BRH16 v Minister for Immigration

[2016] FCCA 2920

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRH16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2920

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection Visa (XA866) – whether an obligation was enlivened pursuant to s.424AA – whether the Tribunal complied with mandatory obligations – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.4, 36, 420, 424A, 424AA, 427, 476

Applicant: BRH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1735 of 2016

Judgment of: Judge Street

Hearing date: 11 November 2016

Date of Last Submission: 11 November 2016

Delivered at: Sydney

Delivered on: 11 November 2016

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Shelly Legal

Solicitors for the Respondents:

Ms A Wong

Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,900.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1735 of 2016

BRH16

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 27 May 2016 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a Sunni Rohingya and a stateless person.

2. The applicant arrived in Australia on 28 March 2013 as an unauthorised maritime arrival and participated in an entry interview on 5 May 2013. On 11 July 2013 the applicant applied for a Protection Visa (XA866). The applicant also appointed a migration agent and solicitor to act in connection with that application.

3. The applicant claimed that he was a stateless Sunni Rohingya man who had lived in Burma his whole life and had no right to enter or reside there. The applicant claimed he experienced systematic persecution from the Burmese authorities who wanted to kill Rohingya because they were Muslim and not Buddhist. The applicant claimed he was prevented from working and could only survive by farming, selling his vegetables or small goods. The applicant claimed the government confiscated and stole money from the Rohingya. The applicant also claimed that he was limited to basic education and was not able to use his ethnic language at school. The applicant claimed he could not freely practice his Muslim religion in Burma, attend mosque and attend religious events or conduct wedding celebrations in Burma.

4. The applicant claimed Rohingya were unable to use public hospitals and travel interstate and were restricted to use small clinics and had no protection from and were in constant fear of being harassed, beaten and harmed by the Burmese authorities. The applicant claimed the Burmese authorities seized his family’s property when he was young, beat his father and vandalised and closed his father’s store in 1990. The applicant claimed the authorities confiscated his goods, took his money and assaulted and verbally abused him. The applicant claimed his village was attacked and the mosque burned by the Burmese authorities and monks, and the applicant and his family escaped harm by fleeing to a nearby village. The applicant also claimed the authorities knew he had travelled to Australia and interrogated his family, and would detain and kill him if he returned.

The Delegate

1. The delegate found the applicant was a stateless person and a former habitual resident of Burma and therefore assessed the applicant’s claims against that country. The delegate accepted several of the applicant’s claims and found that the applicant had embellished other claims in relation to harassment in Rangoon. The delegate found that the applicant was not detained for two or three days by Burmese authorities and tortured as claimed. The delegate found the applicant had constructed this claim at his Entry Interview.  The delegate did not accept the applicant was subjected to forced labour. The delegate did not accept the applicant was present during the alleged attack on the applicant’s village.

2. The delegate was not satisfied there was a real chance of the applicant being persecuted for a Refugees Convention reason and 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 Burma, there is a real risk that the applicant will be subject to significant harm.

The Tribunal

1. On 28 October 2014 the applicant lodged an application for review of the delegate’s decision made on 17 October 2014.  By letter dated 10 March 2016, the applicant was invited to attend a hearing on 26 April 2016. The applicant attended on that date to give evidence and present arguments and was represented by his migration agent by telephone at the hearing. 

2. At the start of the hearing, relevantly, the Tribunal member said:

   Your adviser is here with you by phone today and after you finish giving your evidence, I will give your adviser the opportunity to clarify anything that you have said or to put forward any additional comments.

   The Tribunal member also said:

   I am now going to discuss your claims with you. During the hearing, if I think there might be any problems with any of your claim, that is anything that might cause you to be refused a protection claim, you will have an opportunity to comment on any problem that I might mention. You will also have the opportunity at the end of the hearing to seek more time to respond to my comments.

Application of s.424AA of the Act

1. In the course of the hearing, the Tribunal member raised information with the applicant, purportedly under s.424AA of the Act in relation to the applicant’s entry interview. This was in respect of the applicant in having given his father’s address as being exactly the same as his address in Rangoon. The applicant’s attention was also drawn to the wife’s telephone number and address being the same as the applicant’s father.

2. It is apparent from the transcript that the Tribunal complied with its obligation under s.424AA of the Act insofar as that obligation was enlivened by ensuring that the applicant understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision as under review.

3. Further, it is apparent that the Tribunal complied with the obligation orally to invite the applicant to comment or respond to the information.  It is further apparent that the Tribunal complied with the obligation to advise the applicant that the applicant may seek additional time to comment or respond to the information.

4. At the end of the hearing, the applicant was given until 5 May 2015 to provide further written submissions or information and that was conveyed to the applicant’s migration representative. The migration representative did provide further information to the Tribunal by letter dated 5 May 2015 addressing matters including credibility concerns raised by the Tribunal in relation to the applicant. Specifically, these concerns were in relation to the credibility concerns in respect of the father’s address. It was suggested that it was plausible that there was an interpreter problem.

5. The Tribunal identified the relevant law in an attachment to the reasons for decision which was incorporated in those reasons. The Tribunal identified the applicant’s claims and evidence. The Tribunal accepted that the applicant was a Sunni Rohingya and a stateless person who was a habitual resident of Burma. The Tribunal made adverse credit findings in relation to the applicant. The Tribunal found the applicant not to be a reliable, credible or truthful witness. The Tribunal found the applicant had fabricated much of his claim in order to be granted a protection visa.

Refugees Convention Assessment

1. The Tribunal found the applicant does not have well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future. The Tribunal found that the applicant did not meet the criterion under s.36(2)(a) of the Act.

Complementary Protection Assessment

1. 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 Burma there was a real risk the applicant would suffer significant harm on the basis of the claims as outlined in the complementary protection criteria under s.36(2)(aa) of the Act. The Tribunal found the applicant did not satisfy that criteria under s.36(2) of the Act and affirmed the decision under review.

Proceedings Before this Court

1. It is apparent that there was a typographical error in the Tribunal’s reasons in relation to affirming the decision under review and those should have been raised by Counsel on behalf of the applicant in that regard. 

2. The relevant ground of the application is as follows:-

   2. That the Tribunal breached section 424AA of the Migration Act 1956 (Cth).

   Particulars

   1. The tribunal put to the Applicant transcripts of the early entry interview to the Applicant during the hearing, yet failed to follow the correct procedures pursuant to section 424AA of the Migration Act 1956 (Cth) by failing to offer the Applicant an adjournment.

3. Mr Bodisco of Counsel took the Court to the Irregular Maritime Arrival Entry interview and in particular, referred to question 12 identifying the address of the applicant from 1991 to 25 January 2013, together with a telephone number in his wife’s name, as well as information referring to the details of his father, identifying the same address. 

4. Mr Bodisco of Counsel contended that this was information that enlivened an obligation under s.424A of the Act. Mr Bodisco of Counsel took the Court to the transcript of the Tribunal. This issue was raised by the Tribunal and the Tribunal assumed that it had an obligation to comply with the s.424A of the Act.

5. Mr Bodisco of Counsel also took the Court to the reasoning of the Tribunal in paragraphs 26 to 28, where the inconsistencies were referred to in relation to the adverse credit findings in respect of the applicant. 

Consideration

1. I do not accept that the information identified is information that enlivens any obligation under s.424AA of the Act. The information is not of a kind that itself undermines, rejects or denies the applicant’s claims. Rather, the information is of a kind giving rise to inconsistencies the subject of credit deliberations by the Tribunal. Inconsistencies in relation to credit are not matters that enliven an obligation under s.424A of the Act.

2. Mr Bodisco of Counsel further submitted that there was a failure to comply with the obligation in s.424AA(1)(iv) of the Act. Mr Bodisco of Counsel contended that there is an obligation upon the Tribunal to intellectually engage with the applicant on the topic of an adjournment. Mr Bodisco of Counsel contended that what occurred was that the Tribunal concluded the oral hearing. Although complying with obligations pursuant to s.424AA(1)(b)(i), (ii) and (iii) of the Act, it was submitted that the Tribunal had not complied with a mandatory obligation under s.424AA(1)(b) (iv) of the Act.

3. Section 424AA is as follows:-

   Information and invitation given orally by Tribunal while applicant appearing

   (1)  If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a)  the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  if the Tribunal does so--the Tribunal must:

   (i)  ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)  orally invite the applicant to comment on or respond to the information; and

   (iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)  if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   (2)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

4. It is important to take into account the object of the Act as identified in s.4 of the Act as well as the context in which that provision appears. The provision appears in Division 4 of Part 7 of the Act.

5. Section 420 in Division 3 of Part 7 of the Act identifies that the Tribunal is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case. In Division 4 of Part 7 there is also a provision that refers to the powers of the Tribunal in s.427 of the Act which provides as follows:-

   Powers of the Tribunal etc.

   (1)  For the purpose of the review of a decision, the Tribunal may:

   (a)  take evidence on oath or affirmation; or

   (b)  adjourn the review from time to time; or

   (c)  subject to sections 438 and 440, give information to the applicant and to the Secretary; or

   (d)  require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

   (2)  The Tribunal must combine the reviews of 2 or more Part 7-reviewable decisions made in respect of the same non-citizen.

   (3)  Subject to subsection (4), the Tribunal in relation to a review may:

   (a)  summon a person to appear before the Tribunal to give evidence; and

   (b)  summon a person to produce to the Tribunal the documents or things referred to in the summons; and

   (c)  require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and

   (d)  administer an oath or affirmation to a person so appearing.

   (4)  The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia.

   (6)  A person appearing before the Tribunal to give evidence is not entitled:

   (a)  to be represented before the Tribunal by any other person; or

   (b)  to examine or cross-examine any other person appearing before the Tribunal to give evidence.

   (7)  If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.

6. On the facts of the present case, the Tribunal did adjourn the review at the end of the oral hearing on 26 April 2016. It is apparent that the Tribunal provided the applicant with additional time for comment or respond at the end of the oral hearing. That opportunity was in compliance with the obligation under s.424AA(b)(iii) of the Act. In substance, s.424AA(1)(b)(iv) of the Act concerns a continuation of the review by the Tribunal, rather than the Tribunal making its decision upon review.

7. It is apparent that what occurred in the present case is that there was an adjournment of the review and that the Tribunal did not make its decision on the review until after the opportunity given to the applicant to provide further information, which the applicant took advantage of.  The Tribunal made its decision on the review on 27 May 2016. 

8. It is relevant that the adjournment of the review, under s.424AA(b)(iv) of the Act is a discretionary matter for the Tribunal if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

9. This discretionary power permits the Tribunal to properly control the conduct of the review consistent with the obligations under s.420 of the Act and the object of the Act in order to prevent an abuse of its process. There was no failure to comply with s.424AA(b)(iv) of the Act.

10. Even if, contrary to the findings made by this Court, the obligation under s.424A of the Act was enlivened, for the reasons given, the Tribunal complied with the mandatory obligations under s.424AA of the Act.

11. No jurisdictional error of the kind in Ground 2 is made out. The Court notes that Ground 1 was formally abandoned by Counsel for the respondent. 

Conclusion

1. Notwithstanding the skilful and helpful submissions by Mr Bodisco, this is not a case where the jurisdictional error has been made out. 

2. The application is dismissed. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  22 December 2016