Bop16 v Minister for Immigration
[2018] FCCA 2818
•1 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOP16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2818 |
| Catchwords: MIGRATION – Application for judicial review – application to show cause – unparticularised grounds of review – whether the Tribunal made an error of law – whether the Tribunal considered evidence – whether Tribunal decision affected by unreasonableness – no error apparent – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40 Randhawa v Minister for Immigration, Local government and Ethnic Affairs (194) 52 FCR 437 SZNVA v Minister for Immigration and Citizenship [2010] FCA 775 |
| Applicant: | BOP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1355 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 1 August 2018 |
| Date of Last Submission: | 1 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 1 October 2018 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondents: | Mr. B. Petrie |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed 7 December 2016 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1355 of 2016
| BOP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before the Court via an application for an order that the Respondents to show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (‘the Act’) made by the Applicant on 7 December 2016. This application is made in respect of a decision of the Administrative Appeals Tribunal (‘Tribunal’) dated 1 June 2016 which affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Protection (Class XA) Visa (‘Visa’).
Background
The Applicant arrived in Australia by boat in July 2012, having travelled from Iran. Though he is from Iran and stated that he has Iranian citizenship in an interview with the Department conducted
10 September 2012, in the same interview he also claimed to be stateless. His ethnicity is Kurdish and his religion was Shia Islam.
The Applicant applied for the Visa on 17 January 2013.
On 18 June 2014, the Visa was refused by a delegate of the First Respondent.
The Applicant applied to the Tribunal to review the decision of the delegate and appeared before the Tribunal to give evidence and present arguments on 22 March 2016.
On 1 June 2016, the Tribunal affirmed the decision of the delegate.
Claims of the Applicant and consideration by the Tribunal
The Applicant claimed to be stateless due to his father’s Kurdish ethnicity. However, as noted at [37] of the Tribunal’s record of decision, the Applicant later said that he was a Iranian national and has been such since 1991, when he was 13 years old.
The Applicant claimed he had suffered discrimination because of his ethnicity, and that ‘people in Iran called him Iraqi and josh’.[1] He also claimed that he had been prevented from marrying a woman because her father did not want her to marry a ‘josh’.[2] These claims were not raised at the Applicant’s initial interview with the Department.[3] The Applicant admitted to the Tribunal that a number of claims regarding discrimination on the basis of statelessness made in his 2013 statutory declaration were false.[4] The Tribunal found that the Applicant did not have a well-founded fear of persecution for a Convention reason and found the false statutory declarations given significantly affected the Applicant’s credibility as a witness.[5] It also did not accept that he had been prevented from marrying a woman based on his ethnicity, stating that the story appeared fabricated.[6]
[1] Court Book 330 [39].
[2] Ibid.
[3] Ibid.
[4] Ibid 331 [47] – [49].
[5] Ibid 336 [85].
[6] Ibid 338 [102] – 117].
The Applicant claimed to have become a Christian and was baptised into the Church of Jesus Christ of Latter Day Saints on 27 February 2016.[7] The Tribunal asked the Applicant to describe basic characteristics of Mormonism and found that he was unable to give sufficient answers.[8] While the Tribunal did accept that the Applicant had attended church as he described, it found overall that he was not a genuine convert and claims to be Christian were made to strengthen his visa application.[9]
[7] Ibid 336 [86].
[8] Ibid [88] – [91].
[9] Ibid 337 [96] – [99].
The Tribunal found that the Applicant would not be subjected to serious harm for reasons of his Kurdish ethnicity or imputed or actual Iraqi heritage.[10] The Tribunal also did not accept that the Applicant would face harm upon return to Iran by reason of being a failed asylum seeker.[11]
[10] Ibid 339 [117].
[11] Ibid 340 [125].
The Tribunal affirmed the decision of the delegate, finding that the Applicant did not have a well-founded fear of persecution for any Convention reason if he was returned to Iran and that he was also not a person to whom Australia owed protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.
Grounds of review
The grounds of review submitted by the Applicant are replicated exactly below:
Ground 1: Error of Law
1.The decision by the Second Respondent involved an error of law, whether or not the error appears on the record of the decision.
Ground 2: Misapplication of law or failure to ask the correct question
2.Second Respondent either misrepresented, misunderstood or misapplied the applicable law, or has otherwise failed to ask itself the correct question.
Ground 3: No Evidence
3.There was no evidence or other material to justify the making of the decision by the Second Respondent or the Second Respondent relied on evidence which did not exist.
Ground 4: The Failure to Take into Account Relevant Considerations
4.The Second Respondent failed to take into account a relevant consideration in the exercise of power.
Ground 5: The taking into account of irrelevant considerations
5.The Second Respondent took into account an irrelevant consideration in the exercise of power.
Ground 6: Without regard to the merits
6.The Second Respondent exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.
Ground 7: Unreasonableness
7.The Second Respondent exercise power in a manner that is so unreasonable that no reasonable person could have so exercised the power.
Ground 8: Uncertainty
8.The Second Respondent exercised power in such a way that the result of the exercise of the power is uncertain.
Consideration
The First Respondent submits that particularised grounds are not sufficient to support an application for judicial review and may be dismissed for this reason alone, citing SZNVA v Minister for Immigration and Citizenship [2010] FCA 775 [21]; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35] and MZARG v Minister for Immigration and Border Protection [2018] FCA 624 [25]. Though not particularised, the grounds themselves are generally articulated in clear language. In the interests of completeness each will be dealt with individually below.
Ground one
The Applicant submitted that there was an error of law in the decision of the Tribunal without indicating what this error is. There is no indication of error from the conduct of the Tribunal and the decision record similarly provides no basis to infer there was an error on the part of the Tribunal. This ground cannot be made out.
Ground two
The Applicant submitted that the Second Respondent either misrepresented, misunderstood or misapplied the applicable law, or has otherwise failed to ask itself the correct question. This ground is similar in nature to the first ground, and the precise question the Tribunal allegedly failed to ask itself is not provided. It is not apparent that the Tribunal made an error in this regard and this ground must fail.
Ground three
The Applicant submitted that there was no evidence to justify the decision made or there was reliance on evidence that did not exist. The Tribunal examined the claims of the Applicant in great detail and its findings were logical and open to it on the evidence. As submitted by the First Respondent, the ‘Tribunal was not otherwise bound to uncritically accept any or all of the claims advanced by the Applicant’: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.[12] There is nothing available to the Court to conclude that there was no evidence to justify the decision or relied on evidence that did not exist.
[12] Submission of First Respondent, filed 18 July 2018, 6.
Grounds four and five
The Applicant submitted that the Tribunal failed to take into account a relevant consideration but has not provided what this consideration may be. Similarly, the Applicant does not indicate what irrelevant considerations the Second Respondent took into account. Mandatory and impermissible considerations are determined by the construction of the governing legislation: Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40. With reference to the Act, the Tribunal complied with its statutory duties and there is nothing available on the evidence that indicates that it did not make its decision according to law. Accordingly, this grounds four and five fail.
Ground six
The Applicant alleges that the Tribunal exercised a discretionary power without regard to the merits of the case. Not only is this ground insufficiently particularised but it appears to invite an impermissible merits review: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 [68].
Ground seven
The Applicant submitted that the Tribunal unreasonably exercised power. To be unreasonable, the power must have been exercised to make a ‘decision which lacks an evident and intelligible justification’.[13] The decision in this case cannot be characterised as lacking an evident and intelligible justification; the conclusions made by the Tribunal were open on the evidence before it. This ground must be dismissed.
[13] Minister for Immigration and Citizenship v Li [2013] HCA 18 [76]
Ground eight
The Applicant submitted that the Tribunal exercised its power in such a way that the result is uncertain. This ground is impossible to apprehend and does not appear to point to an error on the part of the Tribunal; it cannot be made out by the Applicant.
Conclusion
For the reasons outlined above, the application filed 7 December 2016 is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 1 October 2018
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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Natural Justice
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Procedural Fairness
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Statutory Construction
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