CLZ19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FCA 105
•20 February 2024
FEDERAL COURT OF AUSTRALIA
CLZ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 105
Appeal from: CLZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 482 File number(s): NSD 281 of 2021 Judgment of: BROMWICH J Date of judgment: 20 February 2024 Catchwords: MIGRATION – appeal from a decision of the former Federal Circuit Court of Australia dismissing an application for judicial review of the Administrative Appeals Tribunal – Tribunal decision affirmed a decision of a delegate of the Minister to refuse to grant the appellant a protection visa – where no error by the primary judge identified – appeal dismissed with costs Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa) Cases cited: CLZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 482 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 16 Date of hearing: 20 February 2024 Counsel for the Appellant: Appellant was self-represented Counsel for the First Respondent: Ms I Leonard Solicitor for the First Respondent: Australian Government Solicitor ORDERS
NSD 28 of 2021 BETWEEN: CLZ19
Appellant
AND: MINISTER FOR IMMIGRATION, CITZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
20 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent Minister to refuse to grant the appellant a protection visa.
The sole issue before the Tribunal relevant to this appeal was whether the appellant was a refugee, and if not, whether he was entitled to a protection visa on the basis of the complementary protection criteria: see s 36(2)(a) and (aa) of the Migration Act 1958 (Cth).
The appellant is a national of Bangladesh. He travelled to Australia on a Bangladeshi passport and entered Australia on a visitor visa in early 2015. Two weeks after entering Australia he applied for a protection visa. In his written claim in support of his application he said that he left Bangladesh as he feared for his life due to being a supporter and member of the Bangladesh Nationalist Party (BNP) in his local area. The appellant claimed that after the 2008 election when the Awami League formed government, he became the target of local Awami leaders due to his political involvement in the election campaign by organising meetings and collecting party funds. He said that he was forced to pay protection money for the safety of his life and business. He said that in the second half of 2014, he was threatened with abduction and murder if he did not pay money to the Awami League Party‘s then-leader. He said that due to those threats he left Bangladesh for Australia. He claimed to fear being killed, and said he will also be prevented from exercising freedom of expression and movement, if he is compelled to return to Bangladesh. He said he had been to local law enforcement authorities in Bangladesh for help regarding the threats but his claims were not accepted due to the power of the Awami League Party.
The appellant failed to attend an interview with a delegate of the Minister, or provide a reason for that non-attendance. In August 2015, a delegate of the Minister refused the protection visa. The appellant subsequently applied to the Tribunal for review of that refusal and gave evidence at a hearing before the Tribunal.
In May 2019, the Tribunal affirmed the delegate’s decision to refuse to grant the appellant a protection visa, finding that his evidence was inconsistent and he was not a credible witness, and that he had fabricated his claims for protection.
A judicial review hearing took place on 15 March 2021. The appellant appeared in person and a solicitor appeared for the Minister. The primary judge dismissed the application, giving ex tempore reasons that were revised before publication.
The primary judge summarised what had taken place before the Tribunal in some detail, with a combination of descriptive narrative and quotes from the Tribunal’s reasons over some five and a half pages. I incorporate that summary from CLZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 482 (the Primary Judgement or PJ) at paragraphs [1] – [25] by reference, without reproducing it, because only a portion is directly challenged in this appeal.
The grounds of appeal and submissions
The appellant advances two grounds of appeal, as follows (verbatim):
1.The Federal Circuit Court Hon. JUDGE DRIVER did not follow the appropriate procedure of the applicable law when dismiss the appellant's Judicial Review Application filed on 25/06/2019 with the Federal Circuit Court.
2.The law of Natural Justice did not follow when the appellant's Judicial Review Application was dismiss by the FCC Court.
In written submissions, the Minister characterises the grounds of appeal as unparticularised assertions of error that are without merit. The appellant did not provide any written submissions in support of his grounds of appeal.
At the appeal hearing, the appellant spoke about his claims for a protection visa and what would happen to him if he were to return to Bangladesh. He declined to make any submissions about either of his grounds of appeal.
With respect to ground 1, the Minister submits that the appellant does not identify any aspect of the “procedure” or “applicable law” that had been misapplied by the primary judge. The Minister’s submission is plainly correct. It follows that ground 1 must fail.
With respect to ground 2, the Minister submits that the appellant does not identify any respect in which the primary judge or Tribunal (it is not clear which the ground refers to) denied the appellant procedural fairness. If ground 2 is directed to the primary judge, the Minister submits that the appellant had sufficient opportunity to put his case to the Court and was aware of the issues that were dispositive, given that they were addressed at the hearing and in the Minister’s submissions. That is plainly correct and must be accepted.
Alternatively, if ground 2 is directed to the Tribunal (and therefore amounts to an assertion of error on the part of the primary judge in failing to find a denial of procedural fairness) the Minister submits that the findings of his Honour at PJ [44] are correct (cross-references removed for brevity):
The Tribunal complied with its procedural fairness obligations under Part 7 of the Migration Act. In particular:
(a)the Tribunal invited the applicant to a hearing in accordance with s 425 and pursuant to a valid invitation;
(b)on 3 May 2018, the applicant appeared before the Tribunal to give evidence and present arguments. He was represented by his migration agent and assisted by an interpreter. The Tribunal adjourned the hearing to allow the applicant to obtain medical evidence regarding his claimed memory problems;
(c) on 13 June 2018, the applicant submitted further documents including medical evidence, which the Tribunal considered;
(d)on 18 June 2018, the applicant appeared again before the Tribunal with his migration agent and was assisted by an interpreter;
(e)the Tribunal explained to the applicant that if he was unable to remember details or answer the Tribunal’s questions, the Tribunal could consider this to impact adversely on his credibility;
(f)the Tribunal noted various inconsistencies in the applicant’s evidence and raised these with him. ‘Information’ for the purposes of s 424A of the Migration Act does not include the “existence of doubts, inconsistencies or the absence of evidence”.
I accept that the primary judge’s reasons properly addressed the complaint made about the Tribunal’s asserted denial of procedural fairness and that no error on the part of his Honour has been identified, much less established.
It follows that ground 2 must also fail.
Conclusion
As both grounds of appeal have failed, the appeal must be dismissed with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate:
Dated: 20 February 2024
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