BOD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1476
•6 September 2019
FEDERAL COURT OF AUSTRALIA
BOD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1476
Appeal from: BOD17 v Minister for Immigration & Anor [2019] FCCA 1665 File number: NSD 1111 of 2019 Judge: BROMWICH J Date of judgment: 6 September 2019 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court – where primary judge dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal – where second respondent affirmed a decision of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the grant of a protection visa to the appellant under s 65 of the Migration Act 1958 (Cth) – whether primary judge committed jurisdictional error – held: appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2), 65 Cases cited: Dakpa v Minister for Home Affairs [2019] FCA 806
Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 357 ALR 408
SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129
Date of hearing: 6 September 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the Respondents: Ms J Noakesmith of DLA Piper Australia Counsel for the Respondents: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1111 of 2019 BETWEEN: BOD17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
6 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
This is an appeal from orders of the Federal Circuit Court of Australia, dismissing an application for review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal upheld a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the grant of a protection visa to the appellant under s 65 of the Migration Act 1958 (Cth). The appellant contended before the primary judge, and on appeal to this Court, that the Tribunal asked misleading questions and did not consider whether the delegate properly disclosed relevant information, amounting to an allegation of procedural unfairness by the Minister’s delegate and the Tribunal.
Before the Tribunal
The appellant, a Malaysian citizen, claimed in his application for a protection visa that he was a member of the “Bersih” political movement. The appellant further claimed that if he were returned to Malaysia, he would be arrested, questioned and jailed because of his membership of this movement, that his life would be in danger, and that he would be unable to relocate to another part of Malaysia due to it being a small country.
The Tribunal’s reasons at [16]-[19] describe the evidence given by the appellant, with the assistance of an interpreter, at the hearing as follows:
The [appellant] told the Tribunal that the claims made in his protection visa application had all been fabricated by the agent he had engaged to make the visa application. The [appellant] said he knew nothing about the ‘Bersih’ group and had not been involved in politics at all in Malaysia.
The Tribunal asked the [appellant] whether he had ever suffered any harm in Malaysia. The [appellant] responded that he had not.
The Tribunal explained to the [appellant] that in order to meet the criteria for the visa, the Tribunal must be satisfied that the [appellant] faced a real chance or risk of serious or significant harm if he returned to Malaysia. The Tribunal asked the [appellant] about his reasons for not wanting to return to Malaysia. The [appellant] told the Tribunal that he did not think he would suffer persecution or significant harm, however, it was difficult for people like him, with little education, to find a good job and make a living in Malaysia. The [appellant] told the Tribunal that he had been working in Australia and wished to remain in Australia a bit longer in order to continue working. Asked whether he had been employed in Malaysia, the [appellant] responded that he had done a variety of jobs.
The Tribunal indicated to the [appellant] that, based on his oral evidence, it did not appear that he met the criteria for the visa. The [appellant] indicated that he understood.
Based on the evidence given at the hearing, the Tribunal was satisfied that the appellant had resiled from the claims in his application form, and that he did not satisfy the criteria for a protection visa under s 36(2) of the Migration Act.
Before the primary judge
The appellant contended before the primary judge, and on appeal to this Court, that the Tribunal asked misleading questions (ground 1 before the primary judge) and did not consider whether the delegate disclosed relevant information properly (ground 2 before the primary judge). It is convenient to reproduce his Honour’s consideration of those grounds (at [6]-[9]):
During the course of the hearing, the [appellant] was asked by the Court as to whether or not he still maintained that the claims that he was part of the ‘Bersih’ group were fabricated by his migration agent. The [appellant] told the Court that they were. The [appellant] was asked why, if that was the case, he appealed to this Court. The [appellant] told the Court that he appealed to this Court on the basis that it would allow him to be able to continue to remain in Australia. To that extent, his appeal has been remarkably successful.
The Tribunal decision was on 17 March 2017 and this appeal is now being held on 17 June 2019, some two years and two months after the original decision. It is a regrettable fact that the [appellant’s] actions could be viewed as being an abuse of the process in that his appeal heard here today was lodged for the sole purpose of ensuring that he would be able to continue to stay in Australia and continue to work.
Be that as it may, there are three grounds of appeal before the Court which must be considered. As to Ground 1, no particulars are provided as to what misleading questions were asked. The decision record shows that the [appellant] had every opportunity to put forward his case and that the Tribunal engaged with him and indicated the issues he had in relation to his claim. I can find no apparent jurisdictional error and this ground cannot succeed.
Ground 2 is misconstrued. It was a de novo hearing, not a legal review of the conduct of the delegate. There was no jurisdictional error apparent from the decision of the Tribunal.
The primary judge also considered a third ground of appeal as to whether the appellant was unfit at the hearing and thereby denied the opportunity to put his case before the Tribunal, and found that this was not established. This ground was not pressed as a ground of appeal in this Court.
The grounds of appeal and submissions
The appellant seeks to have the decision of the Tribunal quashed and remitted for reconsideration. The appellant’s grounds of appeal are as follows (verbatim):
1.There exists procedural unfairness.
Whether the Delegate handled my case fairly and disclosed relevant information was not considered by Tribunal.
Tribunal asked me misleading questions, which led to adverse effects to me.
2.The Judge ignored my claims.
The task of this Court is to determine whether the judgment of the primary judge is affected by appealable error, not to review directly the decision of the Tribunal, nor for that matter, of the delegate: see SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]; Dakpa v Minister for Home Affairs [2019] FCA 806 at [15]; and Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [30] per Gageler J. As such, the first ground of appeal should be beneficially read as a challenge to the primary judge’s reasons in considering whether there was any purported failure of the Tribunal to afford procedural fairness.
The Minister furnished concise but comprehensive written submissions, and was content to rely upon them without making any oral submissions. The Minister’s written submissions were read to the appellant by an interpreter in court. The appellant did not provide any written submissions. At the hearing of the appeal, the appellant was invited to make any written submissions, but said “I have nothing to say, your Honour”.
Consideration
Ground 1: Procedural unfairness
A transcript of the Tribunal hearing was not tendered by the appellant before the primary judge or before this Court. Accordingly, before his Honour and in this Court the only evidence as to what occurred at the Tribunal hearing is contained in the Tribunal’s reasons, especially the portion reproduced at [3] above. I accept the submission for the Minister that the Tribunal’s summary of what took place at the Tribunal hearing demonstrates that the appellant was afforded a meaningful opportunity to be heard. The Tribunal’s summary also does not provide any support for the assertion that the appellant was asked misleading questions, which were, in any event, not particularised before the primary judge or before this Court.
The Tribunal explained the relevant criteria for a protection visa and informed the appellant that, based on his oral evidence, it did not appear that he met those criteria. Further, in respect of whether the delegate handled the appellant’s case fairly and properly disclosed relevant information, the primary judge was correct to note at [9] that the Tribunal was conducting a review de novo, and not a legal review of the conduct of the delegate. Accordingly, I see no error in the primary judge’s reasons in respect of this ground of appeal. It has not been demonstrated that there was any denial of procedural fairness by the Tribunal. Ground 1 therefore fails.
Ground 2: Primary judge ignored appellant’s claims
The appellant’s contention that the primary judge ignored his claims on appeal is misconstrued, and in any event, baseless. The role of the primary judge was not to revisit the merits of the appellant’s claims for protection, but rather to determine whether the Tribunal committed any jurisdictional error. It is evident from the paragraphs of the primary judgment extracted above that his Honour briefly but adequately considered the appellant’s grounds of judicial review in relation to the Tribunal’s decision to affirm the delegate’s decision. Further, as noted in the primary judgment at [6], the appellant confirmed at the hearing before the primary judge that his claims for protection were fabricated by his migration agent and that he lodged his appeal to allow him to be able to continue to remain in Australia. Ground 2 must also therefore fail.
Conclusion
The appeal must be dismissed with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich . Associate:
Dated: 6 September 2019
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