CBX15 v Minister for Immigration

[2016] FCCA 365

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBX15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 365

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – statutory interpretation – whether the Tribunal had correctly put adverse information to the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 476, 477

Applicant: CBX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2769 of 2015

Judgment of: Judge Street

Hearing date: 23 February 2016

Date of Last Submission: 23 February 2016

Delivered at: Sydney

Delivered on: 23 February 2016

REPRESENTATION

Solicitors for the Applicant: Mr R Turner
Turner Coulson Immigration Lawyers

Counsel for the First Respondent: Ms R Graycar

Solicitors for the First Respondent: Mr A Keevers
Sparke Helmore

ORDERS

1. Time is extended pursuant to s 477 of the Migration Act 1958 (Cth) up to and including 12 October 2015.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2769 of 2015

CBX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect to a decision of the Tribunal made on 27 August 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Burma, and his claims were assessed against that country. Both before the delegate and the Tribunal, the applicant claimed a fear of persecution by reason of his ethnicity, being a Muslim and being stateless.

2. Both the delegate and the Tribunal found the applicant to be a citizen of Burma, and both the delegate and the Tribunal found the applicant’s evidence that the passport was a fake was false.  Both the delegate and the Tribunal made adverse credibility findings in relation to the applicant, and the Tribunal found the applicant was prepared to fabricate evidence if he believed it would enhance his claims for protection.  The grounds of the application are as follows:

   1. The Tribunal failed to carry out its statutory duty.

   Particulars

   …

   b. The Tribunal had information which could be the reason, or part of the reason, for affirming the decision and failed to;

   (i) give clear particulars of the information;

   (ii) explain why it is relevant; and

   (iii) give the applicant an opportunity to comment upon the information

   (iv) The Tribunal failed to give the Applicant either a written or oral opportunity to comment on the information

3. I note that Mr Turner, the solicitor for the applicant, abandoned paragraph (a) and that the ground pressed was a failure by the Tribunal to comply with the requirements of s.424A of the Act. Mr Turner submitted that there was a tension between s.424A(3)(a), (b), and (ba). Mr Turner noted the legislative history of the subsequent insertion of s.424A(3)(ba).

4. Mr Turner submitted that once information was provided orally, the consequence of s.424(3)(ba) was that the orally sourced information required compliance with s.424A or s.424AA. Mr Turner submitted that the information did not lose its character if its origin was orally provided by the applicant to the department and that the original source of that information meant that there must be compliance with s.424A or s.424AA if that information was capable of meeting the requirements of enlivening the obligation under s.424A.

5. I reject that submission. Section 424A is part of a statutory scheme to ensure procedural fairness in respect of information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review. The underlying intention is for the applicant to have a fair opportunity to address information of the kind falling within s.424A if there is such information before the Tribunal.

6. Section 424A(3) does not, in my opinion, contain any such tension and can be read harmoniously. Nowhere does the provision refer to the original source or entrench orally provided information so that that information cannot lose its character by being information derived from that oral source. In the present case, it is clear that the information upon which Mr Turner relied on behalf of the applicant was the ongoing deception in relation to the applicant’s passport. Mr Turner did submit that it was the whole of para.12 and each of its parts that he contended was information enlivening an obligation under s.424A.

7. The first respondent, in its written submissions, identified that the information in relation to the falsely alleged passport was provided in the form of the Tribunal’s decision by the applicant for the purpose of the review falling within s.424A(3)(b). I accept the first respondent’s submission. I reject the proposition that the information in relation to the falsely alleged passport or the ongoing deception is in some way different.

8. It is also relevant in the present case that prior to the hearing that occurred on 12 August 2015, the applicant’s then-solicitors provided submissions to the Tribunal on 5 August 2015, amongst other things, advancing the assertion that the applicant was stateless, and by that submission continuing to advance the assertion that the passport was a fake, as well as putting submissions as to why the delegate’s decision and adverse findings of credibility, particularly in respect of the passport, as well as the applicant’s education, were matters that the Tribunal should not follow. 

9. As is manifest from those submissions, the applicant had a real opportunity to and did in fact engage with the adverse credibility findings made by the delegate and the information in the delegate’s decision, prior to the Tribunal hearing.  Mr Turner identified that most of the information in para.12 was identified in the delegate’s reasons but contended that the information relating to the warning in respect of the applicant’s ongoing contention as to the Burmese passport being a fake and belated acknowledgement that it was his passport when it became obvious to him it would be used against him was, in substance, part of the critical reasoning in relation to the ongoing deception found in para.17 leading to the finding that the applicant was a citizen of Burma.

10. The substance of what is in para.12 was identified in terms of information in the reasons of the delegate and the reference to the “allegedly false passport” referred to by the delegate is clearly referrable to the same ongoing deception identified in the Tribunal’s reasons. Accordingly, even if the information identified in para.12 might otherwise have enlivened an obligation under s.424A, it is information that was excluded by s.424A(3)(b) and, accordingly, there was no jurisdictional error by reason of the information referred to in para.12.

11. Mr Turner also contended that the information relating to the applicant’s father performing the Hajj referred to by the Tribunal in para.19 was information enlivening an obligation under s.424A. I reject that submission. I do not accept that the father performing the Hajj is information of a kind that would have enlivened any obligation under s.424A. I note that the reference to performing the Hajj was a matter raised by the Tribunal in the context of a statutory declaration provided by the applicant to the Tribunal during the process that led to the decision that is under review, identifying his father’s name.

12. Insofar as it were otherwise thought that the reference to the performing of the Hajj was information that might have enlivened an obligation under s.424A, I find that that was information that the applicant gave during the process that led to the decision under s.424A(3)(b)(a) by the provision of the statutory declaration with his father’s name. It was his father’s name that was of importance in that regard and that was information provided by the applicant in his statutory declaration to the Tribunal prior to the hearing.

13. Over the opposition of the first respondent, the Court extended time under s.477. In the circumstances of the present case, for the reasons identified above, I am satisfied that the application fails to disclose any jurisdictional error. The application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 February 2016