DMW16 v Minister for Immigration
[2017] FCCA 1727
•25 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DMW16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1727 |
| 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.5J, 5K, 36, 91R, 91S, 424AA, 424A, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 SZBYR v Minister for Immigration (2007) 235 ALR 609 SZSGA v Minister for Immigration [2013] FCA 774 |
| Applicant: | DMW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3233 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms N Johnson of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
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 3233 of 2016
| DMW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 November 2016. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had made claims of political persecution, as well as persecution arising out of a family land dispute.
Background facts relating to the applicant’s claims and the examination of them by the Minister’s department and the Tribunal are set out in the Minister’s outline of legal submissions filed on 18 September 2017.
The applicant is a citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 28 March 2013.[1] He participated in an entry interview on 11 April 2013[2] and applied for a protection visa on 16 July 2013.[3] The applicant provided a statutory declaration with his application outlining his claims for protection,[4] and attended an interview with the delegate on 2 October 2014.[5]
[1] Court Book (CB) 92
[2] CB 1-15
[3] CB 16-47, 76
[4] CB 48-49
[5] CB 94
The applicant claimed that he would face serious harm from his uncles and Awami League (AL) supporters if he returned to Bangladesh because he was a member of a particular social group, being his father’s immediate family, who were involved in a dispute over the inheritance of land. He also feared harm as a result of his father’s involvement in Jamaat-e-Islami (JI). The applicant claimed the dispute related to land that was originally owned by his grandfather, who left the land to the applicant and his brothers when he passed away. The applicant claimed that if he returned to Bangladesh his uncles would torture him, take produce from the land and force the applicant’s family away from his land.
The applicant also claimed that he had an imputed political opinion in support of JI and/or in opposition to the AL because of his father’s involvement in JI. He claimed that his father was a high ranking member and secretary for JI in his local area, and had listed him and his brothers as future members of JI. The applicant claimed that the police came to their house frequently looking for the applicant, his father or his brothers, and tortured them because his father was involved with JI. He claimed that his uncles, who were involved in the land dispute, were also members of the AL, which enabled them to gain police support against the applicant, his father and his family. The applicant also claimed he would not be provided with effective protection by state authorities if he returned to Bangladesh because of the police’s association with the AL.
The delegate
In a decision dated 28 April 2015, the delegate made a decision to refuse to grant the applicant a protection visa.[6] The delegate accepted the applicant was a “nominal” JI supporter but on the basis of adverse credibility findings did not accept he was politically active with the JI or that he had a political profile that would bring him to the adverse attention of the AL or its supporters if he was to return to Bangladesh.[7] The delegate also rejected the applicant’s claims to have been involved in a land dispute and to have been actively pursued on account of the land dispute.[8]
[6] CB 91-105
[7] CB 97
[8] CB 98
The Tribunal proceedings
On 21 May 2015, the applicant lodged an online application with the Tribunal to review the delegate’s decision and appointed a registered migration agent as his representative.[9] On 20 September 2016, the applicant was invited to a hearing scheduled on 12 October 2016.[10] The applicant accepted the invitation[11] and provided a pre-hearing submission from his representative on 4 October 2016[12]. He attended the hearing on 12 October 2016[13] and provided the Tribunal with a copy of his Australian identity cards.[14]
[9] CB 106-107
[10] CB 112-115
[11] CB 116-118
[12] CB 120-125
[13] CB 126-127
[14] CB 130-131
The decision record[15] indicates the Tribunal put to the applicant at the hearing pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act) oral particulars of information namely, that his evidence at the entry interview that he was not a member of JI was different to the evidence he gave to the delegate and the Tribunal that his father had made him a member of JI.[16]
[15] CB 143 at [54]-[61]
[16] Compare CB 140 at [25]-[29] and CB 142-13 at [51].
As the relevant information was identified inconsistencies in the applicant’s evidence, it is doubtful that such information actually enlivened the Tribunal’s obligations under s.424A. Generally, “information” for s.424A purposes does not extend to identified gaps, defects, lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps.[17] In addition, for “information” to be considered “the reason, or part of the reason, for affirming the decision under review”, it must contain “in its terms” a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations.[18] In any event, the decision record indicates[19] that the Tribunal complied with the mandatory obligations set out in s.424AA(b)(i)-(iv). As such, s.424A(2A) operated to relieve the Tribunal of any s.424A obligations that may have existed in relation to this information.
[17] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]; Minister for Immigration v SZGUR (2011) 241 CLR 594 at [9]
[18] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]
[19] CB 143 at [54]-[57]
The applicant’s representative made a short post-hearing submission on 14 October 2016, confirming that the applicant did not have further evidence to provide.[20]
[20] CB 132
The Tribunal proceedings and decision
On 3 November 2016, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa.[21] On the basis of its assessment of the applicant’s claims and evidence and independent country information, the Tribunal was not satisfied the applicant faced a real chance of harm for the reasons he claimed.
[21] CB 137-154
The Tribunal accepted that the applicant was a citizen of Bangladesh[22] and had lived in the village of Digdana, Jessore until he left Bangladesh in January 2013.[23] It also accepted that the applicant and his family had been living in his paternal grandfather’s house and in 2012 became involved in a dispute with the applicant’s uncles over the possession and ownership of that land.[24] The Tribunal accepted the applicant’s father was involved in the local activities of the JI party but did not accept he had a formal or committee role or was a high profile activist. It accepted the applicant’s evidence to this effect at the entry interview, and found this evidence was inconsistent with his later claims and the applicant had not satisfactorily explained the inconsistency.[25]
[22] CB 139 at [20]
[23] CB 146 at [81]
[24] CB 146 at [84]
[25] CB 147 at [86]
The Tribunal did not accept submissions from the applicant’s representative that undue reliance should not be placed on information given at the entry interview and the applicant provided consistent claims before the delegate and Tribunal.[26] The Tribunal did not accept the evidence at the entry interview could be dismissed and found answers at the entry interview could be significant. The Tribunal noted the applicant’s evidence at the entry interview was that he was not involved in JI and only his father was involved in JI but he did not have a particular role in the group. On this basis and the applicant’s demonstrated insufficient knowledge at the Tribunal hearing of the activities of JI and his own membership, the Tribunal found the applicant’s father was a supporter of JI but did not accept the applicant was a member of JI or an active supporter of the group.[27]
[26] CB 147 at [87]
[27] CB 147 at [88]
The Tribunal had regard to a 2016 DFAT report concerning the current situation in Bangladesh for JI supporters and their families,[28] and also the applicant’s evidence that he did not know the current whereabouts of, or situation for, his father.[29] The Tribunal noted the DFAT report indicated there were no credible reports of relatives and associates of JI members being harassed by the authorities and found that as the applicant had no contact with his father for many years, he would not be perceived to have a strong association with his father or his father’s political opinions. The Tribunal found his father’s low profile in JI did not put the applicant or other family members at risk of harm for that reason alone,[30] and it did not accept that the applicant would be imputed with any JI opinions on the basis of his father’s activities or that he faced a real chance of harm in these circumstances. The Tribunal also found[31]that the applicant would not face harm from government authorities or members of AL for his father’s past support of JI.
[28] CB 147-148 at [89]-[91]
[29] CB 148 at [92]
[30] CB 148-149 at [93]
[31] CB 149 at [94]
The Tribunal found[32] the applicant was not a member of, or activist for, JI or that he was involved in JI activities in the past. In any event, it relied on independent country information that indicated JI supporters were not at risk of harm from the government or AL supporters unless they were high profile activists or participated in anti-government or anti-AL demonstrations and, accordingly, was not satisfied the applicant faced a real chance of harm for this reason if he returned to Bangladesh.
[32] CB 149 at [95]
The Tribunal considered the applicant’s evidence at his entry interview that AL members forced shop keepers to go on strikes and enforced their demands with violence but found the applicant would not face harm from AL activists for this reason as the applicant had never claimed to have ever operated a shop and the whereabouts of his family who ran a grocery shop was unknown.[33] It noted the applicant’s claim at the entry interview that false cases were brought against his father but found he never claimed he was implicated in these cases and did not expand on the claim further.[34] Given the applicant’s accepted profile and lack of past involvement in JI, the Tribunal did not accept he would return to Bangladesh and attempt to join JI or be involved in protests or high level support activities.[35]
[33] CB 149 at [96]
[34] CB 149 at [97]
[35] CB 149 at [98]
The Tribunal accepted that the applicant and his family were involved in a dispute over the ownership and possession of his grandfather’s land but noted the applicant’s evidence that his father, mother and brother had left their village, their whereabouts were unknown and the applicant had no current contact with other family members.[36] The Tribunal found[37] that there was no plausible reason why the applicant’s paternal uncles would take steps to harm him if he returned to his home village now or in the foreseeable future given the applicant’s evidence that he and his family lived in his grandfather’s house after his death in 2009 and the land dispute did not escalate until mid-2012. Further, the applicant was not harmed by his uncles or the police when he lived for six months with his maternal uncle in the same village as his family home. Although the Tribunal accepted the applicant might face pressure from his uncles to desist from making claims about the possession of the land, it found it “unlikely” the applicant would continue the dispute without the support of his family, with whom he had lost contact.[38]
[36] CB 149 at [99]
[37] CB 149 at [100]
[38] CB 150 at [101]
The Tribunal did not accept the applicant would face serious harm from his paternal uncles or the police. Despite his claims that he was tortured by them in the past, the Tribunal noted his evidence that the alleged “torture” comprised being asked to leave the home and being visited frequently by local police. Whilst accepting the family felt pressured, the Tribunal did not accept this constituted serious harm. The question of what constitutes “serious harm” (within the meaning of s.5J(5) of the Migration Act, formerly s.91R(2)) is a question of fact and degree for the Tribunal as sole arbiter of the facts.[39] In any event, as the applicant was able to live in the same village as his uncles from June 2012 to January 2013 without being harmed, the Tribunal did not accept his uncles had demonstrated the propensity or wish to cause him serious harm and did not accept he faced a real chance of serious harm from his paternal uncles if he returned to Bangladesh and therefore found the question of whether he would be afforded effective state protection did not arise.[40] The Tribunal proceeded to consider the applicant’s circumstances and made an alternative finding that even if the applicant did not wish to return his village due to the hostility of his uncles, it was reasonable for him to relocate to another large city in Bangladesh such as Dhaka.[41] For these reasons, the Tribunal was not satisfied the applicant had a well-founded fear of persecution for any Convention related reason.[42]
[39] VBAS v Minister for Immigration [2005] 216 ALR 307 at [26]-[28]
[40] CB 150 at [102]
[41] CB 150 at [103]-[104]
[42] CB 150 at [105]
In considering the applicant’s claims against the complementary protections criterion, the Tribunal relied on its earlier factual findings that the applicant’s father was a supporter of JI but the applicant was not a member of the group or involved in any JI activities, and found the applicant would not face a real risk of suffering significant harm given his father’s involvement in JI.[43] It also referred to its earlier findings that the applicant was not a member, high level activist or person who would be involved in anti-government or anti-AL protests and, given the applicant’s accepted profile, did not accept he faced a real risk of significant harm and did not accept the ICI supported such a claim.[44]
[43] CB151 at [107]
[44] CB 151 at [108]
The Tribunal also referred to its earlier factual findings about the land dispute, including that the applicant had lost contact with his immediate family. It was not satisfied he faced a real risk of harm if he returned to his village or Bangladesh[45] and found he would not face any harassment or threats from AL members.[46] In addition, the Tribunal found there was no credible country information (and it did not accept) that the applicant faced a risk of any of the specified forms of significant harm if he returned to Bangladesh.[47] For these reasons, the Tribunal was not satisfied the applicant met the criterion in s.36(2)(aa) of the Migration Act.[48] There is no jurisdictional error in the Tribunal referring to its previous findings of fact in relation to an applicant’s refugee claims when assessing his claims under the complementary protection provisions.[49]
[45] CB 151 at [109]
[46] CB 151 at [110]
[47] CB 151 at [111]
[48] CB 151 at [112]
[49] SZSGA v Minister for Immigration [2013] FCA 774 at [54]-[56]; MZYXS v Minister for Immigration [2013] FCA 614 at [31]
The present proceedings
These proceedings began with a show cause application filed on 21 November 2016. The matter came before a registrar for procedural directions on 30 March 2017. The applicant was given the opportunity to file and serve an amended application and additional evidence by 18 May 2017. The applicant filed written submissions on 13 July 2017, in which he complains that he did not understand the import of the registrar’s orders, and seeks to augment his grounds of review, as well as to provide what purports to be a transcript of the Tribunal hearing.
I permitted the applicant to rely upon the grounds as set out in his outline of submissions. I declined to receive as evidence the purported transcript for three reasons. The first is that the purported transcript is not verified by the person who made it. The second is that, on its face, and having regard to the length of the Tribunal hearing, the transcript is incomplete. The third is that the applicant told me orally today that he was providing the transcript in order to support an argument of procedural unfairness in relation to questioning of him by the Tribunal in relation to where he was living before he left Bangladesh.
As I explained to the applicant, on that issue, the Tribunal at [39] of its reasons[50] accepted that the applicant may have been confused by the questioning on that issue, and accepted, for the purposes of its decision, that the applicant lived at the family home, wherever that was, until he left and stayed with his maternal uncle in June 2012. He stayed there until he left Bangladesh in January 2013. It follows that the Tribunal did not use against the applicant any inconsistencies in the evidence he gave about where he was living from time to time. The evidence that he ultimately gave to the Tribunal was essentially accepted.
[50] CB 141
In addition to the affidavit filed with the original application, I have before me as evidence the court book filed on 13 April 2017.
I invited oral submissions from the applicant this afternoon. In those submissions, the applicant focused exclusively on his claims for protection and his fear of returning to Bangladesh. As I explained to the applicant, the merits of the Tribunal decision are beyond the scope of this proceeding.
The grounds in the applicant’s submissions are adequately dealt with in the Minister’s submissions. I agree with those submissions.
Ground 1
In Ground 1, the applicant asserts the Tribunal erred by failing to take into account relevant and recent country information about the torture and harassment of JI supporters in Bangladesh by the “Government ruled by the Awami League Party”. The particulars do not identify the country information that the Tribunal failed to consider, but allege the Tribunal “adopted (a) hard attitude in assessing or examining the relevant facts presented by the applicant”. The particulars also refer to the applicant’s statutory declaration dated 28 June 2013 and further information provided at his Protection visa interview on 2 October 2014.
The Tribunal had regard to country information provided by the applicant,[51] which indicated that police corruption was widespread and the police were strongly connected to the AL. It also considered a 2016 DFAT report[52] that indicated JI members were subject to harassment and discrimination. In these circumstances, it is difficult to see how the applicant’s complaint can be supported. It appears he is simply asserting that the Tribunal should have come to a different factual conclusion after considering the country information, which is no more than an attempt to seek impermissible merits review of the Tribunal’s decision, which the Court cannot undertake.[53]
[51] CB 145 at [79]
[52] CB 147-148 at [89]-[91]
[53] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
Ground 2
In Ground 2, the applicant contends he was denied natural justice when the Minister’s Department “completed a formalistic right to hearing (Departmental interview at detention centre)” because the “procedure or conduct and substance (or mental processes) were not followed”. He asserts the absence of “proper procedures” caused the “decision maker’s perceptions of the merits of a case” from being properly ascertained.
The precise nature of the applicant’s complaint in this regard is not clear. If the applicant’s reference to a Departmental interview at the detention centre is intended to refer to the entry interview he participated in on 11 April 2013, it is not explained or apparent how this interview was allegedly conducted improperly or how this established jurisdictional error on the part of the Tribunal. As noted above, the Tribunal expressly considered the applicant’s claims and evidence at his entry interview and the submission of the applicant’s representative about the weight that ought to be attached to that evidence. Whilst it acknowledged the entry interview did not usually afford an applicant the opportunity to give detailed evidence about claims, it found the answers to questions can be significant. It was entitled to rely on the applicant’s answers that he was not involved in JI, only his father, and that his father did not have a particular role with the group.[54] It is a matter solely for the Tribunal to identify such material as it finds relevant to its reasoning and to give that material appropriate weight.[55] If the second complaint is intended to refer to the conduct of the interview before the delegate, it is also not explained how this establishes jurisdictional error by the Tribunal. If the Tribunal’s decision is not flawed it will cure defects and irregularities in the delegate’s decision.[56] Further, the Court has no jurisdiction to review the delegate’s decision.[57]
[54] CB 9 and CB147 at [87]
[55] Tran v Minister for Immigration [2004] FCAFC 297 at [5]
[56] Wu v Minister for Immigration (1994) 48 FCR 294; Yilmaz v Minister for Immigration (2000) 100 FCR 495; Zubair v Minister for Immigration (2004) 139 FCR 344 and Minister for Immigration v Ahmed (2005) 143 FCR 314
[57] Migration Act, s.476(2)(a)
Ground 3
In the third ground, the applicant contends that s.91S of the Migration Act “does not require the applicant’s father’s experience of persecution to be disregarded” because “the reason for persecution of fear of persecution is the Refugees Convention Ground of political opinion”. This allegation seems misconceived and appears to simply repeat the submission made to the Tribunal by the applicant’s representative.[58] Section 91S was repealed and re-inserted as s.5K of the Migration Act although s.91S continued to apply to the applicant. It is intended to provide legislative guidance to decision makers to determine what constitutes a particular social group other than the person’s family.[59] In any event, the Tribunal did not disregard the political associations of the applicant’s father. It accepted that his father was a member of JI[60] but ultimately found, on the basis of country information and the applicant’s evidence, that the applicant would not be imputed with JI political opinions and would not face a real chance of harm “in these circumstances”.[61]
[58] CB 145 at [76]
[59] Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
[60] CB 147 at [88]
[61] CB 148-149 at [93]
Ground 3 also complains that the Tribunal “undermined substantial grounds for believing that” the applicant faced a real risk of significant harm as defined in s.36(2A) of the Migration Act. For the reasons outlined above, the Tribunal identified cogent reasons to support its findings that were open to be made on the available materials. This complaint is, in substance, an attempt to engage in impermissible merits review.
Ground 4
Ground 4 is an entirely new ground from the original judicial review application and variously asserts that: the applicant was denied procedural fairness as the hearing was “not conducted freely or fairly”; the Tribunal did not understand the difficulties and circumstances of “a non-legal person appearing before Court or Tribunal”; the Tribunal “intentionally asked several irrelevant questions to undermine and confuse the applicant during the hearing”; and as a result “mistook or misconstrued the facts”. The only example of irrelevant questioning cited by the applicant in support of his complaints is that the Tribunal asked him “irrelevant questions” about where he lived from the age of 11 years in 1999 until 2013. In circumstances where the applicant’s protection claims centred on a land dispute in his own family, it cannot be said that the Tribunal’s questioning about where the applicant lived and what his family did were irrelevant or immaterial. There are also examples in the purported transcript of the Tribunal inviting the applicant in an open-ended way to give details of what happened[62] and to explain his evidence.[63] There is no evidence (even if the purported transcript had been admitted) to indicate that the hearing was conducted unfairly. A decision-maker’s assessment of an applicant’s credit will often depend upon their demeanour and the manner in which they give evidence.[64] Where credibility is in issue, the Tribunal member will necessarily have to test the evidence presented, often vigorously. Further, the requirements of procedural fairness will often mean that an applicant be plainly confronted with matters which bear adversely on their credit or bring their account into question.[65] The complaints in ground four are baseless.
[62] Transcript, p.5
[63] Transcript, p.6
[64] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [34]
[65] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30]
Ground 5
The fifth grounds asserts the Tribunal “raised unnecessary doubt over the genuineness of asserted fear claimed by the applicant” and “discarded all of the relevant documents forwarded by the applicant”. No particulars are provided to make these assertions meaningful. The Tribunal considered many of the applicant’s documents[66] and it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived.[67]
[66] CB 139 at [13] and [20], CB 140 at [26]-[28] and CB 145 at [73]-[79]
[67] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [46]
There are further assertions in ground five that the Tribunal’s “findings of reasons are confused and test for persecution is not applied according to the rules of the Act”. The Tribunal’s findings flow logically from its reasons and there is no support for the allegation that the Tribunal applied the incorrect tests for assessing the applicant’s claims against the refugee and complementary protection criteria. It correctly cited the relevant law,[68] and its reasons do not indicate that it misapplied or misunderstood the applicable tests.
[68] CB 152-153 at [118]-[130]
Grounds 6, 7, 8
Grounds six to eight inclusive restate the applicant’s factual claims for protection and variously allege that the Tribunal “disregarded all of the relevant Country information” about the treatment of JI members and ignored the current situation in Bangladesh including the pressure applied by the government to the judiciary, the politicisation of the police force, political corruption and victimisation of JI members. These complaints impermissibly seek to invite the Court to review the Tribunal’s factual findings and its assessment of the evidence before it and fail to identify any arguable case of jurisdictional error. In relation to the Tribunal’s consideration and assessment of the country information, it is a matter solely for the Tribunal to identify such material as it finds relevant to its reasoning and to give that material appropriate weight.[69] The applicant’s complaints in these paragraphs otherwise essentially take issue with the Tribunal’s factual conclusions about the applicant’s claims and evidence and invites the Court to undertake impermissible merits review.[70]
[69] Tran v Minister for Immigration ibid.,
[70] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
Ground 9
The final ground variously states the Tribunal: unduly adopted a harsh approach in assessing the applicant’s fear of harm; “did not follow the Rules of real risk Test of Persecution and harm”; failed to take into account all the applicant’s circumstances and fears of harm; and failed to give “real reasons” for not applying the complementary protection criteria. Again, these bare assertions lack any proper basis and fail to identify any real case of jurisdictional error in the Tribunal’s decision and approach.
I conclude that the applicant is unable to demonstrate 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 Rules2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
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.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 3 August 2017
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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