BVO16 v Minister for Immigration

[2016] FCCA 2420

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVO16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2420

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to consider the applicant’s claims and evidence – no jurisdictional error identified – application dismissed. 

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 422B, 423A, 425, 476.

Judiciary Act 1903 (Cth), s.39B.

Applicant: BVO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1878 of 2016

Judgment of: Judge Street

Hearing date: 16 September 2016

Date of Last Submission: 16 September 2016

Delivered at: Sydney

Delivered on: 16 September 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: Minter Ellison Lawyers

ORDERS

1. The references to the pseudonym BUO16 found on the documents filed by the Applicant and on the Electronic Court File in matter number SYG1878/2016 be deleted and replaced with the pseudonym BVO16.

2. The Court declines to grant the First Respondent an opportunity to file a cross-claim under s.476 of the Migration Act 1958 (Cth) or to file a fresh s.39B application or an application in this Court under s.476 of the Migration Act 1958 (Cth).

3. The oral application by the First Respondent for leave to file a substantive application or to dispense with the filing of the same is dismissed.

4. The application is dismissed.

5. The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1878 of 2016

BVO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Leave sought by the First Respondent to file a cross-claim and s.39B application

1. Mr Kaplan of Counsel on behalf of the first respondent seeks leave to file in these proceedings, a substantive cross-claim to seek relief in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 June 2016 under s.39B of the Judiciary Act 1903 (Cth). Relief is sought for the purpose of seeking declarations that the decision of the 21 June 2016 was made in excess of jurisdiction and should be quashed and also seeking a declaration that the applicant’s application had been validly withdrawn at the time of the decision of the Tribunal on 7 September 2015.

Background to relief sought

1. The first notice of this relief on behalf of the first respondent was contained in submissions filed on 9 September 2016.  The proceedings were commenced on 19 July 2016.  Orders were made by a Registrar of the Court on 11 August 2016 fixing the matter for hearing and providing a timetable for the service of the electronic court book and a hard copy court book, as well as an amended application, affidavit evidence and submissions by both parties.

2. The nature of the relief being sought in the submissions of the first respondent is substantive relief and cannot be raised by means of a prayer for relief for this Court in the course of submissions. Substantive proceedings of the kind under s.39B of the Judiciary Act 1903 (Cth) might have been able to be brought by a cross-claim. However, this was an issue that must have been patent at the time of, at the latest, the compilation of the court book.

3. The grounds of the application are, in substance, that there was a purported withdrawal of what was a valid application for review by reason of communications from the applicant.

4. Administrative proceedings are not ones in respect of which estoppels arise in relation to the conduct of the review. It is apparent that at the time of the decision of the Tribunal on 7 September 2015, purporting to hold that the Tribunal did not have jurisdiction, the applicant had conveyed that he wished to withdraw the suggestion that he was not pursuing his application for review. There was no basis upon which the Tribunal was entitled to hold the applicant to earlier communications conveying a desire to withdraw the application.

5. At the time of the purported decision that the Tribunal had no jurisdiction on 7 September 2015, the Tribunal was aware that the applicant had conveyed that he wished to pursue his valid application for review. The purported decision of 7 September 2015, to the effect that the Tribunal did not have jurisdiction, was misconceived and without substance. The Tribunal did not make a valid decision in relation to the application for review. The application by the first respondent for relief of the kind identified lacks substance and has been raised too late.

6. It is for these reasons the Court declines to avail the first respondent an opportunity to file a cross-claim or to file a fresh s.39B application in these proceedings of the kind foreshadowed in the written submissions.

Background to the application  

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Tribunal made on 21 June 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Myanmar and his claims were assessed against that country. The applicant was born in Myanmar and lived there until February 2012 when together with another person, the applicant travelled to Thailand enroute to Malaysia. 

3. The applicant stayed in Malaysia for approximately 11 months and claims he then travelled to Indonesia where he stayed for about three months. In March 2013, the applicant departed Indonesia for Australia and arrived in Australia at Darwin on 28 March 2013. 

4. On 31 July 2013, the applicant applied for a Protection (Class XA) visa.  The applicant claimed to fear harm in Myanmar because he is Rohingya, Muslim and allegedly stateless. The applicant feared harm from the authorities by reason of a crackdown on Muslims and the Rohingya.  The applicant also claimed to fear harm because of the circumstances in which he obtained his green card. 

The Delegate’s Decision

1. On 30 April 2015, the delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugees Convention reason and was not satisfied the applicant had a well-founded fear of persecution.

2. The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Myanmar, there is a real risk that the applicant will suffer significant harm.

3. On 22 May 2015, the applicant filed a valid application for protection.  Thereafter, the applicant sent certain communications to the Tribunal initially suggesting that he wished to withdraw the application for review of the decision of the delegate in relation to himself.

4. On 18 August 2015, the applicant conveyed to the department that he wished to pursue his valid visa application. That information was conveyed to the Tribunal.

The Tribunal Decision - 7 September 2015

1. On 7 September 2015, the Tribunal erroneously held it did not have jurisdiction in the matter because of the purported withdrawal of the application. It is apparent that at the time of the decision of the Tribunal, the applicant was not seeking to maintain a withdrawal of the application for review and was seeking to pursue what was clearly a valid application. The decision of 7 September 2015 holding that the Tribunal did not have jurisdiction was erroneous and of no effect.

Hearing before the Tribunal – 4 March 2016

1. The applicant was invited to attend a hearing before the Tribunal by a letter dated 4 February 2016 to be held on 4 March 2016. The applicant appeared on that date to give evidence and present arguments. 

2. Prior to the hearing, material was provided to the Tribunal on 26 February 2016, being a statement of the applicant as well as a statement of his wife. On 26 February 2016 further information was presented together with a further submission by the applicant’s migration representative. The applicant’s migration representative also attended the hearing.   

3. Following the hearing, on 28 March 2016 further material was submitted on behalf of the applicant, including a further statement by the applicant. That material was referred to in the Tribunal’s reasons. 

4. On 29 March 2016 a further submission was provided to the Tribunal. This submission was also identified in the Tribunal’s reasons. The Tribunal summarised the relevant law and identified that the history in relation to the withdrawal and correctly found that the withdrawal application was not valid and that the Tribunal had jurisdiction to review the delegate’s decision.

5. The Tribunal identified the applicant’s claims and evidence as well as the submissions advanced. The Tribunal accepted that the applicant was a Muslim of Tamil ethnicity on the basis of a green card produced by the applicant and DFAT material referred to by the Tribunal.

6. The Tribunal found the applicant is a citizen of Myanmar. The Tribunal found on the basis of the evidence before it that it was not satisfied there was a real chance or, a real risk that the applicant would be exposed to violence at the hands of the authorities or Buddhists in Yangon. The Tribunal found it was not satisfied that the level of discrimination the applicant suffered in the alleged incidents identified by the applicant constituted serious or significant harm.

7. The Tribunal was not satisfied that if the applicant were to return to Yangon, there is a real chance that he will experience harm or discrimination amounting to serious harm for the reason of his ethnicity or religion. The Tribunal was not satisfied the applicant would be prevented from or denied the right to practice his religion in Myanmar. The Tribunal was not satisfied that the applicant would suffer significant harm arising out of his race and/or his religion.

8. The Tribunal was not persuaded that if the applicant were to return to Yangon he would be unable to find employment or means of earning a livelihood. The Tribunal was not satisfied that the applicant would experience significant economic hardships or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens his capacity to subsist for reasons of his religion or race or any other Refugees Convention reason. 

9. The Tribunal was not satisfied the applicant faces a real risk of significant harm arising from being related to his wife and his son. The Tribunal was not satisfied based on the evidence before it, that the applicant faces a real chance of being persecuted for the reason of his race/ethnicity, religion, his actual or imputed political opinion or his membership of a particular social group including failed asylum seekers, failed Bengali asylum seekers, failed Kalar asylum seekers, failed Muslim asylum seekers or any other group apparent on the face of the evidence.

10. The Tribunal was not satisfied that the applicant’s risk of harm for these reasons would be heightened because of the consulate’s knowledge of him or the nature of his contact with the Myanmar consulate. The Tribunal was not satisfied there is a real risk of the applicant experiencing significant harm arising from having sought protection in Australia.

11. The Tribunal addressed in detail, the circumstances in which the applicant obtained his green card and the alleged bribe paid in order to obtain the second   green card, which he used to obtain a passport. The Tribunal noted that the applicant had repeatedly provided false information to the Department with regard to his ethnicity and the nature of the documents he had obtained and possessed amongst other matters.

12. The Tribunal referred to the post-hearing statement of the applicant on 28 March 2016 reportedly introducing new claims that when he was being issued with his green card, the officer took his family registration card and used ‘liquid paper on the family list and then write over the top of it the new number.’ The applicant said that he believed the ‘irregularities’ of his green card by having two numbers, (one of which was in relation to a green card he had been issued with earlier) and the liquid paper changes on his family list would make it more likely that he would be ‘arrested and punished for fraud for paying a bribe when obtaining the second green card.’

13. The Tribunal noted that this was a claim that had not been raised before and that the irregularities were not referred to previously. The Tribunal referred to the problematic nature of the applicant’s claims relating to the bribe to obtain his passport despite the claimed irregularities and that the applicant had not claimed at any point that he had faced any problems obtaining the passport, nor had the applicant faced any other problems obtaining the second green card due to issues relating to the first green card.

14. The Tribunal made reference to the applicant’s evidence that the standard for all things in Myanmar is that a bribe is paid off for all things and that paying bribes is common in Myanmar. The Tribunal found that those statements cast doubt on the applicant’s claims that he had paid a bribe for reasons relating to his religion. The Tribunal made reference to the shifts and changes in the applicant’s evidence casting doubt on the veracity of his claims as to the payment of bribes and irregularities in relation to the documents. 

15. The Tribunal did not accept that the applicant had paid a bribe to obtain a green card. The Tribunal did not accept the applicant had been asked to pay a bribe in order to obtain a green card because of his ethnicity or religion. The Tribunal did not accept that the applicant paid a bribe in order to obtain his passport. The Tribunal did not accept that the applicant had faced any difficulties in obtaining his green card or passport. The Tribunal did not accept the applicant’s recollection of conversation with the consulate office as being reliable and did not accept that the authorities believed that he has paid a bribe or that they had already accused him of committing fraud in obtaining the second green card. The Tribunal did not accept that the applicant would be arrested or punished in connection with his green card or passport. 

16. The Tribunal did not accept any of the applicant’s speculations in his submissions of 28 March 2016 flowing from his claims relating to his documents including his claim that the authorities ‘will say’ that they have to investigate him and go back to see if he can prove that his family were citizens before 1948; that they would cancel his citizenship rights and punish him for obtaining his first ID card falsely; that they will create ‘stories’ about how he obtained the green card; that they will do all of this because he has sought protection in Australia and that they want to get rid of more Muslims; that he would not be able to renew his Citizenship Scrutiny Card; or that he would be subject to ‘ongoing’ demands for bribes. 

17. The Tribunal was not satisfied that the applicant faced a real chance of being seriously harmed for his membership of his uncle’s family or for any other reason arising of his uncle’s circumstances. The Tribunal was not satisfied that the applicant faced a real risk of significant harm arising from his uncle’s history or circumstances if he were to be removed from Australia and returned to Myanmar. 

18. The Tribunal was not satisfied there was a real chance the applicant faced serious harm amounting to persecution for the Convention reasons of his race, ethnicity, religion, his actual or imputed political opinion or his membership of a particular social group if he returned to Myanmar. 

19. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Myanmar, there is a real risk that he will be subjected to any form of harm, that would be the result of an act or omission by which severe pain or suffering, whether physical or mental is intentionally inflicted or the applicant for reasons specified in paras. (a) to (e) of the definition of torture in s.5(1) of the Act.

20. The Tribunal was not satisfied that there were substantial grounds for believing that, there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, or pain or suffering either physical or mental, such as to meet the definition of cruel or inhumane treatment or punishment in s.5(1) of the Act. The Tribunal was not satisfied that it had substantial grounds for believing that there is a real risk that the applicant will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) of the Act which refers to an act or omission that causes, and is intended to cause extreme humiliation which is unreasonable.

21. The Tribunal was not satisfied that there were substantial grounds for believing that there is a real risk that the applicant would suffer arbitrary deprivation of his life or the death penalty. It was in these circumstances the Tribunal found that the applicant had failed to satisfy the criteria in s.36(2) of the Act and affirmed the decision of the delegate.

Proceedings Before this Court

1. The grounds of the application are as follows:-

   1. The Tribunal made a jurisdictional error, in breach of the rules of procedural fairness prescribed by s.422B(3) and s.425 of the Act, by failing to put to the Applicant whether at the hearing or afterwards, its concern that “he has continued to show a tendency to tailor his evidence”.

   2. The Tribunal made a jurisdictional error, whether under s.423A or otherwise in breach of the requirement for procedural fairness prescribed by s.4228(3) and s.425 of the Act, by failing to put to the Applicant whether during the hearing or afterwards, that in relation to the late claims and evidence put forward in the Statement of 28^th March 2016 it did not accept his explanation that it arose due to recently rediscovered evidence. (referred to in paragraph 98).

   3. The Tribunal made a jurisdictional error by failing to consider the explanation for the late claims and evidence put forward in the Statement of 28^th March 2016.

   4. The Tribunal made a jurisdictional error, in breach of the rules of procedural fairness prescribed by s.422B(3) and s.425 of the Act, by failing to put to the Applicant, that it did not accept his explanation for the different manners in which he described the small irregular payment for obtaining a passport (paragraphs 96 and 97).

   5. The Tribunal made a jurisdictional error, by appearing to misunderstand the Applicant's claim to be that the green card as a class of identity cards was closed in 1982, when the Applicant did not articulate a claim to that effect or intend to articulate such a claim.

   6. The Tribunal made a jurisdictional error, by asking itself a wrong legal question, whether the statement of the Embassy Official “How did you get that green card? This has been closed since 1982. Did you pay the money to get it?” was objectively correct as a statement, rather than the correct legal question which was whether the statement of the Embassy Official could have been said.

   7. The Tribunal made a jurisdictional error, in breach of the rules of procedural fairness prescribed by s.422B(3) and s.425 of the Act, by failing to ask the Applicant what the Embassy Official meant with the statement: ''How did you get that green card? This has been closed since 1982. Did you pay the money to get it?"

   8. The Tribunal made a jurisdictional error, by failing to consider the context of the conversation between the Applicant and the embassy officer referred to in the statutory declaration of 25^th February 2016, which clearly indicates that the existence of green cards post 1982, referred to in the conversation as " the second I.D.” was not in issue, and consequently the country information relied on by the Tribunal (at paragraph 100) was irrelevant material.

   9. The Tribunal made a jurisdictional error in breach of the rules of procedural fairness prescribed by s.422B(3) and s.425 of the

   Act, by failing to consider the context of the conversation between the applicant and the embassy officer referred to in the statutory declaration of 25th February 2016, which indicates that it was the particular form of “that green card” of which the applicant was possessed, in this case the “three gold green card”, in combination with its date of issue, that raise a suspicion that a bribe had been paid.

   10. The Tribunal made a jurisdictional error, in breach of the rules of procedural fairness prescribed by s.422B(3) and s.425 of the Act, by failing to put to the applicant that the grant of a passport on the basis of his green card, might be a reason to conclude that there would be no adverse interest in whether the applicant obtained the 2^nd green card by the payment of a bribe.

   11. The Tribunal made a jurisdictional error by failing to inquire into the question of what facts about that particular green card would indicate to a Myanmar official that it had been obtained by the payment of a bribe.

   12. The Tribunal made a jurisdictional error, in breach of the rules of procedural fairness prescribed by s.422B(3) and s.425 of the Act, by failing to put to the Applicant its specific concerns about the reliability of his recollections of the conversations with the Embassy official, and failing to ask him to expand on that account and explain why his account should be accepted.

   13. The Tribunal made a jurisdictional error, by failing to ask it itself the question whether the bribe payable was different for Muslims as opposed to Buddhists.

   14. The Tribunal made a jurisdictional error, in breach of the rules of procedural fairness prescribed by s.422B(3) and s.425 of the Act, by failing to put its concerns to the Applicant that his statement that a payment of bribes was the standard for all things in Burma cast doubt on his claims that he had to pay a bribe for his green card for reasons of his religious identity.

   15. The Tribunal made a jurisdictional error, in breach of the rules of procedural fairness prescribed by s.422B(3) and s.425 of the Act, by failing to put its concerns to the Applicant that his ability to travel to Maguway and Nyapidaw could support a finding that his freedom of movement was not restricted in Myanmar.

   16. The Tribunal made a jurisdictional error, by failing to ask itself whether the Applicant would have freedom of movement to visit Rakhine State, or those parts of Myanmar where massacres of Muslims were taking place since 2012.

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error.

2. The Court explained if there was a relevant legal error, it would be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair.

3. The Court explained to the applicant that if satisfied that the Tribunal’s decision was affected by relevant legal error, the Court would set aside the decision to send it back for a further hearing. The Court explained to the applicant that if the Court was not satisfied that the Tribunal’s decision was affected by relevant legal error, the Court would dismiss the application. 

4. The applicant confirmed he understood what had been said by the Court. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from Counsel 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. 

5. From the bar table, the applicant sought to maintain that the current situation in Myanmar was unsafe. The applicant maintained that he could not go back to Myanmar and sought to explain current incidents that had happened in relation to Muslims in Myanmar and the destruction of homes and mosques by the authorities. The applicant maintained that he would be persecuted because of his religion and that the authorities would not protect the applicant and that the Courts would not enforce and protect his rights.

6. In substance, what was said by the applicant from the bar table was an invitation for this Court to engage in an impermissible review of the merits. This Court does not have power to review the merits of the matter. The applicant sought to hand up material that was not before the Tribunal which the applicant explained supported his fears and claims in respect to persecution. The Court refused to accept the tender of the material and had it marked for identification as “MFI 1” on the basis that it was not relevant to the determination of whether the Tribunal’s decision was affected by a relevant legal error. 

7. Nothing said by the applicant from the bar table identified any jurisdictional error. Submissions were provided on behalf of the applicant in response to the first respondent’s submissions and in support of Grounds 1-16.

8. In relation to Grounds 1, 2 and 4, I accept the first respondent’s submission that it was not necessary for the Tribunal to put matters to the applicant in relation to the Tribunal’s assessment of the applicant’s credit. There was no breach of the procedural fairness prescribed by s.422B(3), or s.425, or s.423A of the Act.

9. In the conduct of the review by the Tribunal, on the material before the Court, I am satisfied that the applicant had a genuine and meaningful hearing. The Tribunal complied with its statutory obligations in the conduct of the review. It was a matter for the Tribunal to assess the applicant’s credit. The adverse credibility findings in relation to the applicant were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  Grounds 1, 2 and 4 fail to make out any jurisdictional error.

10. In relation to Ground 3, it is apparent that the Tribunal referred to the applicant’s statement and the adverse finding by the Tribunal in relation to the applicant’s statement on 28 May 2016 was open. There is no substance in the proposition that the Tribunal failed to consider the applicant’s claims and evidence and the statement dated 28 March 2016. Ground 3 fails to make out any jurisdictional error.

11. Grounds 5 to 14 in substance seek to impugn the Tribunal’s findings in relation to the applicant’s identity and claims in relation to the green card. It is apparent from the Tribunal’s reasons that the Tribunal correctly identified the applicant’s claims in relation to the applicant’s citizenship and the adverse findings in relation to the applicant’s claims concerning the applicant’s green card were open to the Tribunal.  Those adverse findings cannot be said to lack and evident and intelligible justification.

12. There is no substance on the material before the Court that the Tribunal misunderstood the nature of the applicant’s claims, or denied the applicant procedural fairness in the conduct of the review in relation to the green card. There was no breach of s.422B(3) or s.425 of the Act by the suggested failure to raise matters with the applicant, or the alleged failure to consider the context of alleged conversations. Further, there was no readily identifiable information in respect of which there was a duty upon the Tribunal to make further inquiry. On the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. Grounds 5 to 14 fail to make out any jurisdictional error.

13. In relation to Ground 15, it was unnecessary for the Tribunal to raise its concerns with the applicant’s credit. There was no breach of s.422B or s.425 of the Act in the conduct of the review by the Tribunal. It is apparent that the Tribunal did consider the applicant’s ability to subsist and made findings in that regard that were open. Ground 15 fails to make out any jurisdictional error.

14. In relation to Ground 16, the findings of the Tribunal were not confined in respect of the movement of the applicant to a particular location.  Ground 16 is in substance an impermissible challenge to the adverse findings of fact made by the Tribunal. Ground 16 fails to make out any jurisdictional error. 

15. The submissions advanced in writing on behalf of the applicant, marked Exhibit B, do not support any jurisdictional error in relation to Grounds 1 to 16. There is no substance in the proposition in that the Tribunal misunderstood the nature of the applicant’s claims in respect of the green card or otherwise.

16. The application is dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 17 November 2016