BOC19 v Minister for Immigration
[2020] FCCA 189
•31 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOC19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 189 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – show cause application dismissed for non-appearance – reinstatement application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 422B, 424A, 424AA, 425, 438 |
| Cases cited: Minister for Immigration v Jia Legeng (2001) 205 CLR 507 |
| Applicant: | BOC19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 932 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 31 January 2020 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr A Gardner of Minter Ellison |
INTERLOCUTORY ORDERS
The Application in a Case filed on 25 November 2019 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 932 of 2019
| BOC19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
I have before me an Application in a Case filed on 25 November 2019. In that application, the applicant seeks orders setting aside orders I made on 11 November 2019. On that day, I dismissed with costs the substantive judicial review application on account of the applicant’s non-attendance.
The reinstatement application is supported by an affidavit by the applicant filed with it. I received that affidavit, and the applicant was not required for cross-examination. In his affidavit, the applicant offers an apology for his non-attendance and explains it on the basis of forgetfulness. He expresses his regret for his forgetfulness and asserts that he suffers from depression. The applicant deposes that he takes the proceedings seriously, and he states his belief that the Tribunal member made some unspecified error of law in the Tribunal decision.
I invited oral submissions from the applicant concerning his reinstatement application. He confirmed that he forgot the date of the show cause hearing in November last year, but states that he is now feeling better. He told me that he has been prescribed medication for his forgetfulness and showed me a box of Nexium. He also handed up some medical records which state that the applicant has undertaken blood tests. He has also undertaken two breath tests which indicate a low level chest infection. The applicant also told me that the Nexium was prescribed for that condition. I was unable to verify that.
There is no clear medical evidence available that the applicant suffers from depression or any other psychological condition. While the applicant is disarmingly honest in explaining his failure to appear at the show cause hearing, mere forgetfulness is not, in my view, a sufficient explanation for a failure to attend. That in itself is sufficient reason to dismiss the reinstatement application. The Minister makes no claim to any prejudice that would flow from reinstatement and also made submissions concerning the prospect of success of the substantive judicial review application. That is also a relevant consideration.
The background facts relating to the applicant’s claims for protection and the Tribunal decision on them are set out in the Minister’s outline of submissions filed on 4 November 2019.
The applicant, a citizen of Nepal (Chhetri ethnicity), arrived in Australia on 5 July 2015 as the holder of a visitor (Tourist Stream) (FA-600) visa.[1]
[1] Court Book (CB) 19
On 7 September 2015, the applicant applied for a protection visa.[2] The applicant's key claims for protection related to his membership of the Rastriya Prajatanta Party Nepal (RPP), his identification as a supporter of the Nepalese Monarchy, being harassed and targeted by anti-Monarchists (including by Maoists who demanded financial support), his past service in the Indian Army from January 1996 to June 2013 (and fear of harm amounting from this service).[3] The applicant also claimed that the recent earthquakes in Nepal resulted in “an ongoing humanitarian and financial crisis”, which led to increased rates of unemployment and crime and would make it “difficult for me to find work and protection”.[4]
[2] CB 1–35
[3] CB 30–32, 63–68
[4] CB 68
On 16 February 2016, the applicant attended an interview with the delegate.[5]
[5] CB 74
On 17 February 2016, the delegate refused the protection visa.[6] The delegate found that the applicant had a statutory effective protection in a third country (India) and that he was not owed protection obligations by Australia under ss.36(3), 36(4), 36(5) and 36(5A) of the Migration Act 1958 (Cth) (Migration Act).[7]
[6] CB 69–82
[7] CB 79
On 8 March 2015, the applicant applied for review to the Tribunal, attaching a copy of the delegate's decision record.[8]
[8] CB 87–103
On 13 March 2019, the applicant attended a hearing before the Tribunal.[9]
[9] CB 123–124
On 18 March 2019, the Tribunal notified the applicant of its decision of the same date, affirming the delegate's decision not to grant the applicant a protection visa.[10]
[10] CB 162–179
Tribunal decision
The Tribunal recorded that the key issues in this case related to the applicant's credibility.[11]
[11] CB 168, at [10]
The Tribunal referred to the independent country information that it had obtained with respect to Nepal,[12] and that it had made a request from the Country of Origin Information Services Section (COISS) of the Minister's Department regarding updated country information in Nepal from April 2015.[13]
[12] CB 170–172, at [14]–[19]
[13] CB 170–171, at [17]
The Tribunal recorded the following concerns:
a)the applicant had not been consistent in relation to where he primarily lived after his service in the Indian Army, and his claims had varied between the written claims and evidence provided at hearing;[14]
b)the applicant's claims in relation to his job, home, wife and children had been inconsistent.[15] The Tribunal recorded that it put its concerns to the applicant regarding his credibility, and that the applicant had “indicated that he might not have recounted all details in his written statement and that what he said in the hearing was true”;[16]
c)the applicant was inconsistent with his claims as to the timing of his involvement with the RPP;[17]
d)the applicant's account of returning to his home village area from Kathmandu on multiple occasions, after being kidnapped in his home village area in January 2015, was not credible[18] on account of changing written claims and at hearing;[19]
e)it found that the applicant did not provide an account of his political involvement or of the threats that he and his family received which indicated that the applicant was talking from personal experience;[20]
f)it found that the applicant's accounts as to threats and mistreatment by Maoists in recent years was not consistent with independent country information[21] which it discussed with the applicant;[22] and
g)it disagreed with the applicant's response at hearing that the situation in Nepal meant that he faced a risk of harm from Maoists,[23] and accepted the independent information before it at face value.[24]
[14] CB 173, at [24]–[27]
[15] CB 173, at [27]
[16] CB 173, at [28]
[17] CB 174, at [30]–[36]
[18] CB 174, at [37]
[19] CB 174–175, at [37]–[41]
[20] CB 175, at [42]–[44]
[21] CB 175, at [45]
[22] CB 175, at [46]–[47]
[23] CB 175, at [48]
[24] CB 175, at [49]
The Tribunal considered the five credibility issues cumulatively, and found that they were significantly adverse to the applicant's overall credibility.[25] The Tribunal was not satisfied that the applicant had become a member of or was significantly involved in activities of any royalist political party, and was not satisfied that the applicant faced a fear of harm for any reasons claimed,[26] including on account of the alleged general instability in Nepal, or the applicant's military background.[27]
[25] CB 176, at [50]
[26] CB 176, at [51]
[27] CB 176, at [53]–[54]
The Tribunal was not satisfied that the applicant was owed protection under s.36(2)(a) or s.36(2)(aa) of the Migration Act.[28]
[28] CB 176
The grounds advanced in the applicant’s show cause application are:
1.I am not satisfied with the Second Respondent's decision in dealing with my case because I believe the Second Respondent made its mind to affirm the decision of a delegate and my answers were squarely dismissive in which my circumstances and evidence were ignored or overlooked.
2.It is argued that the invitation to comment at the hearing was pointlessly useless and, in the circumstances, inadequate.
3.The Second Respondent erred in its decision on the ground that my case was taken in breach of the rules of procedural fairness and natural justice.
The applicant was not able in his oral submissions today to expand in any meaningful way upon those grounds. He simply stated that the Tribunal decision was not fair, and he is not satisfied with it because he told the truth. The Minister’s submissions, in my view, deal persuasively with the grounds advanced.
Ground 1
This ground expressly refers to the applicant's dissatisfaction with the Tribunal's decision, and seeks impermissible merits review. This ground would fail for the following reasons.
Bias
To the extent the applicant's allegation that the Tribunal “made its mind to affirm” its decision is taken to be an allegation of bias, this ground does not contain any particulars or evidence in support of such an allegation. An allegation of actual bias is serious and must be “distinctly made and clearly proved”.[29]
[29] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J
The applicant has not discharged this heavy onus. If this allegation is to be understood as an allegation of apprehended bias, it is for the applicant to establish that the Tribunal did not bring a fair and impartial mind to the making of the decision.[30] Again, the applicant has not discharged this onus. This ground is without merit and there is nothing in the decision record that suggests the Tribunal was affected by actual or apprehended bias.
[30] Minister for Immigration v SZQHH (2012) 200 FCR 223 at 235 per Rares and Jagot JJ
Failure to consider a claim
It is for the applicant to prove that the Tribunal failed to consider the submissions and not for the Minister to prove that they were considered.[31]
[31] Minister for Immigration v SZGUR (2011) 241 CLR 594 at [64], [91]–[92] per French CJ and Kiefel J; Minister for Immigration v MZYTS (2013) 230 FCR 431 at [53] per Kenny, Griffiths and Mortimer JJ
The Tribunal recorded the evidence before it, including the evidence provided by the applicant.[32] There is nothing to suggest that the Tribunal failed to consider the applicant's claims or evidence.[33]
[32] at [11]–[13], and [24]ff
[33] Minister for Immigration v SZRKT (2013) 212 FCR 99 at [122] per Robertson J
Properly understood, the applicant's complaint expresses discontent with the Tribunal's credibility findings. The Tribunal's finding that the first applicant was not a witness of truth was a finding of fact for the Tribunal to determine.[34]
[34] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J
Ground 2
This ground appears to reference an “invitation to comment”; however, the Tribunal's decision record does not indicate that any information was put to the applicant under ss.424AA or 424A of the Migration Act. The Tribunal's decision record indicates that the Tribunal discussed its credibility concerns with the applicant (see for example [28]).
The Tribunal's concerns were in relation to credibility, and inconsistencies between the applicant's own evidence, and independent country information that it sourced. The Tribunal was not required to give particulars of the independent country information to the applicant.[35] Further, the Tribunal's obligation under s.424A(1) does not encompass the Tribunal's subjective appraisals, thought processes or determinations, nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps.[36]
[35] Section 424A(3)(a) of the Migration Act; SZMCD v Minister for Immigration (2009) 174 FCR 415 at [91] per Tracey and Foster JJ
[36] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ
As to the Tribunal's obligations under s.425 of the Migration Act (as understood in light of SZBEL v Minister for Immigration,[37] the Tribunal's decision record indicates that the information regarding the general political and social conditions in Nepal were discussed with the applicant.[38]
[37] (2006) 228 CLR 152
[38] see [46]–[48]
Ground 3
Ground 3 is a bare assertion of a denial of procedural fairness and natural justice. Pursuant to s.425 of the Migration Act, the applicant was invited to, and attended, a hearing before the Tribunal to give evidence and to present arguments relating to the issues arising in his case. The applicant was plainly afforded sufficient opportunity to give evidence and to present arguments to the Tribunal about determinative issues on review.[39]
[39] see for example [11] and cf. SZBEL at [47], per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ
Further, the Tribunal's decision record does not indicate that any information under s.424AA was put to the applicant at the hearing. The Minister contends that the Tribunal complied with its procedural fairness obligations, which are exhaustively defined under Division 4 of Part 7 of the Migration Act.[40] This ground is without merit.
[40] section 422B
The Minister’s submissions also appropriately draw attention to a purported certificate purportedly issued under s.438 of the Migration Act. The Minister’s submissions also deal with that issue, which I adopt.
On 9 March 2016, a delegate of Minister issued a certificate to the Tribunal under s.438(1)(a) of the Migration Act (the certificate).[41] The certificate purports to cover two internal checklists, one relating to the applicant's identity, and the other being a draft disclosure decision checklist.[42]
[41] CB 83
[42] CB 84–86
The certificate is invalid, as neither of the documents it purports to cover disclose any information of a contentious or sensitive nature, and neither is relevant to the Tribunal's decision or review.[43]
[43] see MZAFZ v Minister for Immigration (2016) 243 FCR 1; Minister for Immigration v Singh (2016) 244 FCR 305
The certificate and the documents it concerns are wholly irrelevant to the issues in review, and the Tribunal's failure to disclose the existence of the certificate was not material, as it could not have had any impact on the Tribunal's assessment of the applicant's protection claims.[44]
[44] Minister for Immigration v SZMTA (2019) 93 ALJR 252 at [2]–[3] per Bell, Gageler and Keane JJ
I agree that the purported certificate is invalid, and the documents purportedly covered by it were wholly irrelevant to the Tribunal’s review.
The lack of merit in the judicial review application is another reason for refusing the reinstatement application. I conclude that the application in a case filed on 25 November 2019 should be dismissed, and I so order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $800.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 February 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Costs
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Standing
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