FEDERAL COURT OF AUSTRALIA
DLE16 v Minister for Home Affairs [2019] FCA 136
Appeal from: DLE16 v Minister for Immigration & Anor [2018] FCCA 1392 File number(s): NSD 1570 of 2018 Judge(s): DERRINGTON J Date of judgment: 15 February 2019 Catchwords: MIGRATION – application for extension of time to appeal from Federal Circuit Court’s refusal to set aside decision of Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal’s findings were open to it – whether the Administrative Appeals Tribunal had regard to all relevant material – whether the Administrative Appeals Tribunal approached its task with bias – no jurisdictional error – no error in primary judge’s reasons – appeal dismissed Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400
Dunlop v Fishburn (No 3) [2012] FCA 315
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Parker v The Queen [2002] FCAFC 133
QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZLIH v Minister for Immigration & Citizenship [2009] FCA 108
SZSDA v Minister for Immigration & Citizenship (2012) 135 ALD 17
VAUX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588
Date of hearing: 15 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 44 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms J Strugnell of Minter Ellison ORDERS
NSD 1570 of 2018 BETWEEN: DLE16
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DERRINGTON J
DATE OF ORDER:
15 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for an extension of time in which to appeal the decision of the Federal Circuit Court of Australia made on 29 May 2018 is refused.
2.The applicant is to pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
Introduction
The application before the Court is for an extension of time in which to file a Notice of Appeal from the decision and orders of the Federal Circuit Court of Australia (FCC) made on 29 May 2018. By that decision the primary judge dismissed DLE16’s application for judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) not to grant him a Temporary Protection (Class XD) Visa (TPV). The Tribunal had affirmed the decision of the delegate of the Minister to refuse to grant DLE16 a TPV.
Pursuant to r 36.03(a)(i) of…
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Details
- Case
- [2019] FCA 136
- Decision Date
CaseChat Overview and Summary
The case of DLE16 v Minister for Home Affairs concerns an application by the applicant, a citizen of Bangladesh, for an extension of time to appeal a decision of the Federal Circuit Court (FCC). The FCC had dismissed an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) to refuse a protection visa. The applicant sought to challenge the AAT's decision, which rejected his claims of persecution based on his membership in the Bangladesh Nationalist Party and alleged attacks by supporters of the Awami League. The central issue before the court was whether the AAT's decision was affected by jurisdictional error, whether the findings were open to the AAT, and if the AAT had considered all relevant material and approached its task without bias.
The court found that the AAT's decision was not marred by jurisdictional error. The AAT had carefully considered the applicant's credibility and found his claims to be implausible and inconsistent. The court held that the AAT was entitled to discount the applicant's evidence and was not obliged to accept his version of events without question. The court further determined that the AAT's findings were open to it and that the AAT had appropriately considered all relevant material and did not approach its task with bias. Given these findings, the court concluded that the primary judge had correctly dismissed the application for judicial review.
In light of the above, the court refused the applicant's application for an extension of time to appeal the FCC's decision and ordered the applicant to pay the first respondent's costs of the application. The court's ruling underscores the importance of the AAT's role in assessing the credibility of visa applicants and the limited scope of judicial review in such matters.
The court found that the AAT's decision was not marred by jurisdictional error. The AAT had carefully considered the applicant's credibility and found his claims to be implausible and inconsistent. The court held that the AAT was entitled to discount the applicant's evidence and was not obliged to accept his version of events without question. The court further determined that the AAT's findings were open to it and that the AAT had appropriately considered all relevant material and did not approach its task with bias. Given these findings, the court concluded that the primary judge had correctly dismissed the application for judicial review.
In light of the above, the court refused the applicant's application for an extension of time to appeal the FCC's decision and ordered the applicant to pay the first respondent's costs of the application. The court's ruling underscores the importance of the AAT's role in assessing the credibility of visa applicants and the limited scope of judicial review in such matters.
Orders
Orders of the court
1. The application for an extension of time in which to appeal the decision of the Federal Circuit Court of Australia made on 29 May 2018 is refused.
2. The applicant is to pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Before the FCC the learned primary judge correctly identified that the factual background of the applicant’s claims and the decision of the Tribunal were accurately set out in the written submissions of the first respondent. Her Honour adopted that statement for the purposes of her decision and was correct to do so. They were:B FACTUAL BACKGROUND4.The applicant is a citizen of Bangladesh, who arrived in Australia as an irregular maritime arrival on 6 May 2013. The applicant applied for a Protection (Class XA) visa on 2 September 2013 (court book (CB) 20–45). However, by operation of section 45AA of the Act and regulation 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), his application was taken to be, and to have always been, an application for a TPV.5. On 29 April 2015, a delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the applicant a TPV (CB 100–114).6. The applicant sought review of the delegate's decision before the Tribunal by application dated 11 May 2015 (CB 116–122).7. The applicant appeared at a hearing before the Tribunal on 7 October 2016 (CB 149–151).8. The Tribunal made its decision on 31 October 2016, affirming the decision not to grant the applicant a TPV (CB 397–416).CAPPLICANT’S CLAIMS9. The applicant claimed to fear harm in Bangladesh by members or supporters of the Awami League (AL) for reason of his membership of and support for the Bangladesh Nationalist Party (BNP). In support of this claim, the applicant recounted the following events (CB 70–72):(a)he was from Kulia village, Panisara union, Jessore district and resided there until March 2012;(b)he joined the BNP between two and a half and eight years ago (having previously voted for them in 1991 and 1996) and he held the 'number 5' position in the BNP in his village;(c)he was the 'organising secretary' and he organised the meetings;(d) there was a bomb attack at one of the meetings;(e) in 2011 or 2012 he was hit over the head with a hockey stick and his wrist broken when he was attacked by AL supporters and he has a poor memory as a result;(f) after the attack he fled to Dhaka, where he owned a grocery store for 12 months before leaving Bangladesh;(g) while in Dhaka, someone 'ran behind him' and he suspected it was an AL supporter;(h) AL supporters would find him in Dhaka because they have telephones; and(i) the applicant has attended four to seven BNP meetings since arriving in Australia.DTRIBUNAL DECISION10. The Tribunal rejected the applicant's claims on the basis of comprehensive adverse credibility findings. The Tribunal made the following key findings:(a)it was not satisfied the applicant had any injuries or medical conditions which caused memory loss or explained the deficiencies in his evidence, especially given he had not provided any medical evidence despite being allowed time to do so (CB 410–411: [65]–[66], [71]);(b)it did not accept the applicant voted in 1991 aged 8 or 1996 aged 13, because his evidence in this respect was implausible (CB 410–411: [68], [70]);(c)it found the applicant's evidence about when he first became involved in the BNP was vague and shifted over time (CB 411: [70]);(d)it found the applicant's evidence about the problems he encountered as a BNP supporter was vague and unpersuasive with respect to whether his wrist was broken or whether there had been a bomb at a meeting (CB 411: [71]);(e)it found the applicant's evidence about his involvement in the BNP lacked detail and had shifted over time such that his evidence that he was of adverse interest to AL supporters in his home area was not credible (CB 412: [72]–[73]);(f)it found the applicant's evidence about why and how he joined the BNP was inconsistent and unpersuasive (CB 412–413: [74]);(g) it found the applicant's claims were fabricated to obtain a protection visa and the poor quality of his evidence was not due to memory issues, but was due to 'struggling to describe experiences that he never actually had' (CB 413: [75]);(h) having regard to its cumulative concerns about the applicant's credibility, the Tribunal found the applicant was not a credible witness and rejected the entirely of his claims about his past experiences in Bangladesh (CB 413–414: [76]–[77]);(i) while the Tribunal was prepared to accept the applicant may have attended BNP meetings in Australia, it considered he did so for 'the sole purpose of strengthening his protection visa claim' and disregarded his conduct under section 91R3 of the Act (CB 414–415: [79]–[80]); and(j) it accepted that the applicant would return to Bangladesh as a failed asylum seeker, but having regard to subsection 91R(3) of the Act, and on the basis of country information, it did not accept that the applicant would face harm because of his profile as a failed asylum seeker or because of his limited involvement with the BNP in Australia (CB 415–416: [81], [82]).11. For these reasons, and having considered the applicant's claims individually and cumulatively, the Tribunal was not satisfied that there was a real chance the applicant met the refugee criterion (CB 415–416: [82], [84]). For the same reasons, the Tribunal was not satisfied the applicant met the complementary protection criterion (CB 415–416: [83], [85]).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
As the above facts identify, the Tribunal accepted that DLE16 was a national of Bangladesh but it did not accept his claims and supporting evidence that he was entitled to protection in Australia. In considering the application before it, the Tribunal correctly approached the assessment of credibility with caution and an understanding that the mere fact that an applicant for a visa is unable to substantiate all of their claims does not mean they are not generally credible. The Tribunal was also mindful of the difficulties facing asylum seekers in recalling their past experiences and using different interpreters. It also considered that DLE16 had made claims that he had suffered a trauma to his brain which resulted in some dysfunction. The Tribunal offered him the opportunity to provide post-hearing material and submissions in relation to that but nothing was produced. Ultimately, the Tribunal member was not satisfied that DLE16 had any injuries or medical conditions that caused memory loss or which might be relied upon to explain the deficiencies in his evidence. As set out in the facts accepted by the learned primary judge there were several significant factors which undermined DLE16’s credibility before the Tribunal. Decision of the primary judge A number of grounds were advanced to the learned primary judge in the application for review. It is not clear who drew those grounds, however, DLE16 appeared at the hearing before the primary judge for himself and addressed the Court through an interpreter. The learned primary judge considered DLE16’s first complaint that the Tribunal did not believe him. Although he made assertions about what happened at the Tribunal he did not adduce any evidence of the same. Part of his complaint was that the Tribunal did not accept his version of the facts which underpinned his visa application even though it had no contrary information. The primary judge dealt with this observing that the Tribunal was not required to uncritically accept any and all of the claims made by an applicant and it did not have to possess rebutting evidence before concluding that a particular assertion was not made out. Other allegations identified in Ground 1 of the application were bare assertions which were not supported by particulars. At best, such assertions can be taken as mere disagreement with the findings and conclusions of the Tribunal and invites impermissible merits review. Accordingly, the learned primary judge detected no merit in the first ground. DLE16 also asserted he was denied natural justice, however, before the primary judge he said that this was because the Tribunal did not believe him. As the primary judge noted there was nothing on the face of the material before the FCC which suggested that the Tribunal’s review was conducted other than in accordance with the statutory scheme. Consequently, no relevant ground was made out. A further written particular of Ground 2 was that the Tribunal discarded all relevant documents which had been forwarded to it by DLE16. When the applicant was asked to identify which documents were disregarded he was not able to identify any. Again, his complaint in this respect was merely that he was not believed.
Ratio Decidendi
Legal Principle Established
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