CCL16 v Minister for Immigration and Border Protection

[2017] FCA 960

FEDERAL COURT OF AUSTRALIA

CCL16 v Minister for Immigration and Border Protection [2017] FCA 960

Appeal from:	Application for extension of time and leave to appeal: CCL16 & Ors v Minister for Immigration & Anor [2017] FCCA 694
File number:	NSD 593 of 2017
Judge:	NICHOLAS J
Date of judgment:	7 August 2017
Legislation:	Migration Act 1958 (Cth) s 424A, 424AA and 425
Date of hearing:	7 August 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	11
Counsel for the Applicants:	The applicants appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms N Johnson of Mills Oakley
Counsel for the Second Respondent:	The second respondent submitted save as to costs

ORDERS

NSD 593 of 2017

BETWEEN:

CCL16

First Applicant

CCM16

Second Applicant

CCN16

Third Applicant

CCO16
Fourth Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	7 AUGUST 2017

THE COURT ORDERS THAT:

1.The application for an extension of time in which to apply for leave to appeal be dismissed.

2.The applicants pay the first respondent’s costs of such application as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

NICHOLAS J:

1. Before me is an application for an extension of time in which to appeal a judgment of the Federal Circuit Court of Australia made on 31 March 2017. 

2. In the proceeding heard by the learned primary judge, the first applicant (who I shall refer to as the applicant) and the other applicants, his wife and two children, sought judicial review of a decision of the Tribunal made on 28 June 2016 affirming the decision of a delegate of the first respondent (“the Minister”) refusing to grant them protection visas.

3. The applicant is a citizen of Fiji who previously worked in Fiji for the ANZ Bank.  He claims to fear harm in Fiji from the military.  He claims that he was subjected to harsh treatment by military personnel, who took him into custody in June 2013, seeking information from him relating to various people’s financial and banking records. 

4. He also claimed that in March 2014 four soldiers came to the branch of the bank in which he worked, seeking financial information in relation to about 50 people.  He claimed that he was asked by the branch manager to leave a few days after this incident.  It was then that he said he left Fiji and came to Australia.  Since being in Australia, the applicant claims that he was on a watch-list maintained by the Fijian military and that the military has visited his mother-in-law’s house in Fiji, asking when he was expected to return.  There are other claims made by the applicant in relation to his support for the SDL Party in Fiji, assistance provided by him in the marketing/promotion of the party and his participation in a protest in Sydney on 31 August 2014.

5. The following grounds of review were relied upon by the applicant before the primary judge:

   1.The Tribunal denied the applicant a meaningful opportunity to participate in the hearing as required by s.425 of the Migration Act 1958 (Cth).

   2.The Tribunal fell into jurisdictional error in not complying with the legislative requirements under s.424A(l)(a) and s.424AA of the Migration Act to give the applicant “clear particulars of any information that the Tribunal considered would be the reason, or part of the reason for affirming the decision that was under review. The Tribunal gave significant weight to its own assumptions and conclusions without putting the applicant on notice that its reasons would be the reason or part of the reason, for affirming the decision under review.

   3.The Tribunal made an erroneous adverse finding against the applicant's evidence by relying on a miscomprehension of the evidence and/or failing to consider the evidence.

   Various particulars (which I have not set out) were given in relation to the each of these three grounds.  They are reproduced in their entirety in [15] of the primary judge’s reasons for decision.

6. Each of the three grounds relied upon was considered by the primary judge and rejected.  In particular, his Honour found that:

   (a)The Tribunal did not breach s 425 of the Migration Act 1958 (Cth) (“the Act”). In particular, the Tribunal invited the applicants to attend a hearing at which both the first and second applicants gave evidence.

   (b)The Tribunal did not exhibit either apprehended bias or actual bias.  In particular, his Honour was not persuaded that any such conclusion followed from the Tribunal’s description of some of the applicant’s evidence in [20] of its reasons as “nonsensical”.

   (c)The Tribunal did not fail to comply with s 424A or s 424AA of the Act. In particular, his Honour held that the matters upon which this complaint was based were in the nature of inconsistencies in the first and second applicant’s evidence and was not information within the meaning of either of those provisions.

7. It is apparent, as noted by the primary judge, that the Tribunal’s rejection of the applicant’s claims was based upon its adverse assessment of his credibility.  With regard to the adverse credibility findings that were made by the Tribunal, the primary judge said, at [43] to [44] of his Honour’s reasons:

   [43]I accept that credibility findings, like other factual findings by the Tribunal, are amenable to judicial review. Where an adverse credibility finding is based upon a miscomprehension of the facts or a failure to consider material evidence, the Tribunal may fall into jurisdictional error. In the present case, however, the applicants were unable to point to any particular evidence which was ignored or misunderstood.

   [44]The Tribunal’s reasons revealed to me that the Tribunal engaged in detail with the applicant's claims and evidence in reaching its adverse credibility conclusions. I conclude that the Tribunal did not overlook or misunderstand anything in reaching its conclusions.

8. I respectfully agree with these observations of the primary judge.  I also agree with his Honour’s conclusion that the applicant failed to identify any jurisdictional error by the Tribunal.

9. Neither the draft notice of appeal nor the applicant’s affidavit filed in support of the present application identify any arguable ground of appeal.  Nor was the applicant (who was not legally represented before the primary judge or before me) able to identify any arguable basis for challenging the primary judge’s conclusion that the Tribunal’s decision was not shown to be affected by jurisdictional error.  

10. I am satisfied that the primary judge correctly rejected each of the three grounds of review relied upon by the applicant for the reasons that were given.  I am also satisfied that the applicants’ proposed appeal has no prospect of success.  The application for an extension of time will be dismissed on that basis.  The first and second applicants must pay the Minister’s costs.

11. Orders accordingly.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated:        17 August 2017