BQV16 v Minister for Immigration
[2016] FCCA 2992
•18 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQV16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2992 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425, 476 |
| Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Michael Wilson & Partners Ltd v Nicholls (2001) 244 CLR 427 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Minister for Immigration v SZNPG (2010) 115 ALD 303 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration v SZKTI (2009) 258 ALR 434 Minister for Immigration v SZLFX &Anor (2009) 258 ALR 448 MZXBQ v Minister for Immigration (2008) 166 FCR 483 MZYIA v Minister for Immigration [2011] FCA 642; (2011) 121 ALD 291 MZYXS v Minister for Immigration [2013] FCA 614 MZZBT vMinister for Immigration & Anor [2013] FCCA 462 Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration (2007) 235 ALR 609 SZGIY v Minister for Immigration [2008] FCAFC 68 SZKLG v Minister for Immigration (2007) 164 FCR 578 SZSGA v Minister for Immigration [2013] FCA 774 SZUBA & Ors v Minister for Immigration & Anor [2014] FCCA 2594 SZUBA v Minister for Immigration [2015] FCA 120 Webb v R (1994) 181 CLR 41 |
| Applicant: | BQV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1712 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2016 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Sangha of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1712 of 2016
| BQV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application seeking review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 June 2016. The applicant is from Pakistan and had made claims of a fear of harm in that country due to his and his father’s experience in relation to terrorist threats to the Karachi International Airport. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The background to the applicant’s claims for protection and the decisions of the delegate and the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 10 November 2016.
The applicant is a citizen of Pakistan who arrived in Australia on 10 February 2014 on a tourist visa[1]. He lodged an application for a protection visa on 6 March 2014[2]. He appointed a lawyer to assist and advise him in the protection visa process[3]. The applicant set out his written claims to fear harm in Pakistan in an attachment to his visa application[4].
[1] Court Book (CB) 20, 83
[2] CB 6-35, 83
[3] CB 1-5
[4] CB 55-59
The applicant claimed that he and his parents were Muslims and that his father had been employed as a project technician at the Pakistan International Airlines (PIA) workplace since 1998. He claimed his father had access to sensitive and restricted areas of the airport and became aware in late 2010 that his movements were being monitored by unknown individuals. In December 2010, his father was allegedly approached by someone who appeared to be from the Frontier part of Pakistan saying he wanted to talk but his father ignored the incident. In early 2011, the same person approached him and offered to pay him a large sum of money to hand a parcel to someone or hand over his security pass so they could do this but his father refused. During this time, his father was approached again by this individual and a group of other individuals. They threatened the applicant’s father with “fatal consequences” if he did not assist them, and they slapped his face. His father reported the incident to his managers and the police but no action was taken. The applicant’s father continued to receive threats and demands throughout 2011. He stayed at home for four weeks to avoid the difficulties he was experiencing at work and also sent the entire family to their home village, other than the applicant who remained because he was completing his matriculation. The applicant said his father kept working and “somehow” managed to avoid harm from the fundamentalists.
In late 2011, the fundamentalists directed their attention away from his father and towards the applicant. The applicant claimed he was approached whilst walking to school and was told that he would be harmed or killed if his father did not agree to their demands. The applicant told his father who reported it to the authorities. The applicant was approached and threatened again. In January 2012, three individuals attempted to kidnap the applicant. The applicant completed his studies, applied for a visitor visa in 2013 and travelled with his parents to Australia, arriving on 10 February 2014. His father returned to Pakistan to protect the rest of the family and because work for him in Australia was uncertain. The applicant claimed his family was still receiving threats from the fundamentalists.
The applicant also referred to fundamentalism in Pakistan and referred to a terrorist attack by the Pakistani Taliban at the Jinnah International Airport in Karachi in June 2014. He said his father was not at the airport during the terrorist attack as he was sick. He also referred to a further threat to all institutions involved with Army or foreign delegations. The applicant claimed that despite reporting these matters to the police, no assistance was provided as the police were supportive of the fundamentalists.
On 6 March 2014, the Minister’s Department received a written submission from the applicant, which included references to country reports on the Taliban and attacks in Pakistan[5].
[5] CB 60-65
At the Tribunal hearing, the applicant confirmed he was Muslim and that he and his sister followed his father’s Sunni sect and his mother and brother followed the Shia sect. The applicant said he was not close to his brother and there were problems between them because they followed different sects of Islam[6]. The applicant also made additional claims at the hearing that his father was involved in politics; supported the party presently in government; and was also well-known and respected for his role in the Air League Union of PIA Employees[7].
[6] CB 137, [18]-[19]
[7] CB 138, [24]
The delegate
By a letter dated 12 August 2014, the applicant was invited (through his agent) to attend an interview with the delegate on 16 September 2014[8], which the applicant attended[9]. In a decision dated 18 September 2014, the delegate refused to grant the applicant a protection visa[10].The delegate assessed country information relevant to the applicant’s claims[11] and identified several concerns with the applicant’s claims and evidence[12]. Whilst retaining doubts about whether the claims of the applicant and his father were credible, the delegate found it was reasonable, in the sense of being practicable, for the applicant to undertake relocation within Pakistan to avoid the feared harm[13]. The delegate did not accept the applicant faced a real chance of harm[14] and for similar reasons found he also did not satisfied the complementary protection criterion[15].
[8] CB 74-77
[9] CB 87.5; 135, [7]
[10] CB 83-99
[11] CB 91-92
[12] CB 93-94
[13] CB 94-96
[14] CB 96
[15] CB 97-99
The Tribunal proceedings
On 14 October 2014, the applicant lodged an online application with the Tribunal to review the delegate’s decision[16]. He gave the Tribunal a copy of the delegate’s decision with his application[17].
[16] CB 100-101
[17] CB 101; item 6(a) of the court book index
By a letter dated 14 December 2015, the Tribunal invited the applicant to appear before it at a hearing scheduled for 21 January 2016[18]. The applicant accepted the invitation[19] and attended the scheduled hearing with his agent[20]. The applicant provided a copy of his passport[21] and various PIA-related certificates at the hearing[22].
[18] CB 105-108
[19] CB 109-110
[20] CB 127-129
[21] CB 114
[22] CB 115-126
Prior to the hearing, the Tribunal received a written submission dated 12 January 2016 from the applicant’s agent confirming the applicant’s protection claims[23]. The Tribunal expressly considered this submission[24].
[23] CB 111-113
[24] CB 136, [13]
The Tribunal recorded in its reasons[25] that it had other evidence before it, namely:
a)the protection visa application of the applicant’s brother, which showed: he first arrived in Australia on a visitor visa on 17 November 2012; returned to Pakistan on 2 February 2013; travelled back to Australia on 19 February 2013; and applied for a protection visa on 3 April 2013. The protection claims of “MM” were based on his Shia religion and political opinion and he claimed that: he belonged to a Shia family; was actively involved with the Imamia Student Organisation Pakistan; and was attacked and feared harm from an anti-Shia extremist group, the SSP[26];
b)Departmental records relating to the applicant and his family members that included the visitor visa applications of the applicant and his parents. Information in these records indicated: the applicant’s father, mother and brother were granted visitor visas in 2012; his father and brother travelled to Australia in November 2012; the applicant and his parents applied for visitor visas in 2013 and travelled to Australia together in February 2014; his parents departed Australia in March 2014; details of the father’s employment at PIA and his financial situation; the visitor visa applications of the applicant and his parents made no mention of the applicant’s brother or his presence in Australia at that time; and the applicant’s father travelled to Germany in 2011[27]; and
c)an anonymous “dob-in” letter dated 25 May 2015 received by the Tribunal on 26 May 2015[28], which alleged: the applicant’s brother and the applicant had provided false and fabricated information in their protection visa applications; the applicant and his family are Sunni Muslim from the Punjab; their father had secure employment with PIA and the family enjoyed a happy and privileged life[29].
[25] at CB 135-136, [8]-[13]
[26] CB 135, [9]
[27] CB 136, [10]-[11]
[28] CB 104
[29] CB 136, [12]
Section 424(1) of the Migration Act 1958 (Cth) (Migration Act) confers a “general power” on the Tribunal to “get any information that it considers relevant”. The only limitation on that power is that the Tribunal must have regard to the information in making its decision[30]. The Tribunal plainly satisfied that requirement[31].
[30] Minister for Immigration v SZKTI (2009) 258 ALR 434 at [37]
[31] at CB 135-136, [8]-[13]
The Tribunal’s summary of the hearing[32] recorded that it adopted the procedure in s.424AA of the Migration Act and put to the applicant at the hearing oral particulars of information it considered would be the reason or part of the reason for affirming the decision under review[33]. The Tribunal noted[34] that it complied with the procedural requirements of s.424AA(b)(i) to (iv) by explaining the relevance of the information and the consequences of the Tribunal relying upon it; informing the applicant that he could ask for additional time to respond if he wished; and noting that he elected to respond to the information at the hearing. The oral particulars of information the Tribunal put to the applicant pursuant to s.424AA were drawn from the evidence before the Tribunal (and noted above at [13(a)], [13(b)] and [13(c)]). It concerned:
a)information from Departmental records that indicated the applicant’s parents and brother applied for and were granted visitor visas in 2012; his father and brother travelled to Australia in November 2012; and his father returned to Pakistan in December 2012, which might undermine his claim that he experienced threats in late 2011 or early 2012 because if this was happening to him the Tribunal might not believe or accept that his parents would leave him and take his brother to Australia[35];
b)information in the passport of the applicant’s father from his visitor’s visa file that indicated his father had a Schengen visa and travelled to Germany in 2011 and also travelled to Australia in 2012 and 2013 before returning to Pakistan after each trip[36];
c)information from Departmental records that indicated the applicant’s brother returned to Pakistan in February 2013[37];
d)information contained in the protection visa application of the applicant’s brother in April 2013, where he had claimed that he belonged to a Shia family, was involved in certain organisations in Pakistan and did not claim that he was from a mixed Sunni/ Shia family[38]; and
e)“dob-in” information from an anonymous source that suggested the applicant and his brother had fabricated their claims for protection; their family was Sunni; their father had secure employment and the family had a privileged life in Pakistan[39].
[32] CB 139-141, [34]-[40]
[33] see CB 139-141, [34]-[40]
[34] at CB 139, [34]
[35] CB 139-140, [35]
[36] CB 140, [37]
[37] CB 140, [38]
[38] CB 140-141, [39]
[39] CB 141, [40]
The Tribunal also recorded in its reasons that it explained to the applicant the relevance of the information and the consequences of the Tribunal relying upon it and expressly considered the responses provided by the applicant.
The “information” noted above at [15(a)], [(b)], [(c)] and [(d)] probably did not enliven the Tribunal’s obligations under s.424A. In order for “information” to be considered “the reason, or part of the reason, for affirming the decision under review”, it must contain “in its terms” a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations. It is the relationship that the relevant information has to the content of the claim made by the applicant before the Tribunal that is a significant consideration in determining whether it is information in respect of which s.424A(1) applies. In addition, “information” for s.424A purposes does not extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps[40]. However, even if such information was not required to be put to the applicant for comment, no error is revealed in the Tribunal’s cautious approach[41].
[40] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]; Minister for Immigration v SZGUR (2011) 241 CLR 594 at [9]
[41] SZGIY v Minister for Immigration [2008] FCAFC 68 at [30]
Regarding the contents of the “dob in” letter[42], the Tribunal, as a matter of fairness, expressly put its contents to the applicant for comment at the hearing but explained to him that it was “unlikely to place weight on information given anonymously”. Whilst this statement supports an inference that the Tribunal did not consider the information in the “dob in” letter as information that would be the reason or part of the reason for affirming the decision under review[43], as the Tribunal prudently complied with the s.424AA procedure it was relieved of any s.424A obligations[44]. The Tribunal ultimately placed “no weight” on the “dob in” letter[45].
[42] reproduced at CB 136, [12]
[43] Minister for Immigration v SZLFX &Anor (2009) 258 ALR 448 at [23]-[25], citing SZKLG v Minister for Immigration (2007) 164 FCR 578 at [33]; MZXBQ v Minister for Immigration (2008) 166 FCR 483 at [29]; MZYIA v Minister for Immigration [2011] FCA 642; (2011) 121 ALD 291 at [24]-[25]
[44] Section 424A(2A) of the Migration Act
[45] CB 141, [40]
The Tribunal decision
In a decision dated 10 June 2016, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa[46]. The Tribunal outlined the applicant’s protection claims in his visa application and written statement[47]. It also noted his evidence at the delegate’s interview reiterated his written claims and referred to a recent attack at Karachi airport whilst his father was working there. His father had not returned to work and this incident caused the applicant to fear returning to Pakistan[48]. The Tribunal also provided a summary of what occurred at the hearing[49].
[46] CB 133-149
[47] CB 134-135, [5]-[6]
[48] CB 135, [7]
[49] CB 136-141, [14]-[40]
Whilst the Tribunal accepted that the applicant was a national of Pakistan[50], it had concerns about the credibility of his claims and evidence and did not accept he was telling the truth about his and his family’s past circumstances in Pakistan. Whilst accepting that the applicant’s father was a long term and continuing employee of PIA, the Tribunal did not accept that his father was followed or threatened by militants, was offered money to cooperate with them or that the applicant was threatened to put pressure on his father. Nor did it accept that militants tried to kidnap the applicant in early 2012 or that the applicant and his father were of interest to militants or anyone in Pakistan[51]. The Tribunal identified a number of reasons to support these findings:
a)First, the Tribunal[52] found the applicant’s claim that his father experienced problems in his workplace from the end of 2010/beginning of 2011 and continuing through 2011 was undermined by information before it that indicated his father travelled outside Pakistan during that period. Relevantly, information in the father’s passport from his visitor visa file indicated he had travelled to Germany in 2011[53]. After initially denying that his father travelled to Europe, the applicant then changed his evidence and conceded that his father travelled to Europe when the Tribunal confronted him with information that indicated his father had travelled to Germany in 2011. The applicant then said his father and brother went to Germany and Italy for holidays before 2010 but the Tribunal indicated the information showed this occurred in 2011. In addition, the Tribunal noted that the applicant’s father travelled to Australia in 2012 (with the applicant’s brother) and then again in 2013. The Tribunal considered the applicant’s responses, but found it “difficult to accept” and not credible that his father would travel to Europe on holidays and return to Pakistan when he was allegedly being watched and threatened by militants. It found the father’s continued and ongoing employment at PIA and his return to Pakistan after travelling to Europe in 2011 and Australia in 2012 and 2013 was inconsistent with the claims that his father was being threatened by militants since 2010 and the applicant was approached and threatened by militants in 2011 and 2012[54];
b)secondly, the Tribunal[55] found the protection claims advanced by the applicant’s brother failed to mention anything about their father’s problems with militants and were based on him being from a Shia family. When confronted with this information at the hearing, the Tribunal noted the applicant said his family was a mixed Shia/Sunni family, but the Tribunal noted he had not mentioned this in his original statement of claims or at his delegate’s interview and the evidence differed from his brother’s claim to be from a Shia family. The Tribunal found these matters were “not consistent with and not supportive of the applicant’s claims” and reflected adversely on the credibility of the applicant’s claims. It also noted that the brother returned to Pakistan in February 2013, which suggested there was no fear for his life. It also had difficulty accepting the applicant’s explanation that his brother was a cause of problems for his family given the evidence indicated that his brother travelled to Australia with his father in 2012 and the applicant also confirmed his brother had travelled with his father to Europe in 2011. The Tribunal found the applicant’s evidence about his brother was “evasive, inconsistent and lacking in credibility” and his brother’s Protection visa claims undermined his claims to be from a mixed Shia/Sunni family. The Tribunal found the applicant was a Sunni Muslim from a Sunni Muslim family[56].
[50] CB 141, [42]
[51] CB 142, [46]
[52] at CB 142, [47]
[53] CB 136, [10]
[54] CB 142-143, [47]-[50]
[55] at CB 143, [51]
[56] CB 143-144, [52]
For these reasons, the Tribunal did not accept the applicant’s claims that his father had been threatened by militants in Pakistan, he was approached or threatened by militants or there was an attempt to kidnap him. While it accepted there was a terrorist attack at the Jinnah International Airport in June 2014, for which the Pakistani Taliban claimed responsibility, the Tribunal did not accept the incident involved the applicant’s father in any way[57].
[57] CB 144, [53]
The Tribunal accepted the applicant’s father was a long-term employee of PIA and was also prepared to accept that he was involved in the employee’s union as claimed. However, as it had rejected his claims that his father was pressured or threatened by militants, the Tribunal did not accept that the applicant or his father were of interest to militants or anyone in Pakistan due to his position in the employee’s union or political affiliation[58].
[58] CB 144, [54]
As the Tribunal had rejected the claimed past experiences of the applicant and his father, it did not accept the applicant faced a real chance of harm from the Taliban, extremists or anyone else for this reason[59]. It considered whether there was any other basis for the applicant to fear harm from the Taliban or extremists and cited country information that indicated the security situation in Karachi and Pakistan had “significantly improved” and the crime rate had reduced dramatically, but accepted the security situation in Karachi “continued to be volatile and unpredictable”[60]. However, on the basis of the country information and the applicant’s concession that the crime rate had improved, the Tribunal found the weight of the evidence did not support a real chance that the applicant with his particular circumstances and profile would face serious harm in Pakistan in the foreseeable future for any Convention based reason[61]. Having considered the applicant’s claims “individually and on a cumulative basis”, the Tribunal was not satisfied there was a real chance that the applicant would face persecution on the basis of his Sunni religion, his father’s position in the PIA, political affiliation or union activities or for any other Convention based reason[62].
[59] CB 145, [57]
[60] CB 145-146, [59]
[61] CB 146, [60]
[62] CB 146, [61]
The Tribunal relied on its earlier factual findings about why the applicant did not face a real chance of serious harm to also find he did not face a real risk of significant harm or meet the s.36(2)(aa) criterion[63]. There is no jurisdictional error in this approach[64].
[63] CB 146-147, [63]-[65]
[64] SZSGA v Minister for Immigration [2013] FCA 774 at [54]-[56]; MZYXS v Minister for Immigration [2013] FCA 614 at [31]
These proceedings began with the show cause application filed on 4 July 2016. There are two grounds in that application:
1. The Tribunal did not apply law relevant to the applicant’s claims correctly, namely s.36(2)(a) and 36(2)(aa) of the Migration Act 1958. The applicant says the Tribunal did not apply the correct legal test and took into account irrelevant considerations and did not take into account relevant considerations.
2. The applicant says that he was not given a proper opportunity to be heard and thereby the Tribunal breached the hearing rule. The applicant says there was apprehended bias in the decision of the Tribunal.
The applicant continues to rely upon that application. It is supported by a short affidavit filed with it, which I received.
I also have before me as evidence the court book filed on 7 September 2016.
Only the Minister filed written submissions in accordance with procedural orders made by a registrar.
I invited oral submissions from the applicant this morning. I pointed out to the applicant that while the grounds in his application raised general legal issues, they did not mean anything in the absence of particulars.
The applicant drew attention to the anonymous dob-in letter which had been received by the Tribunal on 26 May 2015. The letter asserted that the applicant had fabricated his claims for protection. The Tribunal raised the question of the letter with the applicant at the hearing. The Tribunal ultimately gave the letter no weight. In my view, no error arises from the applicant’s treatment of that letter.
The applicant asked whether he would be able to listen to a sound recording of the Tribunal hearing. No sound recording or transcript was put into evidence by the parties. The applicant was provided with the opportunity, by the registrar’s procedural orders, to file and serve additional evidence or an amended application. He has not taken up those opportunities. The applicant has had the opportunity to request the sound recording of the Tribunal hearing from the Tribunal.
On its face, the Tribunal decision does not disclose any arguable case of jurisdictional error by the Tribunal. The Tribunal followed its code of procedure and appears to have done so fairly. The Tribunal considered all of the applicant’s claims and did not take into account any irrelevant considerations. There is no evidence of any apprehended bias. The applicant is concerned about the outcome before the Tribunal, but the merits of the Tribunal proceedings is outside the scope of this case.
The Tribunal’s conclusion that the applicant was not credible is a finding of fact par excellence[65]. Its findings about the credibility of the applicant’s claims and its choice of and reliance upon country information were also factual matters exclusively for the Tribunal to determine[66]. The Tribunal provided cogent reasons for concluding that the applicant was not credible and the Court cannot review the merits of the Tribunal’s decision[67]. To the extent that the Tribunal’s obligations under s.424A were enlivened with respect to information it relied upon to support its adverse credibility findings, it met those obligations by adopting the procedure under s.424AA. Further, by clearly confronting the applicant at the hearing with the concerns and problems it identified with the credibility of his claims, the Tribunal ensured that the applicant was plainly on notice at the hearing that his credit and the credibility of his claims were the dispositive issues on the review. No breach of s.425 is demonstrated[68].
[65] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]
[66] Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 281-282
[67] Minister for Immigration v Wu Shan Liang op. cit., at 272
[68] SZBEL v Minister for Immigration (2006) 228 CLR 153 at [47]
I otherwise agree with the Minister’s submissions in relation to the grounds of review.
Ground 1
Ground 1 asserts the Tribunal “did not apply law relevant to the applicant’s claims correctly” in relation to s.36(2)(a) and s.36(2)(aa), “did not apply the correct legal test”, “took into account irrelevant considerations and did not take into account relevant considerations”.
There are no details or particulars to make any of these assertions meaningful. For this reason alone, ground one does not raise an arguable case for the relief claimed. In any event, the Tribunal cited the correct law in its decision[69], and correctly applied it when assessing the applicant’s claims against the criteria for a protection visa in s.36(2)(a) and s.36(2)(aa). No arguable case of error is revealed in the manner that the Tribunal applied the procedure under s.424AA of the Migraiton Act and there is no breach of s.424A. There is nothing to indicate that the Tribunal misapplied the law or applied an incorrect test and the applicant has not pointed to anything to suggest the contrary. The applicant also fails to identify the irrelevant considerations the Tribunal allegedly took into account or the relevant matters it allegedly failed to consider. The bare complaints in ground one have no proper basis.
[69] CB 148-149, [68]-[82]
Ground 2
In the second ground, the applicant asserts he was not given “a proper opportunity to be heard”, the Tribunal “breached the hearing rule” and there was “apprehended bias” in the Tribunal’s decision.
Contrary to these complaints, the applicant attended a hearing with the Tribunal on 21 January 2015[70] and the Tribunal’s reasons[71], which is the only record of what occurred at the hearing, reveals that it comprehensively discussed with the applicant at the hearing the claims and evidence he advanced and the concerns and difficulties it had identified with the credibility of his claims. As noted above, the applicant has not taken up the opportunity afforded to him to file and serve further affidavit evidence and no transcript of the Tribunal hearing is in evidence. There is no support for the bare assertion that the applicant was not afforded a proper opportunity to be heard or that the Tribunal otherwise breached s.425 of the Migration Act. In the absence of any particulars to make these complaints meaningful, they cannot succeed.
[70] CB 127-129
[71] at CB 136-141, [14]-[40]
The applicant’s further complaint of apprehended bias also lacks any evidentiary basis or a proper foundation. An allegation of bias must be “distinctly made and clearly proved”[72], and it is not permissible to have recourse to the decision-record in order to establish apprehended bias[73]. There is nothing in the available materials to support a complaint that a fair-minded and informed person might reasonably apprehend that the Tribunal might not bring or have bought an impartial mind to bear on the decision[74]. The Tribunal provided cogent reasons for not accepting the applicant’s claims and evidence and its findings were open on the materials before and for the reasons it gave.
[72] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [69]; Minister for Immigration v SZNPG (2010) 115 ALD 303 at [18]
[73] Michael Wilson & Partners Ltd v Nicholls (2001) 244 CLR 427 at [67]-[68]; MZZBT vMinister for Immigration & Anor [2013] FCCA 462 at [45]
[74] Webb v R (1994) 181 CLR 41 at 70-71; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343-45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]
To the extent that this ground constitutes an attempt to invite the Court to undertake a review of the merits of the Tribunal’s decision, this is something the Court cannot undertake[75].
[75] Minister for Immigration & Ethnic Affairs v Wu Shan Liang op. cit., 272
The applicant’s supporting affidavit of 29 June 2016 also fails to identify any arguable case of jurisdictional error in the Tribunal’s reasons or procedure or to advance his case. The applicant refers in his affidavit to the unfavourable decisions of the Department and the Tribunal but the Court has no jurisdiction to review the delegate’s decision because it is a primary decision[76]. The complaints that his “application was not given due consideration at both instances and that there were errors in the decision” lack particulars and have no proper basis given the Tribunal’s comprehensive findings and reasons.
[76] Migration Act, ss.476(2) and 476(4)
In the course of oral argument, I raised with the Minister’s solicitor and the applicant that the applicant’s protection claims bore similarities with those raised in an earlier case before me[77].
[77] See SZUBA & Ors v Minister for Immigration & Anor [2014] FCCA 2594, affirmed on appeal SZUBA v Minister for Immigration [2015] FCA 120
In the present case, the applicant’s brother had made his own protection claims in a separate application, but those bore no connection to this applicant’s claims. The applicant’s parents had also visited Australia, but it does not appear that they claimed protection. It does not appear that there is any family relationship between this applicant and the applicant in SZUBA. There was a terrorist attack on the Pakistan International Airport in 2014.
The fact that two applicants have raised similar issues in relation to terrorists attempting to use airline employees to gain access to the airport is of some interest; this is a matter which the Minister could consider if he was so minded.
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 22 November 2016
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