DQA16 v Minister for Immigration

[2017] FCCA 1849

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQA16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1849

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) – there were no irrelevant considerations taken into account by the Tribunal – it was a matter for the Tribunal to take into account what weight to give the applicant’s evidence – no arguable jurisdictional error identified – application for an extension of time under s.477 of the Migration Act is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 423A, 476, 477

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: DQA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3349 of 2016

Judgment of: Judge Street

Hearing date: 7 August 2017

Date of Last Submission: 7 August 2017

Delivered at: Sydney

Delivered on: 7 August 2017

REPRESENTATION

Solicitors for the Applicant: Mr H Ford
High Ford Solicitor

Solicitors for the Respondents: Mr T Galvin
MinterEllison

ORDERS

1. The application for an extension of time under s.477 of the Migration Act1958 (Cth) is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3349 of 2016

DQA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 September 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be citizen of Zimbabwe and his claims were assessed against that country.

3. The applicant claimed to fear harm from the ZANU-PF authorities and associated groups in Zimbabwe, including as arising from the authorities’ views of the applicant’s political opinions (pro-MDC, anti-ZANU-PF) and a lack of ability to obtain employment. 

4. The applicant arrived in Australia as the holder of a Student (Temporary) (Class TU) visa on 5 February 2011. The applicant applied for a protection visa on 9 April 2014. On 3 November 2014 the delegate refused to grant the applicant a protection visa, and found the applicant failed to meet the criteria under the Migration Act.

The Tribunal’s decision

1. The applicant filed an application for review on 27 November 2014. By letter dated 4 August 2016, the applicant was invited to attend a hearing on 8 September 2016. The letter dated 4 August 2016 stated:

   We have considered the material before us but we are unable to make a favourable decision on this information alone.

2. The letter identified the significance of failing to attend and provided a response for hearing invitation as well as inviting the applicant to bring any original document to the hearing the applicant wish to submit as evidence. Both the applicant and his migration agent attended the hearing on 8 September 2016. 

3. Unfortunately, as recorded by the Tribunal on the hearing date, during the course of the hearing, the applicant and his migration agent chose to walk out of the hearing.

4. The Tribunal correctly identified the relevant law and set out the applicant’s background. The Tribunal set out the applicant’s claims and evidence. 

At the hearing

1. The Tribunal summarised what had occurred at the hearing on 8 September 2016. The Tribunal identified that the applicant asserted that he had a brother who was a police officer, and ZANU-PF member in the course of his evidence.

2. The Tribunal noted that on a significant number of occasions the applicant refused to answer questions by the Tribunal and left the Tribunal hearing room during the Tribunal’s questioning before the hearing was completed. 

3. The Tribunal noted that during the hearing, the Tribunal sought to ask the applicant questions about his siblings and that the applicant refused to answer questions on the grounds of relevance. 

4. The Tribunal noted that the agent continued to interrupt and speak over the top of the Tribunal, telling the Tribunal to “move on” and that the migration representative refused to stop interrupting despite the Tribunal reminding the representative that he would have the chance to make submissions at the end of the hearing. 

5. The Tribunal explained that an opportunity would be given to give evidence and present arguments and despite this, the applicant continued to refuse to answer the Tribunals’ questions and failed to take advantage of the opportunity to give evidence and present arguments.

Adjournment requests

1. The Tribunal noted during the hearing there was a request for a number of adjournments which the Tribunal did not consider appropriate during the course of the hearing. In particular, the Tribunal wished to put to the applicant that he had not mentioned in his protection visa the claim that he had clashes with his family members who were ZANU-PF, and it was at this stage that the agent interrupted and did not allow the applicant to answer the question until he could discuss the applicant’s evidence with him during an adjournment.

2. The Tribunal had provided a number of adjournments during the course of the hearing already. The Tribunal, appreciating that the applicant was refusing to answer, provided a further short adjournment for the applicant and migration agent to discuss the matter.

3. After the adjournment, the Tribunal asked the applicant about clashes with the family members and the applicant repeatedly responded that this was a “mistake” and not a new claim.  As the Tribunal was trying to ascertain whether or not the applicant’s ZANU-PF family members had clashed with him in Zimbabwe, the applicant and the agent left the hearing. 

4. The Tribunal found that the applicant had been provided with an opportunity to give evidence and present arguments at the hearing and that it was the applicant’s own decision to leave the hearing, albeit it he may have acted on his agent’s advice. 

5. It was in those circumstances the Tribunal decided to proceed to make a decision without providing a further hearing opportunity. This was a reasonable decision for the Tribunal to make and cannot be said to lack an evident and intelligible justification. Further, on the face of the material before the Court, the Tribunal provided the applicant with a real and meaningful opportunity to give evidence and present arguments.

Recusal request

1. The Tribunal noted that during the hearing there was a request for recusal. In that regard, the agent identified in the covering letter sent on 4 August 2016 inviting the applicant to attend a hearing, that the inability of the Tribunal to make a favourable decision on the material alone was the alleged ground for bias.

2. That was not a proper basis for an allegation of bias. Bias is a serious allegation that must be clearly alleged and properly proved. The Tribunal was correct to reject that application. The letter sent on 4 August 2016 is not conduct by reason of which a fair-minded lay observer might reasonable apprehend that the Tribunal might not bring an independent and partial mind to the determination of the matter on its merits. 

3. The further ground advanced by the agent for the Tribunal to recuse itself, was the alleged asking of irrelevant questions about the applicant’s mother and siblings. The issue concerning the applicant’s mother and siblings was clearly relevant to the application being considered by the Tribunal and it was not a matter upon which objection and interruption by the agent should have occurred, nor should the applicant have refused to answer the Tribunal’s questions on this topic.

4. The asking of those questions by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The Tribunal was correct to not recuse itself in that regard.

Consideration of the applicant’s claims and the Tribunal’s concerns

1. The Tribunal was concerned that the applicant’s refusal to give evidence to the Tribunal may have occurred because he believed his evidence would not support his claims or be consistent with the evidence that he had previously given.

2. The Tribunal made adverse findings in relation to the applicant’s claims, noting the inconsistencies that the applicant had not explained.

3. The Tribunal did not accept that the applicant faced a real chance of serious harm or a real risk of significant harm having regard to the economy or employment situation. 

4. The Tribunal rejected all the claims made by the applicant and found he does not have a well-founded fear of Convention-related persecution for any of the reasons put forward by him, or on his behalf.

5. The Tribunal found, having considered the claims individually and cumulatively, that it was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal found that the applicant does not meet the criteria under s.36(2)(a) of the Migration Act.

Consideration of complementary protection criteria

1. The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk the applicant will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act. The Tribunal found that the applicant failed to meet the criteria under s.36(2)(aa) of the Migration Act and affirmed the decision under review.

Before this Court

1. The grounds of the application are as follows:-

   1. The member Tribunal took irrelevant consideration into account when she relied upon the inconsistencies in the answers of the applicant to the questions which were totally irrelevant to the claim of the applicant.

   2. The member tribunal clearly indicated to the applicant even before the hearing started that she was not satisfied that the applicant faced a real chance of serious harm or real risk of significant harm. This approach of the member Tribunal shows the element of bias against the applicant and suffers from procedural unfairness.

   3. The Tribunal took irrelevant considerations into account when it considered and relied upon the inability of the applicant to answer the questions as to the fate of his other colleagues who were also members of MDC.

   4. The Tribunal gave undue weight to the inconsistency between his evidence as to place of residence vis-a-vis places recorded in MDC membership cards in rejecting his claim that he was the member of MDC.

   5. The Tribunal erred in not giving any weight to the applicant's MDC membership cards.

   6. In an attempt to assess the credibility of the claim of the applicant, the member Tribunal misdirected herself by asking the applicant irrelevant questions as to the dates of birth of his five brothers and three sisters, their occupations and places of residence.

   7. The member Tribunal took irrelevant consideration into account by declining the review application for the reason, inter alia, that the Applicant could not answer the questions as to the dates of births, occupation and places of residence of his brothers and sisters.

   8. The member Tribunal failed to give any weight to the consistent evidence of the applicant that he was member of MDC and was open to serious risk of harm at the hands of the ruling party.

Consideration

Ground 1

1. In relation to ground 1, it was a relevant matter for the Tribunal to seek to explore the applicant’s evidence in relation to his relatives, given the nature of the applicant’s claims. There was no irrelevant consideration identified that the Tribunal took into account, and it was a proper course for the Tribunal to test the applicant’s credibility and credit.  No arguable jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the invitation for the applicant to attend and the identification that the Tribunal could not make a favourable decision, on that material alone, for the reasons already given, is not material that supports any allegation of bias. That allegation should not have been advanced from the bar table.

2. The solicitor for the applicant identified for the Court that during the course of the hearing, a concern arose in relation to s.423A of the Migration Act. That concern does not explain the conduct that occurred in front of the Tribunal and does not provide a proper basis for the interference that appears to have occurred during the course of the hearing before the Tribunal, nor does that concern properly explain the departure from the hearing that intentionally took place by the applicant and the representative. No arguable jurisdictional error is made out by ground 2

Ground 3

1. In relation to ground 3, it was a proper matter for the Tribunal to take into account the matters that it was unable to explore in respect of the applicant’s evidence and inconsistencies. No arguable jurisdictional error was made out by ground 3.

Ground 4

1. In relation to ground 4, it was a matter for the Tribunal to determine whether to accept the applicant’s evidence in relation to alleged MDC membership.  No arguable jurisdictional error is made out by ground 4.

Ground 5

1. In relation to ground 5, it was a matter for the Tribunal to determine what weight to give to the applicant’s evidence. No arguable jurisdictional error is made out by ground 5.

Ground 6

1. In relation to ground 6, for the reasons already given, it was a relevant matter for the Tribunal to explore with the applicant details in relation to the applicant’s siblings. They were not irrelevant to the applicant’s credit or to the claims made. No arguable jurisdictional error is made out by ground 6.

Ground 7

1. In relation to ground 7, there is no irrelevant consideration that was taken into account. Ground 7 fails to identify any arguable jurisdictional error.

Ground 8

1. In relation to ground 8, it was a matter for the Tribunal to determine what weight to give the applicant’s evidence. The Tribunal correctly identified the relevant law. On the face of the material before the Court, the Tribunal complied with its statutory obligations. The applicant had a genuine opportunity to present the applicant’s case and deliberately decided, during the course of the hearing, to leave the hearing.

2. For the reason already given, it was reasonable in the circumstances, for the Tribunal to proceed to make its decision. No arguable jurisdictional error is made out by ground 8. The application fails to make out any arguable jurisdictional error. 

Extension of time application

1. In the present case, in respect of the extension of time, the solicitor for the first respondent submitted that the applicant was in fact informed of the need to file the application within the relevant time.

2. Whilst the submission was advanced the applicant had personal reasons and health reasons for the delay, there is no evidence that provides a satisfactory explanation for the delay.

3. In the present case, however, it is the merits that are the more significant issue. I have taken into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118. The application fails to identify any arguable case of jurisdictional error. I am not satisfied that the merits of the application warrant an extension of time in the interests of the administration of justice.

4. I am not satisfied, in the circumstances of the present case, given the lack of sufficient merits, that this is a matter in which it is necessary, in the interests of the administration of justice, to make an order under s.477 of the Migration Act. The application for an extension of time under s.477 of the Migration Act is dismissed.

Costs in excess of the scale amount

1. In this case, the first respondent seeks costs in excess of the scale amount for an interlocutory application. I am satisfied, as a matter of discretion that this is an appropriate matter to increase the costs that would ordinarily be ordered.

2. There were eight grounds identified in the application, none of them had any merit, and the Minister was required to take further steps as a result of the process that had been adopted in the review. I am satisfied that the first respondent has incurred costs in excess of the scale amount because of the breadth of grounds in the applicant’s application. The circumstances of the present the case are ones in which it is appropriate to increase the amount of costs to be ordered notwithstanding the submissions of the solicitor on behalf of the applicant that it was only the scale amount that should be ordered.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  6 September 2017