CTB16 v Minister for Immigration

[2019] FCCA 1873

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTB16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1873

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to consider the applicant’s claims – whether the Tribunal failed to comply with its statement that it would give the applicant an opportunity to respond to its concerns – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal made an error of law.

Legislation:

Migration Act 1958, s.424A

Applicant: CTB16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2069 of 2016

Judgment of: Judge Riley

Hearing date: 20 June 2019

Date of Last Submission: 20 June 2019

Delivered at: Melbourne

Delivered on: 20 June 2019

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: No appearance

Counsel for the first respondent: Warren Mosley

Counsel for the second respondent: No appearance

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 23 September 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2069 of 2016

CTB16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL
Second respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal. The applicant is a citizen of Pakistan. He lived in Malaysia from May 2008 until May 2010. He came to Australia on a student visa in April 2011. His wife joined him in Australia in 2012.

2. On 14 February 2014, the applicant applied for a protection visa with his wife and child included as dependents, but without claims of their own. The applicant lodged a statutory declaration on 11 March 2015. The applicant attended an interview with a delegate of the Minister on 17 March 2015. On 8 May 2015, the delegate refused the application.

3. The applicant then sought review by the Tribunal. The applicant did not include his wife and child in that application, as the applicant had separated from his wife at that time. The applicant engaged a migration agent and lawyer on 2 March 2016. The Tribunal conducted a hearing on 3 March 2016, which the applicant attended with his agent and an interpreter. The agent filed post‑hearing written submissions on 16 March 2016.

4. The Tribunal conducted a further hearing on 28 July 2016. The Tribunal received evidence from the applicant’s brother, as well as the applicant. Following the hearing, the Tribunal sent the applicant at his registered migration agent’s address a letter under s.424A of the Migration Act 1958. The court book shows that letter was sent on 15 August 2016. It gave the applicant until 29 August 2016 to provide a response. No response was forthcoming. The Tribunal made its decision on 30 August 2016.

5. The applicant then applied to this court within time on 23 September 2016.

6. In his protection visa application, the applicant said that his brother had married a woman from a family of Sunni extremists who, after the marriage, started to threaten the applicant’s family who were Shias. In his statutory declaration provided to the Department a little over a year later, the applicant said that the brother’s wife had threatened the family because she wanted the applicant’s brother to obtain a visa for her to come to Australia.

7. There were various subsidiary claims made in both the original protection visa application and in the statutory declaration. The applicant made additional claims in the interview with the delegate in connection with being a member of MQM and that he would be killed for drinking alcohol if he returned to Pakistan.

8. The Tribunal considered that there were numerous inconsistencies and discrepancies in the applicant’s evidence. Particularly, the Tribunal noted that the applicant had said in his protection visa application that his brother’s wife was a member of a Sunni extremist organisation whereas in his statutory declaration, he said his brother’s wife mistreated his family because she was trying to force the applicant’s brother to get her a visa to come to Australia.

9. While it is possible that both of these claims could have co-existed and been true, it seems to me that it was open to the Tribunal to rely on the different explanations for the reason for fleeing Pakistan given by the applicant in the protection visa application as opposed to the statutory declaration. In each case, there was no reference to the other issue and in each case, the issue raised was put forward as the causative reason for leaving.

10. For this and other reasons, the Tribunal did not accept that the applicant’s claims were credible. The Tribunal did not accept, in particular, that the applicant is a Shia. The Tribunal considered that the applicant’s evidence in this regard was vague and inconsistent. The Tribunal did not accept that the applicant was a member of MQM. The Tribunal also considered various subsidiary claims made by the applicant which it did not accept for reasons which it gave.

11. The matter was first listed for final hearing in this court on 6 March 2019. On that occasion, the applicant told the court that his lawyers had indicated a month previously that they would not be able to appear for him at the hearing because he had not paid them, but that he was then seeking assistance from Victoria Legal Aid. The application did not indicate that it had been prepared by a lawyer. However, the court gave the applicant the benefit of the doubt and adjourned the matter until today.

12. The applicant appeared today without the benefit of legal assistance. He told the court that Victoria Legal Aid had told him that they were unable to assist him.

13. The first ground of review in the application filed on 23 September 2016 (“the application”) is:

    1.The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal to affirm the decision of the delegate of the Minister.

14. That is not a ground as such and I say nothing further about it.

15. The second ground of review in the application is:

    2.The delegate of the misister failed to consider the applicants claims.  (errors in original)

    PARTICULARS

    (i)   The applicant was advised he would be given an opportunity to respond to concerns the member had raised and was not given this opportunity.

    (ii)  The applicant was not given natural justice and an error of law has occurred.

16. When asked to explain to the court which claims the Tribunal had failed to consider, the applicant said that the Tribunal had simply said that he was lying and did not believe his claims. That is clearly a different complaint to the complaint of the failure to consider all of an applicant’s claims. It seems to me that the Tribunal did carefully consider all of the applicant’s claims. This aspect of ground 2 is not made out.

17. The first particular to ground 2 is that the applicant was advised that he would be given an opportunity to respond to concerns the member had raised and he was not given that opportunity. The court book contains a s.424A letter dated 15 August 2016 from the Tribunal to the applicant’s agent. That followed the hearing on 28 July 2016. It raised the Tribunal’s concerns and sought the applicant’s response to them. The s.424A letter was faxed to the agent at the fax number specified in the document appointing the agent as the applicant’s representative.

18. There are a number of communications to and from the Tribunal and the agent via that fax number. It seems to me that there is no proper basis upon which I could conclude that the s.424A letter was not sent to the agent. The s.424A letter set out matters that the Tribunal was concerned about and invited the applicant’s response. Consequently, I am not satisfied that the applicant was not given the opportunity to respond to concerns that the Tribunal had following the hearing.

19. The second particular to ground 2 in the application is that the applicant was not given natural justice and an error of law has occurred. The applicant said that he did not get natural justice because he did not get the s.424A letter. However, as I have discussed, there is no reason to believe that the letter was not sent to the agent as addressed. If the agent did not provide it to the applicant, that is a matter between the agent and the applicant. It is not indicative of jurisdictional error on the part of the Tribunal.

20. In relation to natural justice, the applicant said that the s.424A letter asked for a response by 29 August 2016 and the Tribunal made its decision on 30 August 2016. The applicant said that, as a matter of natural justice, he should have been given more time. However, the agent did not ask for more time. The applicant was given two weeks. That appears to me to be reasonable in the circumstances.

21. The applicant said that the Tribunal was concerned that the applicant did not have a particular letter relating to his political opinions. The applicant said that he obtained that letter 23 days after the decision was made. The applicant said that, if the decision had been delayed, he could have provided the letter to the Tribunal. That may be so. However, I do not see that these circumstances give rise to a denial of natural justice. The hearing was held over two days, the first being 3 March 2016 and the second being 28 July 2016. The Tribunal sent a s.424A letter on 15 August 2016. It gave the applicant two weeks to provide further information. The applicant did not ask for any extension of time. I do not consider that there was a denial of natural justice in the Tribunal deciding the case on 30 August 2016.

22. In relation to the applicant’s allegation that there was an error of law, the applicant said that he relied on the fact that the Tribunal made its decision the day after the expiry of the period for the response to the s.424A letter. That issue has already been addressed.

23. The applicant told the court today that he was depressed at the time of the Tribunal hearings and that he was on WorkCover for a work injury at that time and was separated. The applicant was represented by a migration agent and lawyer at the time of the Tribunal hearings. If these issues had impacted on the applicant’s ability to present his case, it would have been incumbent upon the agent to raise the issues with the Tribunal. As the agent did not do so, I do not consider that there was any jurisdictional error in the Tribunal proceeding as it did.

24. I have read the Tribunal’s reasons for decision and various parts of the court book. I have been unable to discern anything that could arguably amount to a jurisdictional error.

1. Consequently, the application will be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Date: 5 July 2019