CEV15 v Minister for Immigration and Anor
[2017] FCCA 739
•13 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEV15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 739 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether Tribunal applied the correct test – whether the Tribunal was biased – whether the Tribunal breached procedural fairness obligations – whether the Tribunal took into account irrelevant considerations – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 476 |
| Cases cited: Nguyen v Minister for Immigration and Citizenship [2000] FCA 1265 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 |
| Applicant: | CEV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2896 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 13 February 2017 |
| Date of Last Submission: | 13 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr J Palte of DLA Piper Australia |
ORDERS
The application made on 23 October 2015 and amended on 24 February 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2896 of 2015
| CEV15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), on 23 October 2015, and amended on 24 February 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 23 September 2015, which affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the affidavit of Ms Marina Gainulina, Legal Assistant, affirmed on 9 February 2017, with relevant annexures. Despite opportunity to do so by Court orders made on 3 December 2015, the applicant has filed no evidence.
Background
The following background can be seen on the evidence that is before the Court. The applicant is a citizen of Bangladesh. He arrived in Australia on 6 December 2012, as an “irregular maritime arrival”. With the assistance of a migration agent, he applied for a protection visa on 19 March 2013 (CB 18 to CB 75).
The applicant’s claims to fear harm were said to arise from his relationship with a girl from a wealthy family in Bangladesh. The girl’s family, in particular her father, and later her husband, did not approve of this relationship. He claimed to have been the subject of a number of incidents occasioned by the young woman’s relatives. In essence, he claimed to fear harm on the basis of what was described as an “honour killing”, in the material that he, or his agent, provided to the Minister’s Department.
The delegate refused the application on 25 July 2014. The delegate found that there were discrepancies between the applicant’s written claims and what he told the delegate at an interview. While the delegate found that the applicant may have been “acquaint[ed]” with a young woman, he was not in any romantic relationship with her. The delegate rejected the entire factual account of the applicant’s claimed fear of harm (CB 89 to CB 103).
The applicant applied to the Tribunal for review on 29 July 2014 (CB 104 to CB 105). He was again assisted by a registered migration agent. The applicant appeared at a hearing before the Tribunal on 5 June 2015 (CB 147 to CB 148).
The Tribunal affirmed the delegate’s decision. The Tribunal found that the applicant’s evidence concerning the alleged “love affair” with the young woman, and the harm that this brought him and his family, from her family, was “vague and largely devoid of circumstantial detail” ([17] at CB 161).
Further, the Tribunal found significant inconsistencies between what the applicant set out in a Statutory Declaration, and the oral evidence that he gave to the Tribunal at the hearing ([18] at CB 161). The Tribunal gave reasons for these findings. The Tribunal concluded that the applicant’s claims were not credible, and rejected the entire factual basis of his claims. It was on this basis that the Tribunal affirmed the delegate’s decision in that the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Act for the grant of the visa.
While the applicant has not filed any evidence or written submissions, he did file an amended application on 24 February 2016. As best as can be understood, the amended application asserts three legal errors on the part of the Tribunal. Under each of those general assertions there are what are described as “particulars”, although it is fair to say that they are more in the nature of a narrative of complaints.
Before the Court
The applicant appeared in person before the Court today. He was assisted by an interpreter in the Bangla language. The Minister was represented by a solicitor. The applicant initially sought an adjournment of the hearing today. The adjournment was sought on the basis that he said that he had not received, and had not seen, the Minister’s written submissions until they were given to him by the Minister’s representative this morning, and “interpreted” for him. The applicant stated that if he had received them earlier he could have “asked people to help him” including a Mr Barodi, whom the applicant said had drafted his amended application for him.
The Minister opposed the application for an adjournment and sought to rely on the affidavit of Ms Gainulina affirmed 9 February 2017 which annexed a “courier confirmation” (at annexure “B”), that showed that the Minister’s written submissions had been successfully delivered to the applicant’s nominated address for service in accordance with the Court’s orders.
In response, the applicant stated that “[s]ome people where I live, they may have received it [the written submissions] and signed the courier receipt … but I haven’t seen anything whatsoever.”
I refused the applicant’s application for an adjournment. I was satisfied on the evidence before the Court that the Minister, by courier, and in accordance with orders made by a Registrar of the Court on 31 March 2016, served a copy of his written submissions on the applicant at his nominated address for service. That nominated address for service was the one that appeared on the applicant’s documents filed with the Court. I was also satisfied on the evidence before the Court, that the Minister’s written submissions were delivered to that nominated address for service (see the affidavit of Ms Gainulina affirmed 9 February 2017 and relevant annexures).
The applicant submitted that notwithstanding that “some people” at the address where he lived, and which he had provided as his nominated address for service, may have “signed” for the receipt of the Minister’s written submissions, he did not actually receive the written submissions.
The applicant was present in Court with the assistance of an interpreter when a Registrar of the Court made orders on 31 March 2016, requiring, amongst other things, that the Minister serve his written submissions on the applicant seven days before the hearing.
There was no claim by the applicant before the Court today that he was unaware of the obligation imposed on the Minister by the Registrar’s order. It is reasonable to assume that the applicant was on notice that the Minister would send the written submissions to him about seven days before the hearing. The applicant must accept some responsibility for ensuring that he was able to access correspondence delivered to the nominated address for service he provided to the Court.
The applicant explained before the Court that the amended application had been drafted by someone he described as “Mr Barodi”, and whom he understood to be, a “retired lawyer”. The applicant said that he met this person at Campsie railway station, and then went to his home, where he spoke to him. The “retired lawyer” drafted the grounds of the amended application.
The applicant also submitted that even though he had spoken to
“Mr Barodi”, he did not have a clear idea of what was in the amended application because of “language difficulties”. The applicant also said that the “retired lawyer”, told him that the amended application would be sufficient to get him an “appeal” before this Court, and that he should make inquiries to see if he could get “some lawyer” to argue his case pro bono.
I note for the sake of completeness that there is no right of legal representation before the Court in matters of this type (Nguyen v Minister for Immigration and Citizenship [2000] FCA 1265, Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17], Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 (“SZNVW”) at [30]). As I said to the applicant during the course of the hearing today, he has had over a year to obtain any “free” legal representation. If he had not done so up until now, then there was nothing to indicate that he would be able to obtain any such assistance in the near future.
The Grounds of the Amended Application
Ground one of the amended application asserts that the Tribunal fell into jurisdictional error because it failed to use the “real test of persecution”. The particulars to the ground, which I accept from the applicant were prepared by someone whom he understood to be a “retired lawyer”, in essence do no more than repeat the applicant’s claims to fear harm as those claims were put before the Tribunal.
Even when read beneficially for the applicant, it appears that the implication arising from the particulars to ground one is that the Tribunal fell into error because it did not accept the applicant’s claims. As mentioned earlier, the Tribunal, comprehensively disbelieved the applicant’s factual account of what he said had relevantly occurred in his home country. The Tribunal, on any fair reading of its decision record, gave cogent reasons for this disbelief.
These reasons were probative of the material that had been put before it. In this sense, the ground seeks impermissible merits review, and cannot, and does not, succeed in revealing jurisdictional error on the part of the Tribunal (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
The Minister’s position is that the applicant’s ground also appears to make statements that may seek to allege bias on the part of the Tribunal. Indeed, before the Court today, the applicant confirmed that it was his view that the Tribunal had brought a closed mind to the question of his claims to fear harm.
An allegation of bias against an administrative decision‑maker is a very serious charge to make. That is because, amongst other reasons, an allegation of bias, unlike many other assertions of legal error, is an attack upon the very integrity of the decision‑maker. In this case, the Tribunal member. It is for this reason that the law requires that any allegation of bias must be distinctly made and clearly proven (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 7; (2001) 205 CLR 507 (“Jia Legeng”), SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 and SZRUI v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCAFC 80 (“SZRUI”)).
The applicant’s particulars, in relation to what appears to be the allegation of bias, have not been distinctly made, and in the absence of evidence from the applicant, have not been clearly proven. As has been often said, it is extremely rare that bias can be made out having regard only to the decision record of the Tribunal (SCAA v Minister for
Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303).In the current case, an attempt to challenge the Tribunal’s findings by suggesting the Tribunal had a closed mind, or appeared to have a closed mind, does not meet the standard required by all the relevant authorities (Jia Legeng, Re Refugee Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, SZRUI and MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100).
The particulars to ground one, state that the “applicant claims that he has genuine reason to believe that he will be killed” when he goes back to his country. In the circumstances, the Tribunal’s explained disbelief of the truth of the applicant’s claims, is not a basis upon which a claim for an assertion of bias can be made.
The particulars to ground one also assert, “[t]he applicant claims that he was denied procedural fairness when he was asked irrelevant questions.” There is nothing in the ground to explain, or to identify, what these irrelevant questions may have been.
There may be some circumstances where the taking into account of irrelevant considerations may lead to some legal error being revealed (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24). But, again, in the absence of evidence, and any argument of substance, all that remains is a bare and general assertion that fails because of the lack of particularity.
The applicant also complains that the Tribunal denied him procedural fairness. The applicant said that the Tribunal asked him “for some time” about the “Bondi lawyers”.
This remained unexplained. Despite opportunity to bring evidence to the Court to support any of his complaints about the Tribunal’s decision, and despite the assistance of someone whom he described as a “retired lawyer”, there is no evidence or explanation from the applicant regarding this reference to “Bondi lawyers”. It may be that this was a reference to his former representatives before the Minister’s department, and for a period when the applicant was before the Tribunal, who had offices in “Bondi Junction” (see CB 26, CB 105 and CB 127 to CB 135).
In any event, it is not necessarily the asking of irrelevant questions at a hearing that may lead to jurisdictional error. It is the taking into account of irrelevant considerations, in the making of the decision which is far more likely to lead to any such revelation.
It is clear that the Tribunal, in making its decision in rejecting the credibility of the applicant’s claims, did not rely on any issue involving “Bondi lawyers”. In all, ground one is not made out.
Ground two asserts that the Tribunal fell into jurisdictional error because it “discarded” all the applicant’s oral and written submissions. This appears to be an attempt to challenge the Tribunal’s conclusion, and the findings that informed that conclusion, as to the lack of credibility in the applicant’s claims.
The Tribunal’s findings as to credibility were findings of fact that were reasonably open to it on what was before it, and for this reason were findings made within jurisdiction. There is no jurisdictional error revealed in relation to the assertion made in ground two.
The particulars to ground two also state that, “[t]he Tribunal raised many doubts over the credibility of reasons for claim given by the applicant.” If that is meant as some criticism of what the Tribunal did at the hearing, then it does not assist the applicant. That is because the Tribunal is obliged, by s.425 of the Act, to invite an applicant to a hearing. That hearing must be a meaningful opportunity for the applicant to know the case against him, address the issues dispositive of the review and to give his evidence and present his arguments (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”), SZNVW, Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 (“Appellant P119/2002”), and SCAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1481).
Far from being a matter of criticism, the Tribunal raising its concerns about the credibility of the applicant’s evidence at the hearing with him, was specifically in discharge of its obligation that it put the applicant on notice of the case against him, in the sense of discussing the issues dispositive of the review (SZBEL and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494).
The particulars also appear to seek to explain what the Tribunal found were the “significant inconsistencies” in the applicant’s evidence (see [18] at CB 161). What appears to be proffered by the particulars is that “[i]n presenting his evidence it might be he [the applicant] could not understand the questions.”
That is not, given the doubt expressed by the use of the words “might be”, an appropriate assertion of legal error. What the particulars appear to also seek to do, is to assert that the interpreter did not accurately interpret the issues raised by the Tribunal. As mentioned earlier, the Tribunal is required, by the operation of s.425 of the Act, to provide the applicant with a meaningful opportunity to give his evidence at a hearing. This includes that the applicant be given a fair opportunity to participate in the hearing. The Tribunal is required to put to the applicant the issues dispositive of the review, and give him an opportunity to respond.
This is a case where the Tribunal did provide an interpreter to assist the applicant, and to assist the Tribunal. I note in this regard the Minister’s submissions, that in this context, generally the interpretation provided does not need to be perfect. It does, however, need to be of sufficient character so as to enable the relevant ideas or concepts to be communicated ([15] of the Minister’s written submissions and see also WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511 at [66]).
Jurisdictional error may be made out where the interpretation was so inadequate as to prevent the applicant from giving his evidence, or any errors by the interpreter were relevant or material to some adverse finding made by the Tribunal (Appellant P119/2002 at [17]).
However, the difficulty for the applicant in the current case is that he has not provided any evidence to support the claim made in the particulars. In the absence of any evidence, the Court cannot otherwise assume what may or may not have occurred at the Tribunal hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241). On the only evidence that is available to the Court, that is, the Tribunal’s account of what occurred at the hearing, there is no indication that there was any deficiency in the level of interpretation provided by the interpreter.
As I said earlier in relation to ground one, and this appears to be repeated in ground two in a similar vein, the applicant asserts that the Tribunal asked irrelevant and confusing questions. Again, as with ground one, no particulars are provided. What the applicant said before the Court today also does not assist him.
For the remainder of the particulars to ground two, again they are attempts to assert before the Court, the truthfulness of the matters that the applicant asserted before the Tribunal. For reasons that I have already explained, that does not assist in revealing jurisdictional error. In all, ground two is not made out.
Ground three asserts that the Tribunal failed to apply the “correct test” when it considered the applicant’s claims against the complementary protection criterion. The applicant’s ground and particulars have not explained how the Tribunal failed to do this.
I should also note that notwithstanding that this ground was said to have been drafted by a “retired lawyer”, there is an unexplained inconsistency in the assertion in the ground of a breach, or a failure, by the Tribunal in relation to s.36(2)(aa) of the Act, and that part of the particulars which refer to the Refugees Convention, and membership of a particular social group under the Refugees Convention. It is trite to say that the Refugees Convention has nothing to do with s.36(2)(aa) of the Act.
In any event, the applicant’s ground ignores that the Tribunal comprehensively found that the applicant’s factual account of the feared harm was not to be believed. Even if the particulars were to be understood as being some attempt to assert that he would face harm under the complementary protection provisions, for reasons of “honour killings”, the applicant’s ground cannot succeed given the factual findings made by the Tribunal which were reasonably open to it. In relation to its consideration of the complementary protection criterion the Tribunal was entitled to rely on factual findings expressed earlier in its decision record (SZSGA v Minister for Immigration, Multicultural and Indigenous Affairs [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26).
The applicant’s ground appears to be no more than the applicant’s disagreement with the Tribunal’s finding that he did not satisfy the criterion at s.36(2)(aa) of the Act for the grant of the protection visa. None of the applicant’s grounds, nor the particulars to the grounds, reveal jurisdictional error on the part of the Tribunal. For that reason, the application to the Court must be dismissed. I will make the appropriate order.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 19 April 2017
0
27
2