BRO16 v Minister for Immigration
[2019] FCCA 393
•19 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRO16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 393 |
| Catchwords: MIGRATION – Protection (class XA) visa – whether tribunal denied applicant procedural fairness and natural justice – whether tribunal failed to give applicant an opportunity to address issues and grounds upon which the protection visa was refused – applicant on notice of dispositive issues relevant to his case – arguments not raised at tribunal hearing – grounds without particulars – application dismissed. |
| Legislation: Migration Act 1958, s.424A |
| Cases cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 |
| Applicant: | BRO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1335 of 2016 |
| Judgment of: | His Honour Judge J D Wilson QC |
| Hearing date: | 19 February 2019 |
| Date of Last Submission: | 19 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 19 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The application filed 6 July 2016 is dismissed.
The applicant to pay the first respondent’s costs in the fixed amount of $5 000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1335 of 2016
| BRO16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this court on 6 July 2016 the applicant sought judicial review of a decision of the Administrative Appeals Tribunal made on 2 June 2016. By that decision the tribunal affirmed a decision of the delegate not to grant the applicant the protection visa that he sought.
In this court the applicant relied on three grounds for his application. They were as follows (with errors in the original) –
(1)The Tribunal failed to accord me the procedural fairness and natural justice as described in Migration Law
(2)The Tribunal decision-maker has failed to give me an opportunity and to address the issues and grounds upon which the protection visa was refused. By delegate of Minister I sought additional time to submit my claims which was disallowed
(3)The tribunal made a decision disregarding my evidence submitted and assessing regulation and not complied with Section 359A of the Migration Act
That’s how it was in the original. The applicant appeared before me and gave evidence. He endeavoured to engage in a narration of the death of various family members but when questioned he conceded that he did not take issue with the decision of the tribunal in terms of factual or legal issues. Instead, the applicant complained about the result and said that the result should have been different. As a matter of longstanding principles of migration law it is not competent for me on a judicial review application to engage in a review of the merits of the decision as judicial review is fundamentally different from a merits review. Cases at the highest level have told judges such as me that I am not to engage in a merits review. Those cases include Attorney-General (NSW) v Quin,[1] Australian Broadcasting Tribunal v Bond,[2] Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[3] and Chan Yee Kin v Minister for Immigration and Ethnic Affairs.[4] There are others.
[1] (1990) 170 CLR 1
[2] (1990) 170 CLR 321
[3] (1996) 185 CLR 259
[4] (1989) 169 CLR 379
To better understand the basis of the application before me today, it is necessary to say something of the facts that gave rise to the applicant’s protection claim. The applicant arrived in Australia as a student in 2007. After seeking various other visas between 2007 and 2014 in the year 2014 he applied for a protection visa. His file was dealt with by the minister’s delegate in September 2015 and as previously mentioned, the tribunal affirmed the delegate’s decision on 2 June 2016.
None of the applicant’s grounds of application were the subject of particulars. That might have told of the fate of this application because learning in the Federal Court of considerable depth nowadays has held that an applicant who fails to give particulars of his grounds of review is likely to suffer the dismissal of his application on that ground alone. The authorities are long. They include SZNXA v Minister for Immigration and Citizenship,[5] WZATH v Minister for Immigration and Border Protection,[6] BHK15 v Minister for Immigration and Border Protection,[7] AQN15 v Minister for Immigration and Border Protection,[8] WZAVW v Minister for Immigration and Border Protection,[9] CNN15 v Minister for Immigration and Border Protection,[10] BYM16 v Minister for Immigration and Border Protection,[11] MZARG v Minister for Immigration and Border Protection[12] and DQQ17 v Minister for Immigration and Border Protection.[13]
[5] [2010] FCA 775
[6] [2014] FCA 969
[7] [2016] FCA 569
[8] [2016] FCA 571
[9] [2016] FCA 760
[10] [2017] FCA 579
[11] [2017] FCA 326
[12] [2018] FCA 624
[13] [2018] FCA 784
Synopsis
For the reasons that follow I dismiss this proceeding.
Background
The applicant is a male citizen of India born on 16 February 1986. As mentioned previously he arrived in Australia on 17 June 2007. The applicant applied for a protection (class XA) visa on 1 December 2014. The grounds of his application for protection included the following –
a)the applicant claimed his sister overheard his uncle stating they would kill him so they could obtain his share in a family property;
b)the applicant claimed he received threats from his uncle; and
c)the applicant claimed his uncles were connected to politicians and police.
After the delegate refused the applicant’s application for protection, in the tribunal the applicant was invited to attend a hearing. The applicant’s details were recorded by the tribunal between paragraphs 24 and 36 of its decision.
At paragraph 29 the tribunal recorded that the applicant’s family property was divided between his father and two uncles after the death of the applicant’s father in 2010 and subsequent thereto the applicant’s uncles sought to obtain the applicant’s share of the property.
At paragraph 34 of the tribunal’s reasons the tribunal recorded that a police report had been lodged although the applicant did not know of its contents and the applicant believed he would not be able to obtain police protection in India.
In paragraph 36 of its reasons the tribunal recorded that the applicant claimed he would experience hardship if returned to India as he had no friends nor savings.
The applicant’s claims were then addressed by the tribunal between paragraphs 38 to 49 of its reason. Doing the best I can to distil them as precisely as possible, they may be recorded in the following matter.
At paragraph 39 of its reason the tribunal found that the applicant was articulate and passionate in the presentation of his claims but that those claims were vague and were limited to only certain aspects of his claims with the consequence that the tribunal took the view that the applicant lacked credibility in areas that were central to his claim to protection.
In paragraph 41 of its reason the tribunal accepted as plausible that the applicant’s father and his two brothers each had an entitlement to a one-third interest of a particular parcel of land that upon the applicant’s father’s death in 2010 had been left to the applicant.
Between paragraphs 42 and 43 of its reasons the tribunal then considered the applicant’s claims that his uncles would kill him. Ultimately the tribunal found that the applicant lacked credibility saying that his claim was vague, that he adduced no documentary evidence to support it and that on key issues, in particular his dealings with the police, the applicant was unable to recall pertinent issues.
At paragraph 44 of its reasons the tribunal addressed the applicant’s claim that he could not approach police and found that it was inconsistent with his claim that his sister had lodged a police report.
In paragraph 46 of its reasons the tribunal recorded that the applicant could not provide details of and concerning the family property.
At paragraph 48 of its reasons the tribunal determined that it was not satisfied that the applicant’s credibility enabled it to be persuaded to the requisite degree that the applicant’s life had been threatened by his uncles with the consequence that the tribunal said that it was not satisfied the applicant faced a real chance of harm by reason of activities associated with his uncles.
In paragraph 49 of its reasons the tribunal addressed the applicant’s claims that he would experience difficulties upon his return to India having lived in Australia for such an extended period but found that such concerns did not amount to serious harm or significant harm as defined by the Migration Act and observed that the applicant would be able to find employment and support for himself in India if returned.
In this court
The details of the applicant’s grounds for application of this court have already been set out, and I do not propose to repeat them. Let me go to each ground in detail.
Ground one
Ground one was an ambit assertion that the tribunal failed to accord the applicant procedural fairness and natural justice. He gave no details of any such failure. That ground is to be contrasted with the evidence he gave before me to the effect that he made no substantive complaint about tribunal’s conduct of the hearing but instead complained about the result and that he took the view that the result was wrong as to its conclusion.
The absence of particulars has already been the subject of observation above. The minister took me in written submissions to one only of the cases extracted above, namely, the decision of WZAVW. There are very many others and they all point in the same direction.
In my view ground one was devoid of merit. I reject it.
Ground two
Ground two contained an assertion that the tribunal decision‑maker, which I presume meant the member of the tribunal, failed to give the applicant an opportunity to address issues and grounds upon which the protection visa was refused. Ground two is in two parts. The first sentence relates to the activities of the tribunal. The second component of ground two relates to the activities of the delegate.
In judicial review applications the activities of the delegate are irrelevant. Cases such as Wu v Minister for Immigration and Ethnic Affairs,[14] Yilmaz v Minister for Immigration & Multicultural Affairs,[15] Zubair v Minister for Immigration and Multicultural and Indigenous Affairs,[16] and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed[17] all point to the one conclusion that the activities of the delegate are irrelevant in a judicial review application.
[14] (1994) 48 FCR 294
[15] (2000) 100 FCR 495
[16] (2004) 139 FCR 344
[17] (2005) 143 FCR 314
In those circumstances ground two is to be construed by reference to the first sentence of the ground. It therefore became necessary to examine precisely what the applicant was contenting in his assertion that the decision maker failed to give him an opportunity to address the issues and grounds upon which the protection visa was refused.
As with the other ground, the two sentences of the second ground were not the subject of particulars so it was almost impossible to understand what complaint the applicant was really making. However, on an examination of the history of the application before the tribunal, some procedural steps are capable of identification.
On 5 September 2015 the applicant received a copy of the delegate’s decision.
On 21 October 2015 the tribunal informed the applicant that he could provide written material or arguments to be considered.
On 5 April 2016 the tribunal invited the applicant to attend a hearing as it was unable to make a decision on the information before it. The applicant was told that he could attach such information as he wished to be considered but in response no information was provided prior to the hearing on 6 May 2016.
In those circumstances it seemed to me the minister was correct in contending that the applicant was on notice of the dispositive issues relevant to this case and that the applicant was given ample opportunity to raise with the tribunal all that he wanted to raise. He obviously failed to do so. His failure to raise with the tribunal any matters he considered apparent was of his own making and he cannot be heard to complain about that now.
Ground two was without merit.
Ground three
Ground three contained an assertion that the tribunal made a decision disregarding any evidence he submitted. Once again that ground was not the subject of particulars so it was impossible to understand what complaint the applicant really made. As was apparent from the previous ground the applicant failed to take up an invitation to provide the tribunal with whatever information upon which he relied.
The tribunal hearing was conducted in circumstances that did not disclose any irregularity. It is well known that according to s 424A the tribunal is under no obligation to put to an applicant its thought processes, its subjective appraisals or preliminary views, including any views it may have about the credibility of the applicant. I canvassed those matters and others in AUF16 v Minster for Immigration & Anor.[18]
[18] [2018] FCCA 3828
To the extent that the applicant was in reality complaining about the tribunal’s treatment of inconsistencies in his evidence it seemed to me that the tribunal’s assessment of the applicant’s claims between paragraphs 38 and 51 of its reasons indicated a careful attention to the inconsistencies raised but ultimately the tribunal seemed to have placed its reliance on the fact that the applicant’s overall veracity was wanting. The applicant was unable to recall key events and he was unable to persuade the tribunal, as it fell to him to do, that he was entitled to the protection visa that he sought on the basis that Australia owed protection obligations to him. In my view, the tribunal made no error in its treatment of his claims.
It seemed to me that the observations of the tribunal in its reasons between paragraphs 40, 41, 42, 43 and 44, were open on the evidence. I detected no error.
Conclusion
For those reasons this application for judicial review is dismissed. The applicant must pay the minister’s costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC
Associate:
Date: 25 February 2019
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