BXV16 v Minister for Immigration and Border Protection
[2017] FCA 743
•24 May 2017
FEDERAL COURT OF AUSTRALIA
BXV16 v Minister for Immigration and Border Protection [2017] FCA 743
Appeal from: BXV16 and Ors v Minister for Immigration and Anor [2017] FCCA 172 File number: NSD 229 of 2017 Judge: LOGAN J Date of judgment: 24 May 2017 Catchwords: MIGRATION – alleged denial of procedural fairness by Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – alleged failure to consider claims made – no denial of procedural fairness – no jurisdictional error in primary judge’s decision – appeal dismissed
PRACTICE AND PROCEDURE – representation – persons under legal incapacity – children – litigation – representative appointed for minor appellant – dispensing with service and notice requirements for appointment of litigation representative
Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth) r 9.61, r 9.63
Date of hearing: 24 May 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the Appellants: The First Appellant appeared in person with the assistance of an interpreter on behalf of the Appellants Solicitor for the Respondents: Sparke Helmore ORDERS
NSD 229 of 2017 BETWEEN: BXV16
First Appellant
BXW16
Second Appellant
BXX16, BY HIS LITIGATION REPRESENTATIVE, THE FIRST APPELLANT (BXV16)
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
24 MAY 2017
THE COURT ORDERS THAT:
1.The first appellant (BXV16) is appointed as the litigation representative of the third appellant (BXX16), a minor.
2.Incidental to Order 1, the following also be ordered:
(a)the title of the proceedings be amended so as to record as a party the third appellant (BXX16, a minor) by his litigation guardian, the first appellant (BXV16);
(b)the order for the appointment of a litigation representative take effect on and from the filing of the notice of appeal;
(c)the first appellant’s oral request made in court today be deemed to be an application to be so appointed with the need for the filing of a written consent or the service of an application being dispensed with.
3.The appeal be dismissed.
4.The appellants pay the first respondent’s costs of and incidental to the appeal, 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
(REVISED FROM TRANSCRIPT)LOGAN J:
The appellants are respectively the husband, the first appellant, BXV16; wife, the second appellant, BXW16; and their son, the third appellant, BXX16. The third appellant is a child.
To date, there has not been appointed a litigation representative for the third appellant. It is no reflection on the character, integrity or, much less, their all so obvious concern for the welfare of their son that the first and second appellants have not sought the appointment of a litigation representative for him. They are not legally qualified and their first language is not English. Upon that omission occurring to me in the course of the hearing, I drew to the attention of the male appellant, who has been the principal spokesperson for the appellants, the need for the appointment of a litigation representative for his and his wife’s son.
I granted a short adjournment so as to enable the first appellant and his wife, the second appellant, an opportunity to discuss that subject between themselves as husband and wife. Upon resuming, the first appellant informed me that he wished to be appointed have his son’s litigation representative. Rule 9.63(1) provides, materially, that a party or an interested person may apply to the Court for an order appointing a person as a litigation representative. Rule 9.61 provides that a person under a legal incapacity may start, or defend, a proceeding only by the person’s litigation representative. It necessarily follows because the third appellant is a child that he needs a litigation representative.
The Minister for Immigration and Border Protection (Minister), quite properly, did not oppose the appointment of the first appellant as his son’s, the third appellant’s litigation representative. There will be an order appointing him as his son’s litigation representative. That order will take effect on and from the date of the filing of the appeal so that there be no question, so far as the third appellant is concerned, of the appeal’s regularity. Further, insofar as the same may be necessary, I dispense with a requirement that there be a written consent for the assumption of the role of litigation representative because I am more than satisfied that the first appellant understands the need for that, is willing to undertake that role and, further, in light of an exchange before the adjournment, understands the responsibilities and burdens that can entail. I also dispense insofar as it is necessary with service of such an application. I deem the request made orally today by the first appellant to be sufficient for the purposes of appointing him litigation representative for his son.
It is, to say the least, desirable in cases where a child is also affected by a protection visa case, that those representing the Minister, where an applicant, or as the case may be, an appellant is not illegally represented, give close attention to such a need as there may be for the appointment of a litigation representative at an early stage in proceedings.
The three appellants are citizens of Bangladesh. They came to Australia on 29 March 2014 on that class of visa known as a visitor visa (subclass 600) issued the preceding year. Following their arrival on 22 April 2014, they filed with the Minister’s Department an application for that class of visa known as a protection visa. At the heart of the claim made by the first appellant for that protection visa was a fear of persecution, were he to return to Bangladesh, by the government and activists in the Awami League, as well as from adherents to the Awami League, who were his former business partners. That was because, so he claimed, of his membership and his involvement in a leadership role in another political group in Bangladesh, namely, Jamaat-e-Islami. The claims to a protection visa of the second appellant and the third appellant are derivative in the sense that they rely upon acceptance of the claim made by the first appellant.
A delegate of the Minister refused the appellants’ protection visa applications. They then sought, as the Migration Act 1958 (Cth) permits, the review of the Minister’s delegate’s decision by the Administrative Appeals Tribunal (Tribunal). On 28 June 2016, for reasons given in writing, the Tribunal decided to affirm the Minister’s delegate’s decision not to grant to them protection visas. The appellants then applied to the Federal Circuit Court of Australia (Federal Circuit Court) for judicial review of the Tribunal’s decision. On 2 February 2017, for reasons delivered orally that day, that court dismissed with costs the appellants’ judicial review application. It is from that order of dismissal that the appellants now appeal to this court.
There are three grounds of appeal. They are:
1.The Federal Court Judge Street did not follow the proper procedure of the applicable law that related to the appellants, Judicial Review Application when making the decision to dismiss the appellants’ application through the dismissing order.
2.The appellants have been denied the procedural fairness through dismissing the appellants’ Judicial Review Application.
3.The appellants believe that the Judge Street dismissal order is an improper exercise of the power conferred by the enactment.
The focus of the grounds of appeal is upon the proceedings in the Federal Circuit Court and, in particular, whether those proceedings entailed a denial to the appellants of procedural fairness. The Minister submitted that these grounds were not meaningful. I am not convinced that that is so. It is certainly the case that there is a certain lack of particularity, but it is axiomatic that any exercise of Commonwealth judicial power in a case such as the present must be exercised in a procedurally fair way. When one reads the grounds of appeal in conjunction with the appellants’ well expressed written submissions in respect of the appeal, a feature which emerges, which does provide particularity, is the assertion that the learned Federal Circuit Court judge did not give importance to the submission which had been made by them to that court. It is necessary, to do justice in this case, as it is often necessary in respect of persons without legal training whose first language is not English, to approach grounds of appeal somewhat benignly. I do not consider that I would do justice in this case if I did not approach it on the basis that the allegation advanced is that the court below did not engage with the case as sought to be made, but instead just dismissed it peremptorily. It is possible in respect of such a ground, to see in it either a denial of an opportunity to be heard or perhaps a case of a reasonable apprehension of bias. Either would be sufficient, if established, to demonstrate a denial of procedural fairness.
The difficulty for the appellants is that the materials to support such a claim are confined to the reasons for judgment of the court below, read in the context of the grounds of judicial review and the submissions in writing made by them to the Federal Circuit Court, together with inferences that one might draw. That is because the appeal record does not contain a transcript of the proceedings before the Federal Circuit Court as opposed to the proceedings before the Tribunal.
The grounds of the judicial review application were these:
1.The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Jamaat-E-Islami (JI) Party prior to my departure from Bangladesh
2.The Honorable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application.
3.The Administrative Appeals Tribunal Officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.
4.The Administrative Appeal Tribunal officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.
5.The Administrative Appeals Tribunal officer erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely politically motivated.
[emphasis in original]
Having regard to the reasons for judgment of the learned Federal Circuit Court judge, they disclose an engagement by his Honour with each of the pleaded grounds of review. Further, and as the Minister submitted on the appeal, his Honour has gone further than just examining the pleaded grounds of review, instead extending his engagement with the appellants’ case to particular submissions made in the written submissions. When one understands this, far from demonstrating a denial of procedural fairness, the contrary instead is shown. With respect, his Honour has approached the disposition of the judicial review application with consummate fairness by travelling beyond the pleaded grounds of review so as to ensure that other aspects which might have been pleaded but which were raised only in submissions were also considered.
The Tribunal in this case made an evaluative judgment, as it was required, about whether it was required to accept the claim made for a protection visa. The Tribunal was not bound to accept uncritically that claim. The Tribunal’s reasons disclose a logical basis for findings as to credibility. It is not for the Federal Circuit Court, much less for this Court, to overturn by an overzealous exercise of judicial power such reasoned evaluative judgments by the Tribunal. So to do would be subversive of the role of the courts in matters such as these.
There is no doubt, having regard to the appellants’ submissions both before the Federal Circuit Court and in writing in this Court, that the male appellant, the first appellant, and his Wife, the second appellant, emphatically disagree with the Reasons of the Tribunal and the outcome. To regard that outcome as biased or procedurally unfair can be a layperson’s description but it is not a description that coincides with a ground of jurisdictional error. Decisions made by the Tribunal as to credibility are not immune to overturning on judicial review, but again, due respect has to be afforded to reasoned, logical explanations authored by the Tribunal for credibility findings.
I have no doubt that the first and second appellants genuinely believe they will encounter all of what lies behind their reference to “problems” if they return to Bangladesh. The evaluation on the factual merits of that subject was a matter for the Tribunal. This, in essence, is the conclusion reached by the learned Federal Circuit Court judge. I see no error of law in his Honour’s conclusion, much less a denial of procedural fairness in the reaching of that conclusion. What follows from this is that the appeal must be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 5 July 2017
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