to a person not included in the Protection visa application.”
The affidavit of Mr Grant affirmed 24 January 2018 addresses this issue and it was introduced into evidence and relied upon by the First Respondent in the proceedings. Annexed to that affidavit is the material the subject of the certificate. It comprises screenshots from the Department’s computer records, comprising a “client detail” page and “contact list” for a third party. Any identifying information pertaining to that third party is redacted.
The information relevant to the Applicant are the handwritten notes recording that the third party had paid for the Applicant’s visa application and that the third party’s residential address was the Applicant’s address. Neither the certificate nor the material covered by it were put to the Applicant by the Tribunal. The First Respondent submits however that no jurisdictional error follows from the Tribunal’s failure to do so.
The First Respondent submits that the present case is to be distinguished from MZAFZ v the Minister for Immigration and Border Protection [2016] FCA 1081 and that this is not a situation in which it is open for the Court to find that the Tribunal acted on the certificate in “some unspecified way”.[6] The Tribunal, in its Decision Record, did not state that it had regard to the whole of the Department’s file.[7]
[6] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081, 40.
[7] BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198, 17.
The Tribunal’s factual findings were clear and complete and based exclusively on the paucity of the information provided by the Applicant in support of those claims, as submitted by the First Respondent and accepted by the Court. The Tribunal was unable to proceed to a determination of the matter without inviting the Applicant to attend a hearing. The Tribunal issued such hearing invitation, but the Applicant elected not to attend the hearing and not to provide any further information to the Tribunal.
In these circumstances, the Tribunal could not reach the requisite level of satisfaction regarding the Applicant’s claims for the grant of the visa and said as much in its reasons, clearly expressed. The Tribunal did not act on the certificate and did not rely upon the material the subject of the certificate. The Court finds, in these circumstances, no breach of procedural fairness occurred.[8]
[8] CKG15 vMinister for Immigration and Border Protection [2017] FCCA 938, 98.
The First Respondent further submits that even if there were some technical breach of procedural fairness, which the Court finds there was not, relief should be refused in the exercise of the Court’s discretion, as the Applicant was not denied an opportunity that might have affected the outcome of his application for review. The material the subject of the certificate namely that a third party had paid for the Applicant’s visa application and shared an address with the Applicant, was simply not relevant to the Applicant’s claims.
The Court accepts that submission. It is not possible to see how those matters could have affected the assessment of the Applicant’s claims in any way. As was said by Barker J in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at paragraph 91, in the circumstances of this case:-
“No practical injustice is, on any view, identified.”
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 16 February 2018
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