CDJ15 v Minister for Immigration and Border Protection
[2018] FCA 298
•13 March 2018
FEDERAL COURT OF AUSTRALIA
CDJ15 v Minister for Immigration and Border Protection [2018] FCA 298
Appeal from: CDJ15 v Minister for Immigration and Border Protection and Anor [2017] FCCA 2546 File number: NSD 1547 of 2017 Judge: COLVIN J Date of judgment: 13 March 2018 Catchwords: MIGRATION – whether Tribunal had a duty to investigate – no duty to investigate matters concerning appellant’s political activities – no jurisdictional error Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 424, 425(1), 476 Cases cited: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113
Date of hearing: 5 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 27 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms S He Solicitor for the First Respondent: Mills Oakley Lawyers Counsel for the Second Appellant: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 1547 of 2017 BETWEEN: CDJ15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLVIN J
DATE OF ORDER:
13 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant do pay the first respondent’s costs of the appeal to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
The appellant is a citizen of Bangladesh. He arrived in Australia by boat, without entry papers. He then applied for a protection visa on 6 June 2013.
At that time, he was represented by lawyers who were also migration agents. His initial claims were set out in a statutory declaration. He said that he feared harm from the members and supporters of the Bangladesh Awami League political party because he and his family had been longstanding supporters of the opposing Bangladesh National Party (BNP). He said that between 2012 and 2013, supporters of the Awami League threatened him and sought to extort money from him.
The application was refused by a delegate of the Minister on 26 August 2014. The delegate did not accept the appellants’ factual accounts which formed the basis of the claims of protection and was not satisfied that the claims were credible.
The appellant sought review of the decision in the Refugee Review Tribunal. He provided some new documents in support of his claims. The Tribunal affirmed the refusal of the application and did not accept much of the appellant’s evidence.
The appellant then sought judicial review in the Federal Circuit Court under s 476 of the Migration Act 1958 (Cth). He raised three grounds. First, a claim that the Tribunal failed to discharge its statutory task by considering each integer of the claim or all of the evidence. Second, a ground that raised various complaints about the manner in which the Tribunal had made its factual findings, including an allegation that it approached the matter with a “closed mind” and intentionally asked questions in such a manner that the appellant was confused and the hearing was not conducted in a judicial manner. Also, the interpreter did not “appropriately” convey his words in English to the Tribunal and he was nervous at the hearing and could not understand what he was being asked. Third, the Tribunal failed to correctly apply the test in relation to the complementary protection criterion for a grant of a protection visa under s 36(2)(aa) of the Migration Act. As a result there was jurisdictional error.
Each claim was considered in detail and dismissed.
The appellant now appeals to this Court. Written grounds and submissions have been prepared for him in English. They have been translated to him and he confirmed that they state the matters he wishes to raise in support of his appeal.
The complaints in the written grounds and submissions differ from those that were raised before the Federal Circuit Court. There is no explanation as to why they were not raised in that Court. No objection was taken and counsel for the Minister addressed in oral submissions the matters raised in the written materials. In those circumstances, I propose to deal with them.
The appellant was also given an opportunity to make oral submissions. The oral submissions he made concerned the facts in support of his claim to protection. Amongst other things, he said that he and the whole of his family were members of the BNP and that his father was at the “highest post” and that elder members of his family were engaged full-time in the BNP. He said that he was at the “foot post” looking after the family livelihood. He said that he was attacked and he still bears the marks.
This court does not decide the truth or accuracy of the material relied upon by an applicant for a protection visa. The statutory task of considering the material advanced to support the claim is entrusted to the Minister and then to the Tribunal if there is an application to the Tribunal. Upon an application to review the decision of the Tribunal, the Federal Circuit Court can only grant relief in circumstances where the High Court could do so in the exercise of its original jurisdiction. In the present context, that requires that the appellant demonstrate jurisdictional error.
For the following reasons there is no merit in the complaints raised and the appeal should be dismissed.
At the outset, two matters should be noted. First, the appellant did not provide any affidavit material or refer to any matters by way of oral submissions to support claims that there had not been a proper investigation or that particular evidence had not been considered. In those circumstances, no detail was advanced to support much of the material in the written grounds provided to this Court.
Second, in the outline of written argument and grounds, it was stated a number of times that the appellant was an activist of the BNP and that he organised and attended meetings and he held an important position as a politician. He said “I was holding a very important position of my area politics as a politician”. He said that he was “appointed by my party senior leader”. However, he also said in those submissions that he never claimed that he was “a big leader of the party and having very high political profile”. I have set out above the matters that were stated orally by the appellant in which he said that he held a “foot post”. In those circumstances, there is evident inconsistency as to the factual position in the submissions made by the appellant in this appeal.
I note that the Tribunal, in its reasons, stated that the appellant told the Tribunal he was not a member of the BNP and just attended meetings and also that his uncle and relatives were not members but were normal supporters. The Tribunal found that the appellant’s oral evidence before the Tribunal was vague and confused and limited in relation to his knowledge and support and/or membership of the BNP. The way in which matters were presented on appeal supports the finding of the Tribunal in relation to membership.
I now turn to the specific complaints raised by the appellant.
First, it is said that the Tribunal raised doubt about the appellant’s political activities and membership without any investigation.
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues: s 425(1) of the Migration Act. It may obtain such information as it considers relevant: s 424. Its function is inquisitorial. However, the Tribunal does not have a general duty to undertake its own inquiries in addition to other information provided to it by the applicant: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [1]. The Tribunal may be required to make an obvious inquiry with respect to a fact the existence of which can be easily ascertained: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [49].Otherwise, it was for the appellant to present to the Tribunal the material upon which he relied: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187]. The Tribunal is only required to consider claims which are apparent on the face of the material before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58].
The decision of the Tribunal turned upon its adverse view about the credibility of the appellant’s account. Issues about the credibility of the claims of the appellant about his political activities had been raised by the Minister. In those circumstances, the decision under review disclosed those matters to the appellant and it was for the appellant to bring forward any evidence and arguments before the Tribunal: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35]-[40].
There has been no jurisdictional error demonstrated as to the manner in which the Tribunal investigated the material in relation to the appellant’s claim to a protection visa.
Second, there was a complaint that the appellant had provided oral and written evidence to the Minister’s Department and the Tribunal that he had become a very active member of the BNP before he left Bangladesh and was holding a very important position as a politician. No material is before the Court to support this factual claim. Indeed, the material that is before the Court as to what was said by the appellant to the Minister and the Tribunal is inconsistent with this claim.
Third, it is claimed that the Tribunal made a jurisdictional error when it asked irrelevant questions to undermine his role within the BNP. The statutory task entrusted to the Tribunal includes testing any evidence provided in support of an application. There is no evidence to indicate that the Tribunal did anything more than discharge this aspect of its statutory responsibility.
Fourth, the appellant said he was denied procedural fairness and natural justice when his submission that he was a member of the BNP “was outright discarded or rejected”. This characterisation does not reflect the manner in which the Tribunal dealt with the claim by the appellant.
Fifth, the appellant said that a person with a low profile or higher profile could be attacked. This was not a matter considered by the Tribunal and it did not arise given its conclusion that the appellant’s evidence about his association with the BNP was not to be accepted.
Sixth, the appellant claimed that the decision was “biased and limited”. It was alleged that the Tribunal did not consider the whole of the information available “on the media”. As I have said, it was a matter for the appellant to put before the Tribunal the material upon which he relied to support his claims. There was no detail provided by the appellant of any material that was before the Tribunal that it should have considered but did not.
Seventh, the appellant said that the Tribunal failed to apply the correct test in relation to the complementary protection provision in s 36(2)(aa) of the Migration Act. However, the Tribunal did consider separately the application of that provision and correctly expressed the issues raised by that provision.
The balance of the appellant’s submissions was a restatement of the factual claims advanced to support his application. Those factual claims were rejected by the Tribunal. It was not a matter for the Federal Circuit Court to reconsider those factual matters.
It follows that none of the matters raised by the appellant give rise to jurisdictional error and the Federal Circuit Court was correct in dismissing the appellant’s appeal. The appeal to this Court should be dismissed and the Minister’s costs should be paid by the appellant.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin. Associate:
Dated: 13 March 2018
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