CMV15 v Minister for Immigration

[2016] FCCA 691

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMV15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 691

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – procedural fairness – whether the adverse findings of the delegate were a live issue before the Tribunal – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425, 476

SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002

Applicant: CMV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3225 of 2015

Judgment of: Judge Street

Hearing date: 31 March 2016

Date of Last Submission: 31 March 2016

Delivered at: Sydney

Delivered on: 31 March 2016

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Micheala Byers, Solicitor

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The amended application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3225 of 2015

CMV15

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 of a decision of the Tribunal made on 23 October 2015 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country.  The Tribunal made adverse credit findings in relation to the applicant’s claims and found that the applicant did not hold a well-founded fear of persecution based on any Convention ground and found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Afghanistan, there is any real risk he will suffer significant harm.  It was for those reasons the Tribunal affirmed the decision of the delegate.

3. The delegate also made adverse credibility findings in relation to the applicant’s evidence.  The Tribunal accepted that it was plausible the applicant’s father was killed in 2006 but said that there was no evidence to indicate that he was killed by the applicant’s extended family members or that it was on account of the family feud.  Both incidents were referred to in the applicant’s reasons for leaving Afghanistan. 

4. The grounds in the amended application are as follows:

   1. The Tribunal breached section 425 of the Migration Act 1958 (Cth).

   Particulars

   a. The Tribunal failed to put the Applicant on notice that his credibility was in issue in respect of his father’s death and the decision to flee Afghanistan as a result of a blood feud, thereby denying the Applicant the opportunity of leading evidence in respect of these issues.  

5. Mr Bodisco, counsel on behalf of the applicant, took the Court to the reference to the two incidents in the applicant’s statement of reasons why he left Afghanistan and, also, to the findings of the delegate in which the delegate accepted that there was a family feud that led the family to fee from Afghanistan and accepted that the applicant’s father had been killed in 2006.  Mr Bodisco took the Court to the adverse findings by the Tribunal and, in particular, the adverse findings rejecting the proposition that the applicant’s father was shot in 2006, as claimed by the applicant, and, also, disbelieved the claims about fleeing because of the family feud.

6. Mr Bodisco took the Court to the decision in SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002 at [36] and emphasised the need for the Tribunal to make clear that a credibility finding accepted by the delegate was a live issue before the Tribunal. Mr Bodisco’s submissions expanded upon the reasons why it was contended that the incidents were not live issues. The Court was taken to the transcript and the opening introduction by the member of the Tribunal where the member identified that the questions asked that there would be questions to assess the applicant’s credibility and where the delegate also referred to the proposition that even if the Department believed some of an applicant’s evidence the Tribunal must make its own mind up if the applicant is telling the truth.

7. The Tribunal explored in the transcript with the applicant the departure from Afghanistan.  I do not accept that the way in which that issue was explored did not make patent that the applicant’s credit on the blood feud and death of his father was a live issue in relation to that departure from Afghanistan.  Relevantly, at one point the Tribunal said (p.7):

   You see one way of looking at it is to ask why the girl's family would feel so strongly about this matter in 2006 that they would actually shot your father when it was something that happened twenty years earlier.

8. It is apparent from the further questions asked by the member that the applicant’s credit in relation to the alleged incidents was a live issue.  Further, the day after the hearing, the applicant’s representative, on 24 July 2015, sent in submissions (CB 191):

   …in relation to any questions that might arise about our client’s credibility.

9. The first topic that was addressed by the applicant’s representative was the family blood feud.  In those circumstances, it is apparent that it was understood and appreciated by the applicant’s representatives that the applicant’s credibility was a live issue before the Tribunal.  Those submissions dated 24 July 2015 proceeded to address the assessment of credibility and identified authorities and submissions in support of the same. 

10. No further opportunity was sought by the applicant in the applicant’s representative submissions to put on any further material in relation to the credibility issues.  This case is distinguishable from the circumstances in which the Tribunal has not made clear that the applicant’s credit is a live issue in relation to findings that may have been earlier accepted by a delegate. 

11. In that regard, the Tribunal explored with the applicant the fact that he went back to Afghanistan twice after the alleged fleeing of Afghanistan by the family to obtain a licence and then to marry on the second occasion.  The Tribunal identified in the transcript that on the second occasion the marriage was to one of the applicant’s cousins.  It was in those circumstances the Tribunal raised the question of whether there was any trouble because they are the people who killed the applicant’s father.  That issue referred to by the applicant was again a clear identification that the alleged incident involving the father and the blood feud are live issues.

12. I should also note that the reference to the blood feuds was an issue touched upon by the applicant’s representative in the transcript on the day of the hearing in submissions.  I do not accept the proposition that the issue of the father’s death and the decision of the family to flee Afghanistan as a result of a blood feud was not an apparent live issue before the Tribunal. 

13. There was no denial of procedural fairness in the conduct of the hearing by the Tribunal. There was no breach by the Tribunal of s.425 of the Migration Act 1958.  The applicant had a genuine hearing.  The alleged jurisdictional error is not made out.  The application is dismissed. 

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

Date: 5 April 2016