DKG16 v Minister for Immigration and Border Protection
[2017] FCA 1512
•13 December 2017
FEDERAL COURT OF AUSTRALIA
DKG16 v Minister for Immigration and Border Protection [2017] FCA 1512
Appeal from: Application for leave to appeal: DKG16 v Minister for Immigration and Border Protection [2017] FCCA 1461 File number: NSD 1101 of 2017 Judge: BURLEY J Date of judgment: 13 December 2017 Catchwords: MIGRATION - Application for leave to appeal from interlocutory dismissal of show cause application in the Federal Circuit Court - refusal of a protection visa - No arguable case of jurisdictional error - application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) s 91WA
Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court Rules 2011(Cth) r 35.33(1)(a)(i)
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; (1991) 104 ALR 621
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALJR 1123
Date of hearing: 21 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: The Applicant did not appear Solicitor for the Respondent: Ms K Hooper of HWL Ebsworth Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS
NSD 1101 of 2017 BETWEEN: DKG16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
13 DECEMBER 2017
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
1. INTRODUCTION
The applicant is a citizen of Bangladesh who arrived in Australia by boat on 4 December 2012. On 1 October 2013 he applied for a Protection (Class XA) visa which, by operation of s 45AA of the Migration Act 1958 (Cth) (Act) is taken to be an application for a Temporary Protection (Class XD) visa (Visa). On 28 April 2015 the applicant was notified that his application was rejected by a delegate of the Minister for Immigration and Border Protection (Minister) and he then applied to the Administrative Appeals Tribunal (Tribunal) for a review of the delegate’s decision. On 17 October 2016 the Tribunal gave a decision that affirmed the decision of the delegate not to grant the Visa.
On 14 November 2016 the applicant filed an application in the Federal Circuit Court of Australia (FCCA) seeking a judicial review of the decision of the Tribunal. On 23 June 2017 a judge of the FCCA considered the application at a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (FCCA rules), and determined that the application should be dismissed. That decision is interlocutory in nature (see FCCA rules 44.12(2)), and accordingly the applicant requires leave to appeal from that decision; s 24(1A) Federal Court of Australia Act 1976 (Cth) (FCA Act).
The applicant filed the present application for leave to appeal to the Federal Court of Australia on 6 July 2017. Although the applicant was represented by migration agents for the purpose of filing his application in the Tribunal (he was not represented at the hearing before the Tribunal), the applicant was not legally represented before the FCCA or this Court.
The grounds for his application for leave to appeal are as follows:
1.The Hon Judge Driver of the Federal Circuit Court fail[ed] to hold that the tribunal committed a jurisdictional error.
2.Hon Judge failed to hold that the tribunal made an error of law when it did not take up and separately deal with the factual issues.
3.The tribunal failed to assess the current situation in Bangladesh for the Jamaat-e-Islam[i] activists.
Prior to the hearing, the Minister filed written submissions, but the applicant did not. The applicant did not appear at the hearing, despite being notified of the hearing date. The Minister was represented by Ms Hooper, a solicitor from HWL Ebsworth. She submitted that because the applicant failed to appear at the hearing the application should be dismissed pursuant to Federal Court Rules 2011 (Cth) (FCA rules) r 35.33(1)(a)(i), but also relied on her written submissions.
2. THE TRIBUNAL
The decision of the primary judge succinctly summarised the reasons given by the Tribunal as follows.
The Tribunal summarised all of the applicant’s claims. It considered whether the applicant had destroyed documentary evidence relating to his identity, and found that he had. It 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.
The applicant provided the Department with a birth certificate with a name that was part of his name. The Tribunal advised the applicant that it had completed an online search of the Bangladesh Office of the Registrar General, Birth and Death Registration of the name provided on the birth certificate, and no match was found. The applicant maintained that the document was genuine. The Tribunal found that the applicant had provided, or caused to be provided, a bogus document as evidence of his identity. The Tribunal considered whether the applicant had a reasonable explanation for providing, or causing such a document to be provided, and found that he did not.
As a consequence, the Tribunal found that the grant of the applicant’s visa application was precluded by s 91WA of the Act.
The Tribunal then proceeded to consider the applicant’s claims in [94] – [153] of its decision. It referred to a number of inconsistencies in the evidence provided by the applicant and expressed detailed concerns about the applicant’s credibility. Ultimately, the Tribunal did not accept that, if the applicant returned to Bangladesh now, or in the foreseeable future, there was a real chance that 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.
3. THE PRESENT APPLICATION
A grant of leave to appeal will be made where it is established that the decision below is attended with sufficient doubt to warrant it being reconsidered on appeal and where substantial injustice would result if leave were refused, supposing the decision of the primary judge to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at [398] – [399].
In the present case, attention focusses immediately on the first of these requirements.
In this context, I commence my consideration of this appeal with the observation, which is apt for many such applications, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the applicant satisfies the criteria for the grant of the Visas or to grant the applicant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the Visa. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the applicant a Visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth).
In the present case the applicant filed no draft Notice of Appeal setting out the grounds upon which he contends the primary judge erred. However, in his affidavit in support of his application for leave to appeal he stated as follows:
1.I am the Appellant of the Draft Notice of Appeal Application.
2.The Federal Circuit Court judge Driver dismissed my judicial review application SYG3125/2016 without giving any reasonable grounds.
3.There were arguable grounds to the judicial review application, but unfortunately the Federal Circuit Court Judge failed to take into account all relevant grounds when making the decision.
4.[there is no paragraph 4]
5.I believe that the Federal Circuit [Court] breached the rules of natural justice and procedural fairness when making its decision.
6.The Federal Circuit Court Judge Driver failed to identify the error made by the Administrative Appeals Tribunal.
The Minister proposed that the content of the affidavit be taken to be an expression of the grounds upon which the applicant relies. In my view that is an appropriate course to take. Allowances should be made for procedural infelicities where an applicant is self-represented. It will be seen that the grounds as expressed in the affidavit overlap to a large measure with the matters set out in support of the application for leave to appeal, quoted in [3] above. The only additional matter that I will consider is that set out in the final paragraph of the application for leave, being the specific claim that the Tribunal failed to assess the current situation in Bangladesh for the Jamaat-e-Islami activists.
In my view none of the grounds as stated give rise to a reasonably arguable case that the Tribunal fell into jurisdictional error, or that the FCCA erred in failing to find that the Tribunal fell into error.
The first and second grounds set out in his affidavit as [2] and [3] simply assert that the primary judge did not accept the position adopted by the applicant, without providing any particulars of an alleged error. However, the primary judge identified each of the 6 grounds raised before him by the applicant, and addressed each in turn. No jurisdictional error is apparent.
The third ground (set out in [5] of the applicant’s affidavit) contends broadly that the FCCA acted in breach of the rules of natural justice. That claim is not the subject of any particulars. The Minister points out that the applicant commenced his proceedings in the FCCA on 14 November 2016, and that he was given a first return date of 23 March 2017. On that day the applicant appeared before a Registrar of the FCCA with the assistance of a Bengali interpreter and agreed to orders providing a timetable to bring the proceedings to a show cause hearing. The applicant appeared at the show cause hearing, again with the assistance of a Bengali interpreter and was invited to make submissions.
In those circumstances I find that there is no reasonably arguable case that the applicant was denied procedural fairness by the FCCA.
The fourth ground is that the primary judge failed to identify errors made by the Tribunal. That ground is unsupported by any particulars which draw attention to any specific error. None is immediately apparent from the decision of the Tribunal. Indeed, as noted above, the Tribunal found that for several reasons (including failure to satisfy the requirements of s 91WA and failure to provide a credible version of events that would satisfy the requirements for granting the Visa) the application should be refused. In those circumstances I find that there is no reasonably arguable case that this ground will be made out.
The final ground (set out in his application for leave at [3]) is that the Tribunal failed to assess the current situation in Bangladesh for the Jamaat-e-Islami activists.
The decision of the Tribunal refers at [115] to discussing with the applicant some country information from the Department of Foreign Affairs and Trade (DFAT) dated 5 July 2016 which assessed that Jamaat-e-Islami members are subjected to a low level of inter-party violence but notes that the number of casualties remains relatively low. At [149] the Tribunal notes that the applicant had no involvement in student politics during 2011 or 2012 and rejected the applicant’s claim that he had attended any university or college after 2010. At [149] the Tribunal expressly put weight on the DFAT country information as to the low level of violence visited upon members of Jamaat-e-Islami, and at [149] it notes that the applicant is not a known supporter of Jamaat-e-Islami or its student wing Shibir.
The primary judge rejected an equivalent claim before him at [21], observing, correctly in my view, that in this ground the applicant appears to be seeking to engage in an impermissible merits review and that the Tribunal had specifically stated that it had regard to the most recent DFAT report regarding Bangladesh.
Having regard to the foregoing I am satisfied that the applicant has not established an arguable case that the FCCA erred in failing to find jurisdictional error on the part of the Tribunal. I would in any event have dismissed the application because of the applicant’s failure to appear at the hearing; FCA rules r 35.33(1)(a)(i).
4. DISPOSITION
For the reasons given above, I dismiss the application. The applicant should pay the first respondent’s costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 13 December 2017
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