BVU15 v Minister for Immigration and Border Protection
[2016] FCA 1446
•10 November 2016
FEDERAL COURT OF AUSTRALIA
BVU15 v Minister for Immigration and Border Protection [2016] FCA 1446
Appeal from: BVU15 v Minister for Immigration & Anor [2016] FCCA 1568 File number(s): QUD 495 of 2016 Judge(s): SIOPIS J Date of judgment: 10 November 2016 Date of hearing: 10 November 2016 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 35 Counsel for the Appellant: The Appellant did not appear. Counsel for the First Respondent: Ms A Stoker Solicitor for the First Respondent: Clayton Utz ORDERS
QUD 495 of 2016 BETWEEN: BVU15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
10 NOVEMBER 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the costs of the first respondent, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
This is an appeal from a decision of the Federal Circuit Court of Australia which is dated 13 June 2016.
The appeal was listed for hearing today at 10.15 am. It is now 10.30 am. The appellant has not appeared. I asked the Court officer to call the matter outside the Court. The Court officer has done so. The appellant has not answered the call.
In the circumstances, the first respondent has applied to have the appeal dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and r 36.75 of the Federal Court Rules 2011, on the ground that the appellant has failed to appear at the hearing of the appeal. I dismiss the appeal on that ground.
I will, however, in any event, have regard to the merits of the appeal because, in my view, the appeal is without merit.
The appellant is a 28 year old man from the Punjab state in India. The appellant entered Australia in March 2009 as the holder of a student visa. That visa expired on 4 April 2011. The appellant then applied for, and was refused, a subclass 485 visa. The appellant challenged that decision before the Migration Review Tribunal (the Tribunal), the Federal Circuit Court, and, ultimately, this Court. The appellant was unsuccessful in each of those proceedings.
Then, in June 2014, following those unsuccessful proceedings, the appellant applied for a protection visa.
The appellant claimed to be a follower of the Dera Sacha Sauda religion and he claimed that he and his family had suffered harm in the past by reason of their following of Dera Sacha Sauda. The appellant claimed that members of his family were targeted by the Sikh Youth Federation (SYF) because they had organised Dera Sacha Sauda related prayer groups at their home and the members of the SYF had threatened to kill the appellant and his family. The appellant said that he feared that he would suffer harm on this account if he was returned to India.
On 23 December 2014, the appellant was invited, by letter, to attend an interview with a delegate of the first respondent. That interview took place in January 2015 and was recorded. At that interview the appellant provided to the delegate a two page undated statement in support of his claim, and answered questions put to him by the delegate.
On 13 February 2015, the delegate refused the grant of the protection visa. The delegate referred to a number of matters which undermined the appellant’s credibility. The delegate did not accept that the version of events which the appellant had given had actually occurred.
THE TRIBUNAL
On 12 March 2015, the appellant applied to the Tribunal to review the delegate’s decision.
On 17 July 2015, the Tribunal wrote to the appellant inviting him to attend a hearing, and to give evidence and present arguments. The letter stated that the Tribunal could not make a finding in the appellant’s favour on the information it had in its possession, and noted that if he did not attend the hearing a decision may be made in his case without further notice. The Tribunal advised the appellant, on 6 August 2015 and on 13 August 2015 by SMS message, of the date and time of the hearing.
The appellant did not provide any further documentation to the Tribunal in response to the Tribunal’s invitation; nor did he attend the hearing.
The Tribunal conducted the appellant’s review on the basis of the material that had been before the delegate, namely, the two page statement which the appellant had given to the delegate and the record of interview with the delegate.
On 19 August 2015, the Tribunal affirmed the delegate’s decision to refuse a grant of the protection visa.
In its reasons the Tribunal stated that it had exercised power under s 426A of the Migration Act 1958 (Cth) which permits the Tribunal to make a decision in review without taking any further action to enable the appellant to appear before it.
The Tribunal also stated that it was not satisfied that the appellant had a well-founded fear of persecution by reason of his following of the Dera Sacha Sauda. The Tribunal went on to say that it was unable to reach the requisite state of satisfaction due to its concerns about the genuineness of the appellant’s claims and those concerns were founded on his vague claims, the implausibility and inconsistency of his claims, and his delay in applying for a protection visa.
The Tribunal also considered the complimentary protection provisions and found that, for the same reasons, as applied to his protection visa application, the appellant did not have a real risk of suffering significant harm if he returned to India.
The Tribunal also observed that had the appellant appeared at the Tribunal hearing, it would have sought further information on various aspects of the appellant’s claim.
THE FEDERAL CIRCUIT COURT
On 9 September 2015, the appellant commenced an application in the Federal Circuit Court for judicial review of the Tribunal’s decision.
The first ground of review was that the Tribunal had failed to act in accordance with s 424A and s 424AA of the Migration Act, in that it had failed to give the appellant clear particulars of the information it considered would be part of the reasons for affirming the decision under review, to ensure the appellant understood why the information was relevant and the consequences of it being relied upon, and to invite the appellant to comment upon, or respond to, that information.
The primary judge found that s 424A(1) of the Migration Act had no application in the circumstances of this case. This was because, said the primary judge, the Tribunal’s decision was not founded on “information” which fell within the ambit of s 424A(1).
The primary judge referred specifically to the following observations of the High Court in SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18] (SZBYR):
[I]f the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1).
The primary judge also found that s 424AA of the Migration Act had no application.
The primary judge, accordingly, dismissed the first ground of review.
The second ground of review was that the decision of the Tribunal was unjust, and made without taking into account the full gravity of the appellant’s circumstances and the consequences of the claim.
The primary judge dismissed the second ground of review on the basis that it sought to have the Federal Circuit Court engage in a merits review, which was beyond its jurisdiction.
THE APPEAL
By a notice of appeal, dated 29 June 2016, the appellant raised two grounds of appeal.
The first ground of appeal is that the Tribunal’s decision was manifestly unreasonable.
The first ground of appeal should be rejected on the basis that there was no ground of review before the Federal Circuit Court that the Tribunal’s decision was manifestly unreasonable; and the prospects of success of any such ground of appeal are non‑existent.
The second ground of appeal appears to address the second ground of review before the Federal Circuit Court. This ground of appeal should be dismissed because the Federal Circuit Court was correct to characterise the ground of review as an attempt to have the Federal Circuit Court engage in a merits review of the Tribunal’s decision.
Although not expressly raised as a ground of appeal, I have, in any event, had regard to the Federal Circuit Court’s reasons for decision in respect of the ground of review based on s 424A and s 424AA of the Migration Act.
In my view, the Federal Circuit Court did not err in characterising the basis upon which the Tribunal had made its decision as not constituting the “information” which is contemplated under s 424A(1)(a) of the Migration Act. The Tribunal dismissed the appellant’s application because of the implausibility and inconsistency in the appellant’s claims. The observations of the High Court in SZBYR to which the primary judge referred, were germane to the circumstances before the Federal Circuit Court.
Secondly, in relation to the question of s 424AA of the Migration Act, that section has no application because the appellant had not appeared at the Tribunal’s hearing.
In those circumstances, the appeal is also dismissed on its merits.
I will hear the first respondent on costs.
I certify that the preceding thirty‑five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 1 December 2016
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