DKG16 v Minister for Immigration

[2017] FCCA 1461

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKG16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1461

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.91WA, 422B, 424A, 425

Cases cited:
BES16 v Minister for Immigration [2017] FCCA 820
Minister for Immigration v SZIAI (2009) 259 ALR 429
Minister for Immigration v SZNVW (2010) 183 FCR 575
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: DKG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3125 of 2016

Judgment of: Judge Driver

Hearing date: 23 June 2017

Delivered at: Sydney

Delivered on: 23 June 2017

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms Given of HWL Ebsworth Lawyers

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3125 of 2016

DKG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 October 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims and the decision of the Tribunal on them are conveniently set out in the Minister’s outline of legal submissions filed on 16 June 2017.   

Background

1. The applicant, a male citizen of Bangladesh, arrived in Australia by boat on 4 December 2012.[1]  On 1 October 2013, the applicant applied for a Protection (Class XA) visa.[2]  In the application, the applicant claimed to fear harm from the Bangladesh Government and the Awami League on the basis of his involvement with the Bangladesh National Party (BNP).[3] 

   [1] Court Book (CB) 1

   [2] CB 21

   [3] CB 68 to 70

2. On 28 April 2015, the delegate wrote to the applicant refusing the application and notifying the applicant that his application for a Protection visa was taken to be, and to have always been, a valid application for a Temporary Protection (XD) visa.[4] The delegate refused the visa application on the basis that he did not find the applicant's claims to be credible.[5]

   [4] CB 98

   [5] CB 114

3. The applicant applied to the Tribunal for review and attached a copy of the delegate's decision record and the summary of claims provided at the time of the visa application.[6]

   [6] CB 119

4. The applicant was invited to a hearing before the Tribunal, which was postponed at the applicant's request.[7] On 26 September 2016 the applicant's representative wrote a letter to the Tribunal seeking orders and making submissions.[8] 

   [7] CB 164

   [8] CB 178

5. The applicant appeared before the Tribunal on 28 September 2016.[9]  The hearing was conducted with the assistance of a Bengali interpreter.[10]

   [9] CB 182

   [10] CB 182

Tribunal decision

1. The Tribunal summarised all of the applicant's claims.[11]

   [11] CB192 to 194 at [29] to [65]

2. The Tribunal considered whether the applicant had destroyed documentary evidence relating to his identity, and found that he had.[12]  The Tribunal then considered whether the applicant had a reasonable explanation for destroying or disposing of his documentary evidence of identity and found that he did not.[13] 

   [12] CB 196 at [75]

   [13] CB 196 at [79]

3. The applicant provided the Department with a birth certificate with a name that was part of his name.[14] The Tribunal advised the applicant that it had completed an online search at the Bangladesh Office of the Registrar General, Birth and Death Registration of the name provided on the birth certificate, and no match was found.[15]  The applicant maintained the document was genuine. The Tribunal found that the applicant provided, or caused to be provided, a bogus document as evidence of his identity.[16] The Tribunal considered whether the applicant had a reasonable explanation for providing, or causing to be provided, a bogus document and found that he did not.[17]

   [14] CB 84

   [15] CB 197 at [85]

   [16] CB 197 at [89]

   [17] CB 197 at [91]

4. The Tribunal found that the grant of the applicant's visa application was precluded by s.91WA(2)(a) of the Migration Act 1958 (Cth) (Migration Act).

5. Nevertheless, the Tribunal proceeded to consider the applicant's claims for completeness, from [94] of its decision.  The Tribunal referred to various inconsistencies in the evidence provided by the applicant.  The Tribunal expressed extensive concerns about the applicant's credibility.[18] 

   [18] CB 202 at [143]

6. Ultimately, the Tribunal did not accept that, if the applicant returned to Bangladesh now, or in the foreseeable future, there was a real chance the applicant would face serious harm.  The Tribunal was not satisfied, on the evidence before it, that there was a real risk that the applicant would suffer significant harm.[19]

   [19] CB 205 at [155] to [158]

Present proceedings

1. These proceedings began with a show cause application filed on 14 November 2016.  The grounds in the application are:

   1. In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

   2. The tribunal failed to assess harm based on my claims.

   3. The tribunal failed to assess the present situation in Bangladesh since I left.

   4. The tribunal decision affected by the natural justice.

   5. The tribunal made decision without any verification of my genuine documentary evidence and statement.

   6. The Tribunal decision is identical or similar of the Departmental decision.

   Particulars:

   AAT unreasonably raised doubt over my claims for political opinion. The Department and the Tribunal misunderstaod or misconstrued the facts which was effect the decision.

   And far the safety of my life I forced to leave Bangladesh.

   I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidence.

   The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared after orrived by boat in Australia. Sometimes I was nervous and confused at the time of interview with the Department & the tribunal. I did not understand interpreter properly.

   For the protection of my life and I became serious target by the Police, Awami League and there activist.

   The Department has accepted that I was very canfused. I, myself was not understanding what answer I was giving for what question. I will provide mare details in my Amended Applicatian.

   I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.

   (errors in original)

2. The only evidence I have before me is the court book filed on 7 April 2017.  I received as a submission the affidavit filed with the judicial review application.  Only the Minister prepared written submissions in accordance with procedural orders made by the registrar. 

3. I invited oral submissions from the applicant this afternoon. He appeared uncertain as to what he should say.  I directed his attention to the grounds and particulars in his application and the critical decision of the Tribunal that he had submitted a bogus document in order to seek to establish identity and that he had failed to provide a reasonable explanation for that action. The applicant told me that his birth certificate was not bogus and that the Birth Registration Information System of Bangladesh (BRIS) verification system referred to by the Tribunal did not exist.  I rejected that contention on the basis of my recent decision in BES16 v the Minister for Immigration.[20]

   [20] [2017] FCCA 820 (BES16)

4. This case has some superficial similarity with BES16, although in that case, three different birth certificates had been provided, one of which was verified on the BRIS system.  The applicant briefly contended that he had also submitted more than one birth certificate, but on examination of the Court Book(CB), we were able to establish that the only birth certificate appearing in Bengali is that reproduced at CB 82 with the English translation at CB 84.  The applicant was unable to further advance his grounds of review.  Those grounds are dealt with in the Minister’s submissions. I agree with those submissions.

Ground 1

1. Without proper particulars, the Minister submits that ground one is incapable of a meaningful response. I agree. The particulars which the applicant has provided do not clarify which documents the Tribunal is said to have failed to consider.

2. I find  that the Tribunal considered all of the relevant material before it.

Ground 2

1. Ground 2 appears to be an attempt to engage the Court in impermissible merits review. 

2. A fair reading of the Tribunal decision demonstrates that the Tribunal considered all of the applicant's claims.[21]  Further, the Tribunal's credibility finding was open to it on the evidence before it and does not disclose any error.[22]

   [21] CB 192 to 194

   [22] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423

Ground 3

1. With respect to ground 3, I accept that this is a further attempt to engage the Court in impermissible merits review. The Tribunal specifically stated that it had regard to the most recent Department of Foreign Affairs and Trade (DFAT) report regarding Bangladesh.[23] 

   [23] CB 194 at [66]

Ground 4

1. The applicant does not meaningfully particularise any alleged breach of any provision of Division 4 of Part 7 of the Migration Act. Section 422B of the Migration Act has the effect of significantly limiting the natural justice hearing rule to those provisions.

2. The applicant was invited to, and attended, a hearing in accordance with s.425 of the Migration Act. The hearing was conducted with the assistance of a Bengali interpreter. The applicant has provided no evidence to support how the hearing was “conducted not freely and fairly”.

3. As to s.424A, the Tribunal received information from the Bangladesh Registrar General, Birth and Death Registration that the applicant's matching birth records were not found. This information was discussed with the applicant at the Tribunal hearing. To the extent that s.424A was engaged in relation to that gap in information, there is no basis for concluding that the obligation of disclosure was not met orally.

Ground five

1. Contrary to the applicant's claims, the Tribunal sought to verify the applicant's name that was provided on his identity document and no records were found.[24] This information was put to the applicant and the Tribunal considered the response provided by the applicant.[25]

   [24] CB 197 at [86]

   [25] CB 197 at [87] to [89]

2. In any event, it is well established that a Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence.[26]  Notably, it is for the applicant to demonstrate that had the Tribunal made inquiries the result would have been favourable for the applicant.  In the absence of such evidence, the applicant has not established a sufficient link between the alleged failure to inquire and the outcome of the review.[27] 

   [26] Minister for Immigration v SZNVW (2010) 183 FCR 575

   [27] Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25] to [26]

3. The applicant has not established, or sought to establish, how the verification of the documents could be easily ascertained beyond the inquiries the Tribunal made.

4. It is noteworthy in this case that, notwithstanding that the Tribunal found that s.91WA of the Migration Act was applicable. It went on to consider the applicant’s claims for protection. That was not done in BES16.  In the present case, the Tribunal may have entertained some doubt over its bogus document finding or it may simply have proceeded to consider the protection claims out of an abundance of caution.  In any event, there was no error in the Tribunal so doing. 

Ground 6

1. Contrary to the applicant's claims, the Department decision and the Tribunal decision are not identical.  Further, it is unsurprising that the decisions are similar as the Tribunal must consider the claims and information that were before the Department. 

Conclusion

1. I conclude that the applicant is unable to establish an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court’s scale.  The applicant enquired as to whether this would be followed up by letter, which was confirmed by the Minister’s solicitor.  The applicant did not otherwise make any submissions on costs. 

3. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 29 June 2017