DDN16 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DDN16 v Minister for Home Affairs [2018] FCA 1697

Appeal from: DDN16 v Minister for Immigration & Anor [2018] FCCA 1166
File number: NSD 766 of 2018
Judge: ROBERTSON J
Date of judgment: 7 November 2018
Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – Held: no appellable error on the part of the primary judge – existence of certificate under s 438 of the Migration Act 1958 (Cth) did not establish jurisdictional error on the part of the Tribunal as immaterial to its substantive and procedural decision-making
Legislation:

Migration Act 1958 (Cth) s 438

Federal Court Rules 2011 (Cth) r 36.75

Cases cited:

VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; 129 FCR 168

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588

Date of hearing: 7 November 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 43
Counsel for the Appellant: The Appellant did not appear
Solicitor for the First Respondent: Mr T Galvin of Minter Ellison
Counsel for the Second Respondent: The Second Respondent submitted save as to costs

ORDERS

NSD 766 of 2018
BETWEEN:

DDN16

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

7 NOVEMBER 2018

THE COURT ORDERS THAT:

1.Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal is dismissed.

2.The appellant pay the costs of the first respondent, as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

  1. This appeal was listed for hearing at 10:15AM this morning. The appellant was not present and there had been no communications from him. I delayed coming onto the bench until 10:30AM so as to give the appellant more time if he was running late. At 10:30AM the appeal was called and the appellant remained absent. In those circumstances, the legal representative of the respondent Minister applied for an order that the appeal be dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). I granted that application. I also indicated that I would give my reasons in relation to the substantive matter against the event that there was an application to set aside the order under r 36.75(2). What follows are my reasons, albeit given in the absence of submissions, either written or oral, on behalf of the appellant.

  2. This appeal is from the judgment of the Federal Circuit Court of Australia given on 9 May 2018, dismissing the appellant’s application for judicial review of the decision of the Administrative Appeals Tribunal made on 5 October 2016.

  3. The appellant is a citizen of Malaysia who arrived in Australia on 14 September…

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Details
Case
[2018] FCA 1697
Decision Date

CaseChat Overview and Summary

The case of DDN16 v Minister for Home Affairs involved the appellant, DDN16, appealing against the decision of the Federal Circuit Court of Australia, which dismissed an application for judicial review of a decision by the Administrative Appeals Tribunal. The central issue in the appeal was whether the Tribunal had committed an error of law or denied the appellant procedural fairness in its assessment of his claims for protection in Australia. The appellant had raised issues regarding the existence of a certificate under section 438 of the Migration Act 1958 (Cth) and its potential impact on the Tribunal’s decision-making process.

The legal issues before the court included whether the existence of the s 438 certificate constituted a jurisdictional error on the part of the Tribunal and whether this error affected the substantive and procedural fairness of the Tribunal’s decision. The Minister for Home Affairs argued that the certificate did not impact the Tribunal’s assessment of the appellant’s claims and that no jurisdictional error was made. The appellant's claim that the Tribunal should have considered the certificate was not raised before the primary judge, and the court held that it would not allow new grounds to be raised at the appeal stage unless it was in the interests of justice.

The court found that the primary judge had correctly concluded that the Tribunal did not act on the s 438 certificate and that it did not deny the appellant procedural fairness. The certificate pertained only to the appellant's identity, which the Tribunal had already accepted, and therefore, it did not impact the outcome of the Tribunal’s review. The court upheld the primary judge's findings that the absence of reference to the certificate in the Tribunal’s reasons indicated that it did not consider the document material to the review. Consequently, the court dismissed the appeal with costs.

The court’s decision concluded that there was no appellable error in the primary judge’s findings regarding the s 438 certificate. The appeal was dismissed, and the appellant was ordered to pay the costs of the first respondent as agreed or assessed. This ruling ensures that the decision of the Administrative Appeals Tribunal remains unchallenged on the grounds presented in the appeal.

Orders

Orders of the court

1. Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal is dismissed.

2. The appellant pay the costs of the first respondent, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The respondent Minister submits that neither of these grounds were raised before the Federal Circuit Court. The grounds of the application for judicial review in the Federal Circuit Court were (as written):1. The decision of the Tribunal2. is effected by an error of law3. denied the applicant procedural fairness.The Tribunal’s decision The Tribunal, at [10], identified the issue in the case as whether the appellant was entitled to protection in Australia on refugee grounds or, in the event that he was not, on complementary protection grounds. Another significant issue, the Tribunal said, was the appellant’s credibility as a witness. In his oral evidence to the Tribunal, the appellant claimed that when he was at school he was the target of racial abuse by some fellow pupils who were ethnic Indians. He claimed his father took him away from the school and helped him to move to another part of Malaysia to get away from these Indian students. He said that when he returned to his hometown, the students were there waiting for him. He also claimed his father made a report to the police about the Indian students taunting him at school about a week before they both came to Australia. The appellant claimed that two or three months after they came to Australia, his father was back in his home district running his shop when Indians came to the shop asking after the appellant. The appellant claimed the students vandalised the shop and demanded money. The appellant said that these erstwhile teenagers were now part of an Indian gang that was harassing his father in the shop and demanding that his father produce the appellant so that they could punish him for the “argument” they had back in their school days. The Tribunal put to the appellant that it seemed implausible that authorities in Selangor, which is a predominantly Muslim state in Malaysia, would ignore reports of criminal activity by minority Indian gangs if they were reported. The appellant did not provide a satisfactory response to this. The appellant said to the Tribunal he could not relocate within Malaysia as the gang his fellow pupils had joined had networks all over the country. However, the Tribunal said, the appellant said he relocated to a district about 50 kilometres away from his home district and did not suggest he was pursued there; rather he said the gang was waiting for him after he returned to his home district. The Tribunal said that the claim about the appellant being taken away from the school did not appear to sit with the claim about the police report about activities at that school being lodged with the police a week before he left Malaysia. The claim about relocating away from the appellant’s home district did not appear to sit with the evidence in the protection visa application form about staying at the same address and same school right up to September 2012. The Tribunal referred the appellant to claims he made in the statement attached to his protection visa application form and drew his attention to apparent inconsistencies in his overall story. In his protection visa application form the appellant said that the Indians had first tried to persuade him to join the group, an act which suggested they first wanted to be friends with him. In response, the appellant said they kept harassing him. He then changed the evidence he had given to the Tribunal at the hearing, saying that because he refused to be their friend they refused to let him go. The Tribunal indicated to him that the Tribunal found it hard to believe that an Indian clique or gang with Hindu Tamil names calling him “Paki” would ever have been interested in having him join their group.

Ratio Decidendi

Legal Principle Established

The Minister submitted that in the present case, the s 438 certificate and folio 42 of file number CLF2015/60883 could have had no impact on the Tribunal’s assessment of the appellant’s protection claims. In particular, the document (an internal document titled ‘Identification test: Protection visa applicants’) had no relevance to that assessment and the Tribunal accepted the appellant’s claimed identity. The Minister submitted that no jurisdictional error was revealed with respect to this issue, and therefore no appellable error arose out of the primary judge’s findings with respect to that certificate.Consideration The grounds of appeal are written in a common form and bear no relation to the reasons of the Tribunal or of the primary judge. In so far as the appellant seeks to establish error on the part of the primary judge by reference to grounds not raised before her Honour, I am not satisfied that it is expedient in the interests of justice to allow such grounds to be raised: see VAAC at [26] and VUAX at [46]. The proposed grounds self-evidently have no merit. As to the grounds which were argued before the primary judge apparently relating to the Tribunal’s fact finding as to the appellant’s credibility, I see no error in the reasoning of the primary judge and the appellant identified none. It is not clear whether the s 438 issue was taken by the appellant before the primary judge. I understand it was raised by the legal representative of the respondent Minister. In any event, her Honour considered the issue. I see no error in her Honour’s conclusions in relation to the s 438 certificate. That is, the Tribunal did not act on the certificate and did not deny the appellant procedural fairness. The certificate did not lead to the appellant suffering any practical injustice. I see no error in the acceptance by the primary judge that the most compelling inference to draw from the absence of reference to the certificate in the Tribunal’s reasons was that the Tribunal did not consider folio 42 to be material to the review. It could not have impacted on the outcome of the Tribunal’s review because it related only to the appellant’s identity, and the appellant’s identity was accepted by the Tribunal. No substantive issue arose from the non-disclosure of the document.Conclusion and orders The appeal is dismissed, with costs.