DPH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 902
•4 August 2022
FEDERAL COURT OF AUSTRALIA
DPH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 902
Appeal from: DPH16 v Minister for Immigration & Anor [2019] FCCA 3581 File number: NSD 2066 of 2019 Judgment of: JAGOT J Date of judgment: 4 August 2022 Catchwords: MIGRATION — appellant claims that Administrative Appeals Tribunal erred by rejecting evidence on protection claims and finding appellant fabricated evidence — Tribunal’s findings based on careful consideration and testing of concerns with appellant — no obligation on Tribunal to disprove appellant’s claims — appeal dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5J(6), 45AA, 93R
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) s 2, sch 5 cl 12
Migration Regulations 1994 (Cth) reg 2.08F
Cases cited: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 19 Date of hearing: 28 July 2022 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms C Saunders of MinterEllison Counsel for the Second respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 2066 of 2019 BETWEEN: DPH16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JAGOT J
DATE OF ORDER:
4 AUGUST 2022
THE COURT ORDERS THAT:
1.The first respondent’s name be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
These reasons for judgment concern an appeal against orders made by the Federal Circuit Court of Australia on 10 December 2019 dismissing the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal: DPH16 v Minister for Immigration & Anor [2019] FCCA 3581. On 1 November 2016, the Tribunal had set aside the decision of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the appellant a protection visa and substituted a decision to again refuse the appellant’s visa.
By his notice of appeal dated 12 December 2019, the appellant contends that:
The court below made a jurisdictional error when it failed to take into account relevant considerations and took into account irrelevant considerations.
Particulars: Subparagraph of 65 (1) (a) (ii) of the Migration Act 1958 requires the decision maker in respect of the applicant’s primary application for a protection visa to make determination as to whether criteria for the grant of the visa prescribed by the Act or the Regulations made there under were satisfied. The Tribunal failed to assess the relevant material presented on logically probative and relevant materials.
For the reasons given below, the appellant has not established any jurisdictional error by the Tribunal or error by the primary judge in dismissing his application for judicial review of the Tribunal’s decision, and his notice of appeal must be dismissed.
Background
The appellant arrived in Australia (from Bangladesh, via Indonesia) on 6 May 2013 as an unauthorised maritime arrival and applied for a protection (Class XA) visa on 2 August 2013. The appellant’s claim for protection arises from his and his family’s support of the Jamaat-e-Islamiya group (JI) which is associated with the Bangladesh National Party.
The appellant claimed that his father was an active supporter of the JI, and that following his father’s death, the Awami League (which I infer to be a rival political group) carried out retributive attacks on his father’s store and attempted to extort the appellant for money which resulted in him being badly beaten. Since fleeing to Australia, the appellant says that he re-engaged politically and attended rallies in support of the JI as well as supporting them publicly on social media. As a result of this renewed support, he fears persecution from the Awami League if he is forced to return to Bangladesh.
On 18 May 2015, a delegate of the Minister refused the appellant’s application for a protection visa.
The appellant sought review of the delegate’s decision on 10 June 2015, which was heard by the Tribunal on 11 October 2016. At that hearing, the Tribunal took the appellant’s application to be for a Temporary Protection (Class XD) (Subclass 785) visa, by operation of s 45AA of the Migration Act 1958 (Cth) and reg 2.08F of the Migration Regulations 1994 (Cth).
As noted, on 1 November 2016, the Tribunal set aside the delegate’s decision to refuse to grant the appellant a Class XA visa, and substituted a decision to refuse to grant the appellant a Class XD visa. The Tribunal rejected the appellant’s protection claims, finding that his evidence regarding the extent of his political involvement with the JI was not credible ([65]–[66]) and supported by fabricated documents ([72]), his claims of injuries from an alleged attack by the Awami League were inconsistent and implausible ([69]–[72]), and that his more recent political involvement in Australia (both in person and online) was limited ([76]–[77]), but also motivated by a desire to improve his protection claim ([75]). The Tribunal also rejected the appellant’s claim that the Awami League had harassed his mother in Bangladesh following his online activity in Australia in support of the JI ([72]).
Appellant’s submissions
In support of his notice of appeal, the appellant repeated his claims for protection (as summarised above) and in his written submissions particularised the following errors by the Tribunal said to involve its taking account of irrelevant considerations:
5.I support of my claim, I say that in assessing my application for protection the AAT failed to assess without taking consideration into my substantive claim that were raised by me before the tribunal in relation my facebook posts and the tribunal rejected my claims without giving me an opportunity to explain my position.
6.The AAT concluded by accepting that I have posted those article on my facebook and fabricated a claim that my mother back home was not harassed for that. This conclusion is based on assumption and without proper reasoning.
7.It is for the same reason the honourable Court below has erred in making determination.
In oral submissions to the Court, the appellant stated that the Tribunal’s decision was not justified, and that while both the delegate and the Tribunal stated that they did not believe his claims, no one had provided any proof that he was not telling the truth. He said that he would not have fled Bangladesh if he had not experienced problems there, and that he had not seen his children for almost 10 years. The appellant told the Court that although he came to Australia as a young man, he has now grown old in Australia and feels he has not received justice in the continued refusal of his visa.
Consideration
In his written submissions as extracted above, the appellant has raised new grounds of appeal against the Tribunal’s decision in this Court which were not before the primary judge, and requires leave to do so. The Minister opposes any grant of leave, and notes that it should only be granted where it is expedient in the interests of justice to do so, where the proposed grounds have merit, and there is no real prejudice to the respondent, in accordance with VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]–[48].
As was accepted, the Minister suffers no prejudice if leave is granted. Given that the determination of leave requires me to consider the merits of the proposed new grounds, I will determine the question of leave and the substantive appeal concurrently.
The appellant’s broad claims of error cannot be accepted.
Contrary to particular 5 in the appellant’s written submissions, the Tribunal’s decision discloses that it properly considered the appellant’s submissions with respect to his social media advocacy for the JI. It is apparent from the Tribunal’s reasons that it actively engaged in exchanges with the appellant on his political activities and tested his evidence, see, eg, at [53] and [55] of the Tribunal’s reasons:
Referring to his Facebook activity the applicant was asked how long he has had an account and he replied it has been three or four years. The Tribunal asked why his Facebook posts about political issues only commenced in May 2016. He stated that in fact he started making these type of posts roughly about two years ago. The Tribunal asked the applicant to reveal those posts from two years ago and after a discussion with his representative he changed his evidence and said that he didn’t formerly post articles, rather he “liked” the posts of other people and this history of activity is not able to be proven.
…
The Tribunal indicated that the timing of his online and protest activities in Australia might suggest his recent political activity has been for this reason. The applicant replied that what he has done has been for the party. He said when he was interviewed before he was not making political posts but when he moved to Sydney it was around the time that [a leader of the JI] was hanged and that really shocked him. He said if he wanted to get involved in activities to strengthen his claims he could have done that while he was in Rockhampton. The applicant’s representative added that his Facebook activity commenced when he reconnected with the Muslim community in Sydney which sparked his interest in political discourse again.
It is clear that the Tribunal had regard to the appellant’s claims regarding his social media engagement and political advocacy and gave him an opportunity to respond to its concerns regarding the veracity of such evidence. The Tribunal concluded at [76] that:
On the evidence before it the Tribunal does not accept the applicant has a long history of sharing or liking political posts on Facebook. The Tribunal accepts that since May 2016 the applicant has shared some news reports about JI’s participation in the political process in Bangladesh including reports about the execution of JI leaders. However, as noted at hearing the applicant has made no personal comments or statements about these posts and the Tribunal is of the view the posts have been made for the sole purpose of strengthening his claims for protection. For this reason and pursuant to s.91 (R)(3) [sic] of the Act the Tribunal has disregarded this activity for the purposes of assessing his claims against the refugee criterion.
The reference to s 91R(3) of the Migration Act 1958 (Cth) is in error, but the error is immaterial. Section 91R was repealed by cl 12 in Sch 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 amending Act). Section 91R(3) was replaced by s 5J(6) which provided that in determining whether a person has a well‑founded fear of persecution “any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee”. Section 5J(6) applied from 18 April 2015 under item 14 of s 2 to the 2014 amending Act. The Tribunal’s error in referring to s 91R(3) is immaterial because under the correct provision, s 5J(6), the Tribunal was required to adopt the same approach.
In answer to particular 6, the Tribunal’s rejection of the appellant’s claim that his mother had been harassed as a result of his Facebook activity was open for the reasons it gave. Specifically, after carefully considering various deficiencies and inconsistencies in the appellant’s evidence (see at [65]–[72]) regarding his political involvement with the JI and its findings regarding the unlikelihood of reprisals, the Tribunal was unable to accept that the appellant’s mother had been harassed in Bangladesh as a result of his online activity (at [72]). This was supported by the Tribunal’s ultimate finding (at [80]) that the appellant was not a witness of truth. All of these findings were reasonably open to the Tribunal.
While the appellant may disagree with this conclusion, and has observed that no one has disproven his claims, this is not sufficient to establish jurisdictional error. As noted by the Minister in oral submissions and by the primary judge at first instance (at [51]), there was no obligation on the Tribunal to verify the appellant’s evidence or to investigate and disprove the truth of his allegations. It was for the appellant to persuade the Tribunal as to the truth of his claims.
For these reasons while I would grant the appellant leave to raise the new grounds (given the lack of any resulting prejudice to the Minister) I would also dismiss the appeal with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot. Associate:
Dated: 4 August 2022
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