Bke16 v Minister for Immigration
[2018] FCCA 3484
•30 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKE16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3484 |
| Catchwords: MIGRATION – Protection visa application – applicant held student visas from 2007 until 2010 – protection visa application lodged in 2015 – Tribunal found applicant not to be credible and to have fabricated claims – Tribunal allowed applicant additional time to supply further documents and submissions – applicant’s migration agent lodges one submission but no further documents – procedural fairness – legal unreasonableness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 424, 425, 425A, 427, 476 |
| Cases cited: Dissanayake v Minister for Immigration and Multicultural Affairs [2002] FCA 976 Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 VCAK of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 |
| Applicant: | BKE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1203 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 27 November 2018 |
| Date of Last Submission: | 27 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 30 November 2018 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor for the Respondents: | Ms Ward |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 8 June 2016 be dismissed.
The applicant pay the costs of the first respondent fixed at $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1203 of 2016
| BKE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 8 June 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 May 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).
Background
The applicant, an Indian national aged 33 years, first arrived in Australia on 30 April 2007. The applicant had held one or more student visas from the time of his arrival until 2010 when a student visa application was refused. He held no substantive visa from that time.
On 29 April 2013, the applicant applied for a Protection (class XA) visa. The applicant claimed to fear harm on the basis of his ethnicity, religion and imputed political profile. He claimed that he had been harassed and beaten and that his father and his family have been threatened, and that for those reasons, his father had sent him to Australia.
On 25 July 2013, the applicant was invited to attend an interview to discuss his visa application and claims for protection.
On 4 July 2014, a delegate of the Minister refused to grant the applicant a Protection visa. The delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa. Based upon country information, the delegate did not accept the applicant’s claim that Sikhs were persecuted in all parts of India or that he was unable to relocate.
On 6 August 2014, the applicant lodged an application with the then Refugee Review Tribunal for review of the delegate’s decision.
On 17 February 2016, the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments relating to the decision under review. The applicant attended the hearing on 17 March 2016 and was assisted by a Punjabi interpreter. He was represented at the hearing by his migration agent.
On the morning of the hearing, the applicant provided around 60 pages of articles and letters from third parties.
The applicant’s migration agent filed a submission dated 4 April 2016. The agent’s submissions addressed the question of relocation in the most general terms, advising that “there is evidence, Country Information, which clearly shows that Akali Dali, Mann members and supports are at risk in other parts of India.” The submission stated that it attached some documents said to be supportive of the claim to protection. No documents were attached to the submission.
In those circumstances the Tribunal wrote to the applicant on 14 April 2016, recording that he had supplied documents, noting that some of them were of no relevance to the issues arising in relation to the decision under review and afforded the applicant a further extension of two weeks within which to provide any further submissions, letters, articles, medical reports or other material in support of his case.
The applicant did not submit further documents within the two week extension that was allowed by the Tribunal.
By email dated 29 April 2016, the applicant’s migration agent wrote to the Tribunal stating he was unable to supply final documents and submissions due to a medical condition. The migration agent attached medical certificates relating to himself and certifying that he was unfit to work at that time. The agent stated that:
I have additional documents which should be received any day. But I will only finalise matters if my eyes stop hurting.
No further information was provided in relation to the applicant.
On 5 May 2016, the Tribunal made a decision affirming the decision of the delegate not to grant to applicant a Protection visa and provided a statement of reasons for its decision (Reasons).
Tribunal decision
The Tribunal found the applicant not to be credible. It rejected the applicant’s claims that he did not wish to remember past events on the stated basis that they were traumatic, noting that the first claim to trauma had been raised at the hearing. It noted the absence of any medical evidence to support the claim to trauma. It accepted that the applicant may have been nervous in attending the hearing and observed that this may have been understandable in circumstances where the applicant had not held a substantive visa for a considerable period: [77]-[79].
The Tribunal found that the applicant had fabricated his claims. In reaching that conclusion the Tribunal took into account the substantial inconsistencies in his written and oral evidence, the vagueness of his evidence and the substantial delay in lodging the protection application: [80]-[98]. It rejected the claim to having suffered harm at the hands of his father or grandfather: [99].
The Tribunal found that neither the applicant, nor any member of his family had ever been harassed, tortured, threatened, assaulted or that harm had been suffered to his family ‘structure’ including by reason of his Sikh ethnicity, or any actual or imputed support for Akali Dal: [100].
It considered and attached little weight to a letter that had been tendered by the applicant which claimed that genocide was being practised against religious minorities, noting that a claim of such breadth was not supported by independent country information. The Tribunal declined to wait further for the applicant to provide another letter. It did not accept that the applicant or his family was a member of Shiro Akali Dal or that they had supported the Akali Dal Party: [101]-[103], [106]-[108].
The Tribunal did not accept that the applicant had decided not to fly back to India in 2009 because of a fear that he might be harmed: [104].
The Tribunal considered the voluminous country information that had been supplied by the applicant together with information of that kind supplied by DFAT. It found that there was less than a real chance that the applicant would suffer serious harm amounting to persecution by reason of his Sikh religion: [105].
The Tribunal concluded that the applicant did not meet the definition of a refugee and was not entitled to complementary protection. It affirmed the delegate’s decision: [109]-[115].
Procedural history
On 8 June 2016, the applicant filed an application in this Court for judicial review of the decision made by the Tribunal. The applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the decision of the Tribunal made on 28 April 2017.
An affidavit affirmed by the applicant’s solicitor on 7 June 2016annexed a copy of the Tribunal’s decision but otherwise did not adduce any evidence in support of the application for judicial review.
By a Response filed on 13 July 2016, the Minister sought that the application be dismissed on the ground that it does not establish any jurisdictional error in the Tribunal’s decision.
On 8 November 2016, orders were made, by consent, listing the matter for final hearing. By those orders, the applicant was afforded an opportunity to file any amended application with complete particulars of each ground, any affidavits, written submissions and a list of authorities. The applicant did not take the opportunity provided by those orders to file any further material.
Consideration
The ground of review contained in the application reads:
The Tribunal erred in law by denying the applicant procedural fairness, acting unreasonably or failing to comply with ss 424, 425 or 427 of the Act.
Particulars
a. On 17 March 2016, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of his representative and an interpreter: Tribunal’s reasons, para [3].
b. The applicant claimed that he was owed protection obligations by Australia for reasons including his membership of a Sikh minority group in India: Tribunal’s reasons, paras [26]. [28].
c. At the hearing, the Tribunal proposed to give the applicant one week to provide further evidence to support his case, but instead gave him two weeks in view of the fact that his representative was to undergo “eye treatment” in the coming days and required some time to recover: Tribunal’s reasons, paras [67]-[68].
d. On 4 April 2016, the Tribunal received a brief submission from the applicant’s representative that purported to attach additional documents, but to which no documents were attached: Tribunal’s reasons, paras [69]-[70].
e. On 14 April 2016, the Tribunal wrote to the applicant, at his applicant’s representative’s address, and invited him to provide the support documents, the new letter, and anything else they would like the Tribunal to consider, by 29 April 2016: Tribunal’s reasons, para [72].
f. On 29 April 2016, the applicant’s representative provided a short submission referring to his own medial conditions, attaching medical evidence relating to those conditions and stating that ‘I also note that I have additional documents which should be received any day. But I will only finalize matters if my eyes stop hurting’: Tribunal’s reasons, paras [74]-[75].
g. The Tribunal noted that it ‘decided to proceed on the evidence available to it, rather than to wait for further unspecified documents to be provided especially given that it is not clear that the representative’s eyes will stop hurting. Given the [sic]’: Tribunal’s reasons, para [76].
h. The Tribunal was required, but failed, to give the applicant a meaningful opportunity to provide additional material that he had indicated he wished to provide to the Tribunal in support of his claims.
The applicant seeks to demonstrate jurisdictional error founded upon a want of procedural fairness by reason of an asserted unreasonableness in proceeding to decide the matter after allowing him a further fortnight to lodge submissions in support of his claim.
The applicant was invited to a hearing: ss 425, 425A. He was on notice of the issues arising in relation to the decision under review, having supplied a copy of the delegate’s decision to the Tribunal when his application was lodged and having been questioned upon those issues: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). He was questioned upon those issues.
The Tribunal was obliged to act reasonably in deciding the application. The applicant had been requested to lodge submissions before the hearing and did not do so, instead submitting some 60 pages of material, including matter that was considered wholly irrelevant to the issues arising on the review of the delegate’s decision.
The hearing was conducted on 17 March 2016. The applicant was represented for that hearing. He gave evidence and submissions were made on his behalf at and after that hearing.
To the extent that the applicant’s ground of review may be understood as indicating that it was for the Tribunal to obtain further information, that complaint is not made out. The present was not a case in which the Tribunal failed to make inquiry upon a critical fact, the existence of which was easily ascertainable. The Tribunal’s power to obtain information is permissive and not mandatory: Dissanayake v Minister for Immigration and Multicultural Affairs [2002] FCA 976, [18] (Sundberg J); VCAK of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459, [27] (Crennan J). The Tribunal was under no general duty to investigate the applicant’s claims: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, [25]-[26] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Power is conferred on the Tribunal to adjourn the merits review: s 427. Whether the Tribunal acted unreasonably in not allowing the applicant further time in which to lodge further submissions and documents is a fact intensive issue which requires an evaluation of the facts and circumstances of the particular case: Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280, [41] (Allsop CJ, Robertson and Mortimer JJ). I have examined those facts and considered the circumstances of this case.
The Tribunal allowed the applicant a fortnight in which to supply further documents and submissions. The Tribunal received and considered the further submission and the country information which had been supplied by the applicant and his agent together with the country information obtained from DFAT. It was a matter for the Tribunal to attach to that information the weight which it considered appropriate to the case.
As noted, the applicant did not submit further documents within the two week extension that was allowed by the Tribunal. It is clear that the applicant’s migration agent had supplied medical certificates relating to his inability to work at that time. However, the agent had written to the Tribunal on 29 April 2016, stating that “I have additional documents which should be received any day.” The statement that the agent had those documents should be read with the qualifying proposition that those documents should be received any day. No further documents were received. The Tribunal did not make a decision until 5 May 2016.
While the Tribunal was obliged to act reasonably in deciding the application, the test of legal unreasonableness is a stringent one: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [113] (Gageler J). I am not satisfied that the Tribunal’s conduct of the hearing of the application, allowing the applicant further time in which to file further submissions or in proceeding to decide the application demonstrates that it acted in a way which should be characterised as legally unreasonable. Having regard to the power which was being exercised, its decision did not lack an intelligible justification or a rational foundation. Nor was it plainly unjust or lacking in common sense: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [41] (Allsop CJ). The Tribunal’s conduct in proceeding to complete its review cannot be described as legally unreasonable, in the sense of being without any legal justification: Singh vMinister for Immigration and Border Protection [2017] FCAFC 105, [80] (Mortimer J, Jagot and Bromberg JJ agreeing).
Conclusion
As the applicant was self-represented I have examined the materials comprised in the court book and the Reasons of the Tribunal. I discern no error which would support the grant of relief sought in this application. As the ground of review is not made out, the application must be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 30 November 2018
1