Cue15 v Minister for Immigration
[2018] FCCA 687
•28 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUE15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 687 |
| Catchwords: MIGRATION – Application for judicial review of decision affirming refusal of a protection visa application – at entry interview, applicant stated he did not feel threatened in Afghanistan but had lived the majority of his life in Iran – applicant claimed error of law and denial of procedural fairness by Tribunal –neither ground of judicial review made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 476 |
| Cases cited: Applicant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 |
| Applicant: | CUE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2857 of 2015 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 17 March 2017 |
| Date of Last Submission: | 17 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 28 March 2018 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor appearing as counsel for the Respondent: | Ms Wilde |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 23 December 2015 be dismissed.
The applicant pay the respondent’s costs fixed at $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2857 of 2015
| CUE15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 23 December 2015, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 November 2015 affirming a decision by a delegate of the first respondent (Minister) to refuse the applicant a protection (Class XA) visa.
The applicant, a national of Afghanistan aged 38 years, came to Australia alone as an irregular maritime arrival on 19 July 2012.
Upon arrival, the applicant underwent an entry interview in the course of which he described the circumstances of having travelled between Afghanistan and Iran since 1979. The applicant disclosed that he had been married and had two children. He speaks both Dari and Farsi, but little English. He said that he had left Iran returning to Afghanistan with his son and daughter after he discovered his wife’s infidelity. They later returned to Iran but did so illegally. His children remain in Iran and live with his parents.
At interview, he was asked to explain the reasons why he had left and come to Australia. The applicant said that there was no safety in Afghanistan and as a Shi’a Muslim of Hazara background people were very rude to him. He said that he had not actually been threatened.
According to the interview record, when asked to identify the specific factors that had actuated his decision to come to Australia, the applicant feared he would be put in gaol if he decided to exact revenge upon or kill his estranged wife and her new partner.
On 19 November 2012, the applicant lodged an application for a protection (Class XA) visa. He did so with the assistance of a firm of lawyers specializing as migration agents. The applicant made a statutory declaration in support of his application in which he claimed to fear harm from a corrupt Afghani government and Pashtun groups like the Taliban by reason of his Shi’a religion, his Hazara ethnicity, his imputed political opinion, his status as a refugee, as a member of the social group Shi’a Hazara and his status as a failed asylum seeker.
On 27 June 2913, the applicant attended an interview with a delegate of the Minister. On 3 October 2013, the delegate, not being satisfied that the applicant was a person to whom Australia owed protection obligations, refused the visa application.
On 16 October 2013, the applicant’s lawyer lodged an application for a review of the delegate’s decision by the then Refugee Review Tribunal (Tribunal).
On 18 December 2013, the applicant’s lawyer lodged a detailed submission together with other documents in support of the application for review.
On 3 September 2015, the applicant together with his lawyer (and with the assistance of an interpreter) attended a hearing before the Tribunal. In the course of that hearing, the Tribunal allowed that the applicant might provide further submissions by 17 September 2015. The applicant’s lawyers provided further submissions on 1 October 2015.
On 10 September 2015, the Tribunal provided the applicant’s lawyer with a copy of the recording taken at the hearing.
On 18 November 2015, the Tribunal made a decision to affirm the delegate’s decision to refuse the protection visa application and provided a written statement of its reasons for doing so (Reasons).
Procedural history
On 23 December 2015, the applicant filed an application for judicial review of the Tribunal’s decision. The application for judicial review contains the following grounds:
1.The decision of the Tribunal:
(a)is affected by an error of law; and
(b)denied the applicant procedural fairness.
2.I have made an application for legal assistance . . .
The grounds were wholly generalised and were not amplified by any particulars.
By an affidavit made in support of the application, the applicant exhibited a copy of the Tribunal’s Reasons. The affidavit deposed that ‘There are some changes in my family overseas and about my life that I will provide it soon through my legal representative.’
By his amended response, the Minister opposed the application on the ground that the Tribunal’s decision was not affected by jurisdictional error and for that reason was final and conclusive, not open to challenge and not amenable to prerogative relief in any court.
On 25 May 2016, orders were made by consent for the application to be listed for final hearing. The applicant was afforded, but did not take, an opportunity to file an amended application or written submissions.
In the combined circumstances of the applicant having filed an application containing a ground of review which was stated in general terms and having not filed any submissions, the Minister filed submissions which addressed the question whether the Tribunal: (1) made any error of law; (2) properly considered the applicant’s claims; and (3) afforded the applicant procedural fairness.
The applicant appeared at the hearing on the application for judicial review with the assistance of an interpreter. Although he confirmed that he had been provided a copy of the Reasons and court book, he had not brought those documents to court. The Minister’s counsel provided him with a further copy of the court book.
Consideration
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476.
The grant or refusal of a protection visa requires that the Minister has been satisfied or not satisfied (as the case requires) that the criteria prescribed for such visa have been satisfied: ss 36(2)(a), 36(2)(aa), 65(1)(a), 65(1)(b). Ministerial satisfaction that a protection visa applicant has fulfilled the criteria prescribed by s 36 is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].
On an application for judicial review the court is to determine whether the Tribunal’s decision is affected by jurisdictional error: s 476; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The applicant said that there was too much information in the court book and he could not understand it. As the applicant was self-represented at the hearing before me, I have re-examined the Reasons together with the materials comprising the court book.
The applicant explained that he was born in Afghanistan but had grown up in Iran and that Afghanistan was not a safe place. The applicant also said that Australia was a safe place.
As concerns the first basis on which the applicant contends there to have been a jurisdictional error, the Tribunal provided a statement of the relevant law as related to a protection visa application and the criteria applicable to a claim for protection on the ground that the applicant was a refugee or was entitled to complementary protection. The Tribunal also recognised the requirement that it was obliged to have regard to policy guidelines prepared by the Department of Immigration designated PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines respectively.
There is nothing from the Tribunal’s statement of principle indicating that it proceeded upon an erroneous legal principle.
The Tribunal identified that the central issue in the application was whether the applicant faced a real chance of serious harm or a real risk of significant harm if he was to live in his home of Mazar-e-Sharif. The Tribunal undertook a detailed consideration of the applicant’s claims and evidence before stating its findings upon those matters. The Reasons identified the claims that had been advanced for the applicant by his lawyers. Each of those claims was considered. Each of those claims was rejected.
In the course of formulating its Reasons, the Tribunal reviewed the applicant’s history including that he had been born in Mazar-e-Sharif, Afghanistan, and that his family had fled to Iran when he was an infant. It recorded that later, when the applicant’s family returned to Afghanistan they had given up their Iranian residency documents. Consequently, when the applicant later left Afghanistan and returned to Iran, his family had no residency documents but that they were able to live there illegally. The applicant’s evidence indicated that he had travelled to and from Iran by aeroplane and had not travelled by road.
The Tribunal found that the applicant’s claims that he faced harm to be vague, generalized and contradictory.
The Tribunal had regard to country information that it discussed with the applicant. This information comprised reports that Mazar-e-Sharif comprised a mixed population including Hazaras and was considered to be a stable, peaceful, safe and prosperous place and that it was regarded as being safer for Hazaras than Kabul. In assessing the risk of future harm, the Tribunal noted country information that the Balkh province and its capital, Mazar-e-Sharif, were considered to be amongst the most safe, secure and prosperous areas in Afghanistan.
The Tribunal found that it was reasonable for the applicant to live in Mazar-e-Sharif in the future and in so doing, referred to Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317. In SZSCA, the Court affirmed that in conducting a merits review of a protection visa application, the essential task of the Tribunal is to determine whether the applicant would be persecuted for a Convention reason if they returned to their country: (2014) 254 CLR 317, [17], [31]-[32], [37]-[38]; see also Applicant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, [43] (McHugh and Kirby JJ) and [72] (Gummow and Hayne JJ).
I see no error in the approach that was taken by the Tribunal on this issue. Nor is there anything in the Reasons that indicate those principles or the relevant criteria were misinterpreted or misapplied upon a merits review of the protection visa application. On the evidence before the Tribunal it was reasonably open to it to decide that Australia did not owe the applicant protection obligations because the applicant did not fear or have a well-founded fear of persecution.
The second basis on which the applicant contends there to have been a jurisdictional error was that the Tribunal failed to afford the applicant procedural fairness.
It is trite that the Tribunal was obliged to afford the applicant procedural fairness in relation to his application for a merits review of the visa application.
However, I see nothing in the approach taken by the Tribunal to indicate that the applicant was denied procedural fairness. He was issued an invitation to attend before the Tribunal to given evidence and make submissions upon the issues arising in the application. The applicant accepted that invitation. He was represented at the hearing and provided an interpreter. The applicant gave evidence and made submissions both before, during and after the hearing. The Reasons demonstrate that the hearing was conducted in a manner that was fair and just. In the course of the hearing, the Tribunal:
(a)addressed with the applicant the question of him living in Mazar-e-Sharif. The applicant’s substantive response was that he had been born there but lived for most of his life in Iran. This response is to be seen in the context that, in the course of his arrival interview, the applicant had confirmed that he did not perceive himself to be at risk from any of his neighbours;
(b)put certain adverse information to the applicant concerning the statement made upon entry that he did not feel threatened. The Tribunal also put inconsistencies in the evidence to the applicant, including that he had not previously mentioned an incident in which he had been threatened by armed men;
(c)afforded the applicant an opportunity to respond to adverse information at a later time (as he did, through his lawyers, by a further detailed written submission).
I conclude that neither ground of judicial review is made out. I have not identified any other basis on which the applicant might otherwise have raised a complaint as would warrant the conclusion that the decision is affected by jurisdictional error.
The application must be dismissed.
I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 28 March 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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