BRP17 v Minister for Immigration and Anor

[2020] FCCA 812

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRP17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 812

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to afford an opportunity for the applicant to comment on the s 438 certificate – whether the Tribunal took into account irrelevant considerations – whether the Tribunal made a finding without supporting evidence – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438, 476

Applicant: BRP17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 217 of 2017

Judgment of: Judge Street

Hearing date: 8 April 2020

Date of Last Submission: 8 April 2020

Delivered at: Sydney

Delivered on: 8 April 2020

REPRESENTATION

The Applicant appeared in person via video link.

Solicitors for the Respondents: Ms B Rayment via video link
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The hearing will be recorded by Microsoft on Microsoft Teams and by Auscript on the Judge’s microphone and no other recording of the hearing is to be made.

3. A link to the Microsoft Teams recording will be uploaded to the “Transcript” folder on the Electronic Court File may be made available to the parties upon request.

4. The application is dismissed.

5. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 8 April 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 217 of 2017

BRP17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

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 31 March 2017 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) visa (‘the Protection visa”). 

2. The applicant was found to be a citizen of Malaysia, and his claims were assessed against that country. 

3. The applicant arrived in Australia as the holder of an Electronic Travel Authority on 12 May 2009. That visa expired on 12 August 2009, and the applicant then remained in the country unlawfully until applying for protection on 12 June 2015. 

4. The applicant claimed to fear harm by reason of being a Buddhist and having Chinese background and alleged that he had suffered abuse from particular Muslims and that he had lost contact with his family.

5. On 19 May 2016, the Delegate found the applicant failed to meet the criteria for the grant of a Protection visa. On 17 June 2016, the applicant applied to the Tribunal for review. The applicant was invited to and attended a hearing before the Tribunal on 29 March 2017 to give evidence and present arguments. 

6. The Tribunal summarised the background to the application for review. 

7. The Tribunal summarised the relevant law in an attachment to the Tribunal’s reasons. 

8. The Tribunal summarised the applicant’s background and claims. 

9. The Tribunal referred to a s 438 certificate (“the certificate”) that it found to be invalid. The Tribunal identified that the documents the subject of the certificate were not relevant. The Tribunal raised the existence of the certificate and the irrelevant documents with the applicant, and the applicant indicated to the Tribunal that he did not wish to comment. In these circumstances, the applicant suffered no practical injustice in the conduct of the review by reason of the existence of the invalid certificate and the irrelevant documents the subject of the certificate.

10. The Tribunal referred to credibility concerns in relation to the applicant’s evidence in respect of the delay that had occurred in seeking protection, his changing and inconsistent evidence and the reasons for his fears in respect of returning to Malaysia. The Tribunal found the applicant not to be a credible or truthful or reliable witness. 

11. The Tribunal identified specific problems with the applicant’s evidence and gave further examples of the applicant’s inconsistent and changing evidence and his delay in seeking protection and in leaving Malaysia. 

12. The Tribunal also identified concerns about the applicant’s assertion that he was a vulnerable and helpless person and found that the applicant’s evidence about a particular email address was evasive. 

13. The Tribunal identified raising with the applicant these inconsistencies and that the applicant did not wish to comment on the same, which the Tribunal found further undermined the applicant’s credit. 

14. The Tribunal concluded that the applicant was not a witness of truth and had fabricated the accounts of the events and claimed fears. 

15. The Tribunal made express findings rejecting each of the applicant’s claims and did not accept that the applicant fears returning to Malaysia.

16. The Tribunal found that the applicant did not meet the criteria under s 36(2)(a) of the Act or s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 20 April 2017, and on 1 June 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed by the applicant. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. 

3. The applicant put no oral submissions when invited to do so by the Court and did not suggest that the Tribunal’s decision was the subject of error. 

The grounds

1. The grounds in the application are as follows:

   1.The Tribunal failed to afford fair opportunity and time for the applicant to comment on s438(1) certificate.

   2.The Tribunal erred in taking irrelevant conditions into account, namely, the Tribunal concluded the applicant is not a witness of credibility simply because the applicant provided inconsistence of how long his visa lasted when he arrived. The Tribunal failed to consider the fact that the applicant has no point to tell the lie about his Australia visa.

   3.The Tribunal made a finding without supporting evidence, namely, there is no evidence showing that the applicant has ever used the email address of email address. The Tribunal failed to take into account of the applicant’s explanation.

Ground 1

1. For the reasons already given, no jurisdictional error arises by reason of ground 1. In summary, that is because the invalid certificate was expressly raised with the applicant, and the Tribunal identified that the documents were irrelevant and the Tribunal’s reasons record that the applicant did not wish to comment when invited to do so by the Tribunal. 

2. The applicant suffered no practical injustice in the conduct of the review by reason of the invalid certificate or by reason of the irrelevant documents the subject of the certificate. 

3. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the Tribunal made adverse credibility findings not just simply because of the delay by the applicant in seeking protection after arriving in Australia. The Tribunal summarised logical and rational inconsistencies in relation to the applicant’s evidence, and the adverse credibility findings were open for the reasons given by the Tribunal.  It is not apparent that the applicant raised with the Tribunal that there was no point in the applicant telling lies. Further, this is in substance an invitation to engage in impermissible merits review. Accordingly, there was no failure to consider an issue or integer of the applicant’s claims by the Tribunal. 

2. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, this reflects disagreement with the Tribunal’s adverse credibility finding concerning the email address. Given the applicant’s assertions of vulnerability, it was open to the Tribunal to raise with the applicant the email address, and it was a logical and rational matter to take into account in relation to the applicant’s credibility. 

2. The Tribunal’s reasons expressly identify raising the issue with the applicant, and the Tribunal expressly referred to the applicant’s explanation but did not accept the same. That was an adverse finding that was open to the Tribunal. There was no failure to take into account the applicant’s explanation. 

3. No jurisdictional error is made out by ground 3.

4. As the application fails to make out any jurisdictional error, the application is dismissed. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 8 April 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:    

Date: 19 May 2020

CORRECTIONS

1. Paragraph 20 line 12 – amended to remove the email address

Amended: 29 June 2020