BQA16 v Minister for Immigration

[2016] FCCA 2724

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQA16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2724

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether there was a denial of procedural fairness by the Tribunal – whether the adverse findings by the Tribunal amounted to bias – no jurisdictional error identified – application dismissed. 

Legislation:

Migration Act 1958 (Cth), ss.36, 423A, 430, 476.

Federal Circuit Court Rules 2001, r.44.12.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118.

Applicant: BQA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1677 of 2016

Judgment of: Judge Street

Hearing date: 21 October 2016

Date of Last Submission: 21 October 2016

Delivered at: Sydney

Delivered on: 21 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr D Eberl
Australian Government Solicitor

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1677 of 2016

BQA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 June 2016, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Bangladesh.  In March 2012, the applicant travelled legally to Malaysia using a sponsored visa, which was valid for three months. The applicant remained unlawfully in Malaysia for approximately twelve months.

3. In March 2013, the applicant travelled illegally by boat to Indonesia and from Indonesia, the applicant travelled by boat to Australia. On 28 March 2013, the applicant arrived at Darwin.

4. The applicant claims to fear harm from the Awami League based on an actual/imputed political opinion of being opposed to the Awami League and his brother’s outstanding donation to the Awami League. The applicant also claimed to fear harm by reason of his brother’s involvement in Jamaat-e-Islami.

The Delegate’s Decision

1. The delegate found that the applicant was not a witness of truth. The delegate also found that the applicant was prepared to entirely fabricate his material claims where he believed it would enhance his prospect of being determined to invoke protection obligations in Australia.

2. The delegate was not satisfied the applicant had a real chance of being persecuted for a Refugees Convention reason. The delegate was not satisfied the applicant’s fear was well-founded. The delegate was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm.

3. The delegate refused to grant the applicant a Protection (Class XA) visa, having found the applicant did not satisfy the criteria for the grant of a visa and found that Australia did not have protection obligations to the applicant.

The Tribunal’s Decision

1. Following the decision of the delegate dated 5 December 2014, the applicant applied for review to the Tribunal by filing an application on 23 December 2014. By letter dated 11 April 2016, the applicant was invited to attend a hearing on 1 June. The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal identified the relevant law. The Tribunal set out the applicant’s claims and evidence. The Tribunal made adverse credibility findings in relation to the applicant and found the applicant not be credible, truthful or a reliable witness. The Tribunal was of the view that the applicant had fabricated claims and concocted evidence to achieve an immigration outcome.

3. On the basis of the cumulative credibility concerns which the Tribunal identified in its reasons, the Tribunal did not accept the applicant is a credible witness. The Tribunal was not satisfied on the evidence before it that the applicant is a truthful witness as to his claims as to why he departed Bangladesh and why he fears to return.

4. The Tribunal found that it was not satisfied that the applicant faces a real chance of serious harm. The Tribunal was not satisfied by any of the reasons the applicant claimed or arising out of his evidence, either singularly or cumulatively for a Refugees Convention reason in the reasonably foreseeable future. The Tribunal was not satisfied that the applicant faces a well-founded fear of persecution. The Tribunal found it was not satisfied that the applicant was a refugee under s.36(2)(a) of the Act.

5. The Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk he will suffer significant harm as defined in s.36(2A) of the Act. The Tribunal found that the applicant did not satisfy the criterion under s.36(2)(aa) of the Act. The Tribunal affirmed the decision of the delegate.

Proceedings Before this Court

1. The grounds of the application filed in this Court are as follows:-

   1. The Administrative Appeal Tribunal (Refugee) (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection visa rejection by the Minister’s delegate.

   2. The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.

   3. The second respondent has denied the applicant’s natural justice and procedural fairness pursuant to s423A and 430(1)(c) and (d) of the Migration Act 1958.

   4. The applicant claims that the Tribunal was preoccupied and that was why he was denied procedural fairness when the Tribunal formed the view about the applicant before the hearing. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate’s decision.

   5. The applicant was deprived of the natural justice and procedural fairness. Because the decision maker did not afford the applicant whose interest has adversely affected by the decision as it did not given the opportunity to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.

   (Errors in the original)

2. On 25 August 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant did file submissions. 

3. At the commencement of the hearing today, the Court explained to the applicant that this was a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 to determine whether the applicant had a reasonably arguable case.

4. The Court explained that it was considering whether the applicant had a reasonable argument that the Tribunal’s decision was affected by a relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, it was considering whether there was a reasonable argument that the Tribunal’s decision was unlawful or a reasonable argument that the Tribunal’s decision was unfair.

5. The Court explained to the applicant it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

6. From the bar table, the applicant maintained that his life would be in danger if he was returned to Bangladesh. The applicant maintained concerns about his brother and raised the proposition that his father had recently disappeared. This Court cannot take into account fresh evidence as to claims in determining whether there is any jurisdictional error. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

7. In relation to Ground 1, on the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.  There is no reasonably arguable case of jurisdictional error of the kind alleged in Ground 1.

8. In relation to Ground 2, no conduct is identified to support the allegation of bias.  Bias is an allegation that must be clearly alleged and properly proven. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, fair and impartial mind to the determination of that on its merits. No arguable case is raised by Ground 2 of the application.

9. In relation to Ground 3, on the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness. The generalised allegation of a denial of natural justice and procedural fairness does not identify any arguable case of error. The adverse findings by the Tribunal in relation to the applicant’s credibility were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.

10. The issue of credibility had been raised squarely before the delegate. There is no arguable case of contravention of s.423A of the Act. On the face of the material before the Court, the Tribunal complied with the requirements of s.430(1) of the Act in its reasons for its decision. Ground 3 fails to identify any arguable case of jurisdictional error.

11. In relation to Ground 4, there is no evidence before the Court to support the assertion of any predetermination or arguable case of predetermination by the Tribunal.  The proposition that the Tribunal had cut and pasted its decision is entirely unsupported. Ground 4 fails to identify any arguable jurisdictional error.

12. In relation to Ground 5, on the face of the material before the Court, the Court is satisfied that the applicant had a real and meaningful hearing and an opportunity to give evidence and present arguments.  There is no evidence before this Court to support an arguable case that the applicant was denied an opportunity to present his case. On the material before the Court, the Tribunal complied with its statutory obligations and there is no arguable case of a denial of procedural fairness in the conduct of the review. No arguable case of denial of procedural fairness, as alleged in Ground 5, is made out. The submissions of the applicant, in substance, invite an impermissible merits review.

13. For the reasons already given, the adverse findings made are ones in respect of which the Tribunal provided orthodox reasons that were open on the material before the Tribunal. No arguable case of jurisdictional error is made out by the written submissions of the applicant.

Conclusion

1. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am satisfied that the application fails to disclose any arguable case. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.

2. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 10 November