Bpe17 v Minister for Immigration

[2019] FCCA 1635

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPE17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1635

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Protection visa – whether the applicant was denied natural justice – whether the Tribunal made an error in their interpretation of the legislation – whether the Tribunal fell into jurisdictional error – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424

Cases cited:

Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Applicant: BPE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1127 of 2017

Judgment of: Judge Humphreys

Hearing date: 13 June 2019

Date of Last Submission: 13 June 2019

Delivered at: Parramatta

Delivered on: 13 June 2019

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitors for the Respondents: Ms Saunders, DLA Piper

ORDERS

1. The first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application for an adjournment is refused.

3. The application is dismissed.

4. The applicant pay the costs of the first respondent fixed in the amount of $4500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1127 of 2017

BPE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant is a citizen of Bangladesh. The applicant arrived in Australia on a Student visa on 29 July 2009. The applicant applied for a further Student visa on 11 March 2011 and this was refused by the Department on 7 June 2011. That refusal was affirmed by the then Migration Review Tribunal on 29 July 2013.

2. The applicant then applied for a Protection visa on 8 December 2014. On 1 July 2015, a delegate of the Minister refused to grant the visa.

3. The applicant then applied to the Administrative Appeals Tribunal (“the Tribunal”) for merits review. On 22 March 2017, the Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal decision.

4. The applicant’s claims for Protection are set out in paragraphs 16 to 40 of the Tribunal decision. A brief summary is as follows.

5. While at college, the applicant joined the student wing of the Bangladesh National Party. The applicant became joint secretary of the college committee and in 2007 he became organising secretary of the Pirgong Thana BNP.

6. In the 2008 election, the applicant worked for a BNP candidate. After the election, the applicant and his family were targeted by the Awami League, the other main political party. In January 2009, Awami candidates entered the applicant’s house and looted belongings and threatened his parents.

7. At paragraph 43, the Tribunal noted the applicant’s evidence and formed a view that it had changed and evolved over the course of time. At paragraph 51, the Tribunal concluded the applicant was not truthful. At paragraph 54, the Tribunal came to the conclusion that:

   The Tribunal is therefore of a view that the applicant has fabricated and embellished his claims. This adds to the finding he is not a credible witness.

8. At paragraphs 66 to 71, the Tribunal dealt with a delay in the lodgement of the Protection visa by the applicant. At paragraph 71, the Tribunal concluded that the delay:

   …adds to the finding that he is not credible as to his fear of return and as to the finding that he is not credible or that he was threatened with harm…

   The Tribunal went on to say:

   …or that he departed Bangladesh in fear…

Grounds of Appeal

1. The grounds of the application are quite long. They can be summarised as follows:

   ·Ground 1 firstly asserts that the applicant was denied natural justice. The applicant asserts that during the Tribunal hearing, he gave honest and truthful answers and again asserts that if returned to Bangladesh, he would face serious harm.

   ·Ground 2 asserts errors in the interpretation of the legislation. The applicant asserts that he completely met the Protection visa obligations under the complimentary protection provisions of the Migration Act 1958 (Cth.) (“the Act”).

   ·Ground 3 asserts jurisdictional error, and the applicant asserts:

   The Tribunal made a jurisdictional error by raising an issue on my credibility.

   The applicant further asserts:

   I consider the Tribunal made a jurisdictional error and lacked jurisdiction in reaching its decision.

2. It should be noted that I have paraphrased what are quite lengthy grounds of appeal here, but I have tried to encapsulate what I believe is the substance in each of them, bearing in mind they have not been formulated by a legal advisor.

Considerations

1. The Court cannot undertake merits review. It can only consider the matter on the basis of whether or not there is an error of law disclosed on the face of the decision.

2. Ground 1 merely asserts disagreement, in my view, with the merits of the Tribunal decision. The ground asserts that the applicant is a credible witness and he gave honest answers. Matters of credibility are a matter of par excellence for tribunals. See Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] (“Durairajasingham”) per McHugh J.

3. In terms of the broader natural justice requirements, the Tribunal, pursuant to s 424(AA) of the Act, put information to the applicant and invited him to comment, which he did. I am not satisfied that there has been any breach of the statutory requirements by the Tribunal in that regard and given that Ground 1, in summary, merely asserts disagreement with the merits of the Tribunal decision, no error of law is disclosed. This ground must be dismissed.

4. Ground 2 is not a proper ground of appeal to this Court, as it merely asserts on behalf of the applicant that he met the Protection visa requirements. It invites merits review. Merits review is not a task for this Court, as has been explained earlier. This ground must be dismissed.

5. Ground 3 asserts that the Tribunal fell into jurisdictional error by finding the applicant was not credible and had not raised this issue with him earlier. As I indicated above, credibility is a matter for the Tribunal. See Durairajasingham.

6. However, credit may be challenged as a jurisdictional error in some cases. In ARG15 v Minister for Border Protection [2016] FCAFC 174 at paragraph 83, Griffiths, Perry and Bromwich JJ had this to say:

   Many of the relevant legal principles which guide the review or a judicial review of findings concerning credibility were recently discussed by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [36]-[44], being a decision of McKerracher, Griffiths and Rangiah JJ. These principles may be summarised as follows:

   (a) McHugh J’s oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;

   (b) the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);

   (c) in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and

   (d) without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:

   (i) failure to afford procedural fairness;

   (ii) reaching a finding without a logical or probative basis;

   (iii) unreasonableness; and/or

   (iv) other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [20]-[21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15.

7. I have considered each of the above grounds as to whether or not jurisdictional error is displayed in this matter. In my view, it was not unreasonable for the Tribunal to take account of the delay in the lodgement of the application for a Protection visa as a matter affecting the applicant’s credibility.

8. The consideration of the issue by the Tribunal is not without a logical or probative basis or that it was unreasonable or irrational in the findings that it made. I accept that the Tribunal did not treat the delay in lodgement as an end in itself, but took it into account in terms of the overall findings as to credibility. I am not satisfied that the Tribunal fell into jurisdictional error in this regard. Ground 3 must be dismissed.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:  

Date:  24 July 2019