BPX16 v Minister for Immigration
[2018] FCCA 1526
•14 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPX16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1526 |
| Catchwords: MIGRATION – Protection visa application – application for judicial review of decision of Administrative Appeals Tribunal – generalised grounds of review – applicant claimed Tribunal’s decision affected by error of law and denial of procedural fairness – no jurisdictional error found – no merit in grounds – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.36, 65, 422B, 424A, 424AA, 425, 425A, 476 |
| Cases cited: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 |
| Applicant: | BPX16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1380 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 14 May 2018 |
| Date of Last Submission: | 14 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 14 June 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms Bosnjak |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed at $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1380 of 2016
| BPX16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 30 June 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal made on 6 June 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
The applicant, a male Malaysian national aged 43 years, first travelled to Australia on 2 May 2012 on an electronic travel authority visa, which expired on 2 August 2012. From that date until 9 December 2014, the applicant continued to reside unlawfully in Australia.
On 8 December 2014, the applicant lodged an application for a protection visa. The claim to protection was grounded upon the applicant having fled to Australia after being beaten by a man said to be the husband of the applicant’s lover. Before me, the applicant said he did not know that his lover had a husband. The applicant claimed that the husband had also threatened his family, that the husband had sent people to search for him and that he would be forced to convert to Islam. His pleas for police assistance were ignored.
On 22 January 2015, the Department of Immigration and Border Protection invited the applicant to an interview. The applicant did not respond to the invitation and no interview was held.
On 8 April 2015, the delegate refused the application.
On 30 April 2015, the applicant sought a merits review of the decision refusing the visa application.
On 22 March 2016, the applicant was invited to appear before the Tribunal and to forward any submissions in advance of the Tribunal hearing. No submissions were sent to the Tribunal.
The applicant attended a hearing before the Tribunal on 2 May 2016 and was provided an interpreter for his assistance.
On 6 June 2016, a Tribunal affirmed the delegate’s decision to refuse the protection visa application.
Procedural history
By application filed on 30 June 2016, the applicant sought judicial review of the decision made by the Tribunal on 6 June 2016.
The applicant affirmed an affidavit in support of his application, to which he annexed a copy of the decision record. No further evidence was adduced by that affidavit.
By a response filed on 14 July 2016, the Minister contended that the decision under review was not affected by jurisdictional error and sought that the application be dismissed.
The proceeding was listed for directions on 7 December 2016. On that day orders were made, by consent, regulating the preparation of the matter for trial. The orders provided for the applicant to file any amended application, supplementary Court book and written submissions. The applicant did not take the opportunity provided by those orders to file any further material.
Judicial review
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).
The grant or refusal of a protection visa requires that the Minister has been satisfied or not satisfied (as the case requires) that the criteria prescribed for such visa have been “satisfied”: ss 36(2)(a), 36(2)(aa), 65(1)(a), 65(1)(b). Ministerial satisfaction that a protection visa applicant has fulfilled the criteria prescribed by s 36 is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65.[1]
[1]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37] - [38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].
As the text of s 65 makes plain, the decision-maker must issue a visa upon making a finding that the criteria applicable to the particular visa application are satisfied. Conversely, the decision-maker must refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied.[2]
[2]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274 - 275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
The criteria for a protection visa are set out in s 36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (“Regulations”). Subclass 866 of Schedule 2 of the Regulations prescribes the primary and secondary criteria that must be satisfied in relation to a protection visa application at the time of the application and the time of decision. Where the criteria prescribed for such a visa have not been satisfied, the application must be refused.
As concerns the primary criteria to be satisfied at the time of application, sub-cl 866.21 prescribed that the applicant had made:
(a)a claim that a criterion in sub-s 36(2)(a) or (aa) was satisfied; and
(b)specific claims as to why such criterion were so satisfied: para 866.21(2)(a)-(b).
As concerns the secondary criteria to be satisfied, sub-cl 866.3 prescribed that the applicant must also satisfy the primary criteria at the time of decision.
Relevantly, the applicant was required to satisfy the delegate or the Tribunal that:
(a)under s 36(2)(a) of the Act, he was owed protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b)under para 36(2)(aa) of the Act, that there was a real risk that he would suffer significant harm if he was returned to Malaysia.
On the operative provisions of the Act as in force at the relevant time, the applicant was also required to demonstrate that he had a well-founded fear of persecution for a reason specified in the Convention or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Malaysia, there was a real risk that he would suffer significant harm.
“Significant harm” is defined by sub-s 36(2A) of the Act.
Consideration
The applicant appeared before me with the assistance of an interpreter.
Relevantly, the grounds of the application were stated as follows:
1. The decision of the Tribunal:
a. is affected by an error of law; and
b. denied the applicant procedural fairness.
I note that the application for review filed on 30 June 2016 contained reference that the applicant was seeking legal assistance or pro bono assistance at that time.
As the applicant has not taken the opportunity to file a supplementary Court book or any submissions or amended application, the Minister, and in turn the Court, are left to attempt to discern the existence of jurisdictional error from grounds which are devoid of particulars.
In WZAVW v The Minister for Immigration and Border Protection [2016] FCA 760, Gilmore J said at [35]:
. . . an unparticularised assertion of jurisdictional error is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed. (Citations omitted)
See also MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25] (McKerracher J)
Although the present application is open to dismissal on this basis alone, I have considered the grounds as contained in the application for review following my examination of the Reasons of the Tribunal and the materials contained in the Court Book.
Ground 1 – Error of law
From my review of the Tribunal’s decision and the material which was before it, there is nothing to suggest that the Tribunal committed any error of law in its consideration of the applicant’s case and the decision which it reached.
The Tribunal set out the applicant’s background, summarised the relevant law and identified the applicant’s claims. Having done so, the Tribunal was not satisfied that the applicant was a witness of truth or that he had been truthful in relation to critical aspects of his claims: Reasons, [31].
In particular, the Tribunal found the applicant’s oral evidence to be confused and inconsistent and that it changed upon questioning: Reasons, [34].
In its consideration of the application, the Tribunal identified differences between the information as contained in the protection visa application and the applicant’s oral evidence. It also took account of the delay between expiry of the electronic travel authority and the application for a protection visa: Reasons at [34], [36], [40], [42], [44], [47] and [49].
Upon its review of the matter, the Tribunal did not accept any of the applicant’s claims: Reasons [59] - [69]. The Tribunal found that aspects of the applicant’s claims were unsupported by, and inconsistent with, independent relevant country information.
The Tribunal gave consideration to whether the applicant met the criteria for a refugee as prescribed by s 36(2)(a) or whether he was owed complementary protection as prescribed by s 36(2)(aa).
The Tribunal was not satisfied that the applicant was a person in respect of whom Australia owed such obligations.
I accept that the assessment of the applicant’s credit was a matter that is generally within the exclusive jurisdiction of the Tribunal. I consider that the Tribunal’s assessment of the applicant’s credit was based upon logically probative material and open on the evidence before it.[3] In the context of a protection visa application, the cogency of an applicant’s evidence is of the greatest importance in the evaluation or review of the visa application: Re Refugee Tribunal; Ex parte Aala.[4]
[3]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, 559; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, 348,
[4] (2000) 204 CLR 82, [61]-[62] (Gaudron and Gummow JJ, Gleeson CJ agreeing).
The Tribunal identified and applied the applicable legal principles, including those relevant to the assessment of the applicant’s credit.
I discern no jurisdictional error on the basis advanced by Ground 1.
Ground 2
As stated above, the assertion that the applicant was denied procedural fairness is devoid of particulars.
Part 7 of the Act concerns the review of Part 7 - Reviewable Decisions and is arranged in eight Divisions comprising ss 408 - 441G.
Division 4 of Part 7 concerns the conduct of review of Part 7 - Reviewable Decisions and comprises ss 422B - 429A. It is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals: s 422B.
By ss 425 and 425A of the Act, the Tribunal was obliged to invite the applicant to appear before it to give evidence and present arguments respecting the issues arising in relation to each review of the delegate’s decision. The Tribunal complied with those obligations. The applicant accepted the Tribunal’s invitation and appeared before it at the hearing with the assistance of an interpreter. In addition, the Tribunal is obliged to disclose certain information to an applicant either before a hearing or, where such disclosure is made at the hearing it must describe the nature and effect of the information and further, when requested by the applicant to do so, must adjourn the hearing for an appropriate period so as to allow the applicant an opportunity to consider the material.
In the present case there is no suggestion that the Minister failed properly to disclose information within the scope of its obligations under ss 424AA or 424A.
In particular, the Tribunal in reaching its decision relied upon information which had been given to it by the applicant in the course of his visa application or during the Tribunal’s proceeding, together with independent country information which, by its nature, did not relate specifically to the applicant. Information of the kind so described falls within the exceptions specified by sub-s 424A(3) and accordingly, was not subject to the particular disclosure requirements of sub-s 424A(1).[5]
[5]SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415, [76 ]-[107] (Tracey and Foster JJ).
In any event, it is plain upon a consideration of the Tribunal’s reasons that issues relevant to the determination of the applicant’s claim, including material which was adverse to him, were raised with the applicant in the course of the hearing: Reasons [29] - [52].
For the purposes of s 424A, “information” is concerned with knowledge of factual circumstances communicated to, or received by, a Tribunal. It does not include a Tribunal’s subjective appraisal or use of such evidence or the conclusions that it draws from the evidence.[6]
[6]MZKAJ v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCA 1066 (North J); SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 18 (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [9] (French CJ and Kiefel J).
I am satisfied there is no merit in the applicant’s assertion that he was denied procedural fairness. Ground 2 is rejected.
It follows that the application must be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Date: 14 June 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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Jurisdiction
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