BWI18 v Minister for Home Affairs - [2019] FCCA 1769

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWI18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1769

Catchwords:
MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – where Applicant applied to the Tribunal for review of a previous Tribunal decision (First Tribunal decision) – differently constituted Tribunal found it had no jurisdiction to review the First Tribunal decision – whether Second Tribunal decision is affected by jurisdictional error – whether Applicant has sought review of the First Tribunal decision – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.36, 338, 347, 411, 412, 476, 477

Migration Regulations 1994 (Cth), reg.4.02

Cheng v Minister for Immigration and Citizenship [2011] FCA 1290
MZABP v Minister for Immigration & Ors [2015] FCA 1391, (2015) 242 FCR 585
MZABP v Minister For Immigration and Border Protection (No 2) [2016] FCAFC 138
Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491; (2000) 75 ALJR 470
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940

Applicant:

BWI18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1034 of 2018

Judgment of:

Judge Baird

Hearing date:

14 June 2019

Date of Last Submission:

14 June 2019

Delivered at:

Sydney

Delivered on:

14 June 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms M Butler, Sparke Helmore

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1034 of 2018

BWI18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore, revised from transcript)

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth), in which the Applicant, by a combination of his application and affidavit in support, seeks judicial review of a decision of the Administrative Appeals Tribunal dated 13 March 2018. In that decision, the Tribunal determined that it did not have jurisdiction in respect of the Applicant’s application to the Tribunal.

Background

The Applicant, born in 1993, is a citizen of Malaysia. He arrived in Australia by plane on 20 October 2016 as the holder of a tourist visa, specifically, a visitor (class UD-601) visa. On 12 January 2017, he applied for a Protection (class XA) Visa.
The Applicant did not attend an interview before the Delegate, although he had been invited to do so. On 31 March 2017, a Delegate of the Minister for Home Affairs (then the Minister for Immigration and Border Protection) refused to grant the Applicant the Visa. On about 6 April 2017, the Applicant applied for merits review to the Tribunal (First Tribunal). On 15 January 2018, the Applicant attended a hearing at the First Tribunal, to make submissions and give evidence. He was self-represented. He did not present any written evidence at that hearing (as is revealed by the decision record), but gave oral evidence. On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1769
Decision Date: 14 June 2019

CaseChat Overview and Summary

The applicant, BWI18, sought judicial review of a decision by the Refugee Review Tribunal dated 13 March 2018. This decision, referred to as the Second Tribunal decision, found that the Tribunal lacked jurisdiction to consider the applicant's second application for review, which had been lodged on 3 March 2018. The applicant's initial application to the Tribunal, dated 6 February 2018 (the First Tribunal decision), had been unsuccessful.

The central legal issue before the Court was whether the Refugee Review Tribunal had erred in law by determining it lacked jurisdiction to hear the applicant's second application. This determination was made by a differently constituted Tribunal to the one that made the First Tribunal decision. The First Tribunal had rejected the applicant's claims for refugee status, finding that the applicant did not meet the criteria under sub-sections 36(2)(a) or (aa) of the relevant Act.

The Court's reasoning focused on the Tribunal's jurisdiction. The First Tribunal's decision had been based on adverse credibility findings, citing significant inconsistencies and a lack of specificity in the applicant's written statement and oral evidence. The Tribunal had expressed concerns that the applicant's evidence was too vague to be accepted as reflecting personal experience, particularly regarding alleged conflicts and threats in Malaysia. The Second Tribunal, however, did not engage with the merits of the refugee claim but instead concluded it lacked jurisdiction over the second application. The applicant sought judicial review of this jurisdictional finding.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, on 3 March 2018 the Applicant lodged a second application to the Tribunal to review a decision dated 6 February 2018 (that is the First Tribunal decision, by reference to the date of the cover letter). On 13 March 2018, the Tribunal (differently constituted from the First Tribunal), determined that it did not have jurisdiction in respect of the application made 3 March 2018 (Second Tribunal decision). On 12 April 2018, the Applicant applied to this Court for judicial review of the Tribunal’s decision dated 13 March 2018, that is the Second Tribunal decision. The First Tribunal was not satisfied that the Applicant met the refugee criteria in sub-ss.36(2)(a) or (aa) of the Act. The First Tribunal rejected the Applicant’s claims in their entirety, expressing adverse credibility findings based on significant inconsistencies and lack of specificity, and particularity in, and between, the Applicant’s written statement and his oral evidence. At [21] of the First Tribunal decision, the Tribunal stated:Overall, the applicant’s evidence was so vague that the Tribunal has concerns as to whether the applicant was drawing on his own experiences at all. (See findings below). The findings at [29] and [30] of the First Tribunal decision reflected these concerns: [29] In both his written claims and his oral evidence at hearing, the applicant alluded to a friend who had conflict with other Muslims over some religious activities, and the applicant being targeted for having supported his friend. Beyond those basic elements, the two accounts differ sharply, despite the applicant's assurance at hearing that he had been 'careful' with his written application. Moreover, the applicant's evidence at the Tribunal hearing – of his religious activities in Kelantan, and the consequent conflict with local villagers – was hesitant and vague. The Tribunal does not accept that he was speaking from personal lived experience. Furthermore, even as presented, the claimed conflict with the villagers in Pasir Puteh sheds no light on why the applicant concludes that it is unsafe for him in his home area or throughout Malaysia.[30] Having considered all the claims and evidence cumulatively, the Tribunal finds that the applicant did not engage in any 'missionary work' with his friend Iqwan in Pasir Puteh, which aroused religious, political or personal sensitivities. It also does not accept the following claims: - that he (or his friend Iqwan) were threatened, ordered out of the local area or attacked; that a person followed the applicant to his home village (in a menacing way); that the applicant feared for his safety anywhere in Kelantan, or Malaysia as a whole; or that he left Malaysia for any reasons associated with his protection claims. The Tribunal also does not accept that the applicant sought police protection; that he feels the police failed to respond adequately to any complaint (on this or any other occasion); or that he fears State protection would not be available to him for any reason should he require it in the future.

Ratio Decidendi

Legal Principle Established

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