DRM18 v Minister for Immigration

[2019] FCCA 2734

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRM18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2734

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Subclass UC-457 visa – whether the Tribunal failed to consider whether the applicant had a well-founded fear of persecution – whether the Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant was not a credible witness – whether the Tribunal failed to consider the evidence put forward by the applicant – whether the Tribunal erred in rejecting the evidence – whether the Tribunal approached the matter with a preoccupied attitude – whether the Tribunal made a jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.438

Cases cited:

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 10

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 668

Applicant: DRM18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2030 of 2018

Judgment of: Judge Humphreys

Hearing date: 25 September 2019

Date of Last Submission: 25 September 2019

Delivered at: Parramatta

Delivered on: 25 September 2019

REPRESENTATION

Applicant appeared in person.

Solicitors for the Respondents: Mr Valliappan, DLA Piper

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The Application to pay the First Respondent’s costs fixed in the amount of $6,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2030 of 2018

DRM18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is a citizen of Bangladesh. The applicant first arrived in Australia on 31 December 2007 on a subclass UC-457 visa. The applicant departed and re-entered Australia in 2010. The applicant applied for an associated UC-457 visa for his dependents, but his employer sponsor withdrew support. In 2011, the applicant made applications under the Employer Nomination Scheme which were ultimately refused. The applicant departed Australia in September 2013 and re-entered a month later. The applicant appealed the decision of the then Migration Review Tribunal to review the Employer Nomination Scheme’s refusal. The Migration Review Tribunal affirmed the decision to refuse the visa. The applicant then unsuccessfully appealed to the Federal Court, Full Federal Court and the High Court.

2. The applicant also made an application for Ministerial Intervention. Before the Ministerial Intervention was concluded, the applicant lodged a XA-866 Protection visa application on 7 May 2015. On 14 December 2015, a delegate of the Minister for Immigration (“the Minister”) refused the application for a protection visa. The applicant then sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 3 July 2018, the Tribunal affirmed the Minister’s decision to refuse the XA-866 Protection visa application. The applicant now seeks judicial review in this Court.

The Administrative Appeals Tribunal’s decision

1. After setting out the relevant migration history, paragraphs 4 to 9 of the Tribunal’s decision set out the relevant legislation and mandatory policy considerations under Ministerial Direction 56. Paragraph 10 of the Tribunal’s decision deals with a non-disclosure certificate on public interest grounds. The Tribunal consider the certificate to be invalid. The Tribunal determined the material would not assist it and determined it would not be relied upon.

2. Paragraphs 13 to 29 of the Tribunal’s decision deal with the applicant’s claims and may be summarised as follows:

   ·The applicant fears persecution in Bangladesh due to his father’s involvement in local politics.

   ·The applicant claims that in 1996 his father was falsely jailed and their house was attacked by Awami League workers.

   ·In December 1998, the applicant claims he was kidnapped by Awami League cadres and ill-treated.

   ·The applicant was only released after his father paid a huge ransom. He claims in February 1999 he was attacked and beaten by Awami League and was hospitalised for seven days.

   ·The Bangladeshi National Party (“BNP”), his father’s party, won an election in 2000, but then lost power in 2007.

   ·The Awami League formed government and since then, have done their best to wipe out opposition parties, especially the BNP.

   ·The applicant claims that before he applied for the XA-866 Protection visa, his father told him that Awami League attacked their house, beat his father and burnt their house.

3. Paragraph 30 of the Tribunal’s decision, deals with an issue as to the identification of the applicant. The Tribunal was prepared to accept, for the purposes of their decision, but with considerable doubts, that the applicant is who he says he is and is a Bangladeshi national.

4. Paragraphs 37 to 40 of the Tribunal’s decision deal with the serious claims the applicant has made about being attacked on a number of occasions. Paragraph 38 of the Tribunal’s decision deal with the applicant returning to Bangladesh in 2010 and 2013. Despite alleged continual attacks on his father and brother, nothing happened when he went back. It was put to the applicant that if he genuinely faced fear returning to Bangladesh, why would he wait eight years before putting in protection claims. In the Tribunal’s decision, it records that the applicant declined to comment on these concerns. The Tribunal at paragraph 43 of its decision, determined to place no weight upon photographs produced by the applicant of a man who he claimed to be his brother with an abdominal scar, a person bandaged and a picture of an abdominal scar.

5. At paragraphs 45 to 46 of its decision, the Tribunal found that it was not satisfied that the applicant’s claims were credible and the timing of the protection visa suggests it was fabricated in a bid to remain in Australia after the applicant had exhausted all other avenues of obtaining permanent residency.

Grounds of Appeal

1. In an application to this Court, lodged on 23 July 2018, one ground of appeal was relied upon, this being:

   1.  Department of Home Affairs made jurisdictional errors.

The Applicant’s Submissions

1. The applicant appeared before the Court unrepresented but aided by an interpreter. Written submissions in support of the application were filed on 9 September 2019. The applicant told the Court in his oral submissions that the documents he gave to the Tribunal were genuine, that his brother was attacked and that the Tribunal did not give him sufficient time to get his brother’s birth certificate. The applicant said the Tribunal should prove that the documents are false. The applicant said that he would not be safe if he returned to Bangladesh and that the government was persecuting people involved with the BNP.

2. The particulars that were given were in relation to the original application and orders were made that any amended application should be filed 21 August 2019. However, the applicant’s submissions, filed on 9 September 2019, put forward no less than six allegations of jurisdictional error, each of which might be fairly regarded as being a separate ground of appeal. If the applicant was represented, I would have considered refusing leave to rely upon these new grounds, as best I can understand them. However, because the applicant is unrepresented, it is appropriate that I deal with them in order to ensure that it can be said that the applicant has had a fair hearing.

3. As I best understand, the new grounds of appeal are as follows:

   (1) The Tribunal failed to consider whether the applicant had a well-founded fear of persecution. The Tribunal had no jurisdiction to make a decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Migration Act 1958 (Cth).

   (2) The Tribunal denied the applicant procedural fairness by reaching conclusions that he was not a credible witness and his claims were implausible.

4. It was submitted that the Tribunal was too heavily influenced by Department of Foreign Affairs and Trade (“DFAT”) reports. It was also submitted that the Tribunal should not have ignored the letter from the BNP dated 10 November 2015, on the basis that document fraud in Bangladesh was common:

   (3) The Tribunal failed to consider the evidence put forward by the applicant as credible and discredited the evidence only because of the applicant’s inability to remember or recall various issues.

   (4) The Tribunal erred in rejecting the evidence contained in the photographs

   (5) The Tribunal should have given the applicant the opportunity to get his brother’s birth certificate.

   (6) The Tribunal approached the matter with a preoccupied attitude.

The First Respondent’s Submissions

1. The First Respondent provided written submissions which the Court has considered.

Consideration

Ground 1

1. In my view, this ground makes little sense. The findings of the Tribunal, as to the applicant not having a well-founded fear of persecution, was open to the Tribunal, based on the evidence that was before it. I concur with the first respondent that this ground merely seeks to disagree with the outcome arrived at by the Tribunal. No jurisdictional error is apparent.

Grounds 2 and 3

1. These grounds assert a denial of procedural fairness by reaching a conclusion that the applicant was not a credible witness and/or the evidence put forward was not credible. In my view, these are merely arguments in which the applicant disagrees with the outcome. There was no material evident from the face of the record or the Court Book, to indicate that the Tribunal did not comply with the relevant statutory framework.

2. The applicant was invited to a hearing with the Tribunal to give evidence and present argument. Matters of concern were put to him. The Tribunal considered his claims and his evidence but rejected them based on a cumulative assessment of his credibility based upon his time in Australia, his return trips to Bangladesh (being his home country, without incident) and the fact that a protection application was made only after all other options of permanent residency in Australia were exhausted. I am not satisfied that there is any legal unreasonableness in the findings of the Tribunal in relation to any of the factual matters it considered. The findings were open to it. There is nothing illogical, irrational or unreasonable in the factual findings.

Ground 4

1. This concerns the rejection of the photographs and letter provided by the applicant. The rejection of these documents was a matter for the Tribunal and it was an option that was open to it. Without more, the Tribunal had no way of knowing who was contained within the photographs or how the injuries were sustained. Weight to be attributed to evidence is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). I am satisfied that the Tribunal was entitled to take into account country information as to document fraud when considering the weight to be attached to evidence.

Ground 5

1. This ground asserts a denial of procedural fairness by refusing to grant the applicant more time to obtain his brother’s birth certificate. The Minister contends this cannot be sustained on a factual basis. The applicant was provided with additional time after the hearing to provide further documentation and did not ask for additional time. The Minister suggests that the allegation cannot be made out. I agree with that submission. There is no jurisdictional error in this regard.

Ground 6

1. The final ground of appeal was that the Tribunal approached the matter with a “preoccupied attitude”. Bias is a serious allegation that must be proved with evidence. There is nothing in the decision, nor has any evidence been provided, that would suggest that the Tribunal did not approach the matter with anything other than a mind open to persuasion (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 paragraph [38] per von Doussa J). An adverse decision is not evidence of bias.

2. I am not satisfied based on the material that has been provided to me that any jurisdictional error has been made out in relation to any of the grounds either contained in the original application or in the applicant’s written submissions.

3. In relation to the s 438(1)(a) certificate of the Migration Act 1958 (Cth), it was submitted to the Court that the material was admissible, should be open to the Tribunal, considered and disregarded. The Tribunal found the certificate invalid. I am not satisfied that there was jurisdictional error as the Tribunal found the certificate was invalid, considered the evidence and rejected it (see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3).

4. I have followed the procedure advocated by the first respondent, inspected the documents, and find that the conclusion of the Tribunal was correct. The document was irrelevant to their consideration. No jurisdictional error can arise as a result of a procedure adopted by the Tribunal. They found the certificate was invalid and rejected the document and it formed no part of their consideration.

Conclusion

1. Based on the grounds put forward, I am satisfied that there has been no jurisdictional error. As the applicant is unrepresented, I have carefully considered the decision and supporting documentation and I am satisfied that there is no jurisdictional error based on any other issue that has not been articulated.

2. Accordingly, I dismiss the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 24 October 2019