DRM18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 101
•6 February 2020
FEDERAL COURT OF AUSTRALIA
DRM18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 101
Appeal from: DRM18 v Minister for Immigration [2019] FCCA 2734 File number: NSD 1606 of 2019 Judge: LEE J Date of judgment: 6 February 2020 Catchwords: MIGRATION – appeal from Federal Circuit Court – unparticularised ground of appeal asserting jurisdictional error – re-agitation of the issues below as though this were a hearing de novo of the case advanced before the primary judge – no error demonstrated – appeal dismissed Legislation: Migration Act 1958 (Cth) Cases cited: DRM18 v Minister for Immigration [2019] FCCA 2734 Date of hearing: 6 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Appellant: The Appellant appeared in person. Solicitor for the First Respondent: Mr L Leerdam of DLA Piper Australia Solicitor for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1606 of 2019 BETWEEN: DRM18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LEE J
DATE OF ORDER:
6 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the Transcript)LEE J:
A INTRODUCTION AND BACKGROUND
The background to this matter starts in December 2007 when the appellant arrived in Australia on a Temporary Work (Skilled) (subclass 457) visa. The appellant then departed and re-entered Australia in 2010 and applied for an associated visa for his dependents, but his employer-sponsor withdrew support. In 2011, the appellant made applications under the Employer Nomination Scheme which were ultimately refused. The appellant then departed Australia in September 2013 and returned to Bangladesh for a period of one month, at the expiry of which he returned to Australia.
The appellant then unsuccessfully appealed the decision to refuse his applications under the Employer Nomination Scheme to what was then called the Migration Review Tribunal. The appellant then made a series of further unsuccessful attempts to challenge that decision both at first instance, and on appeal in this Court and then by way of an unsuccessful application for special leave to appeal to the High Court of Australia. Not daunted, the appellant then made an application for ministerial intervention, but before the ministerial intervention process was concluded, in May 2015 (after being in Australia for seven and a half years) and returning to Bangladesh on two occasions in the interim, he made an application for a protection visa.
In December 2015, a delegate of the first respondent (Minister) refused the application for a protection visa. Merits review was then sought in the Administrative Appeals Tribunal (Tribunal), and in July 2018 the Tribunal affirmed the Minister’s decision to refuse the application. An application was then made for relief in the Federal Circuit Court which was heard and determined in September 2019 with the primary judge dismissing the application for judicial review.
It is unnecessary for me to deal with the nature of the appellant’s claims before the Tribunal as they are set out in some detail in the decision of the primary judge: DRM18 v Minister for Immigration [2019] FCCA 2734 at [4]. Ultimately, the Tribunal found that it was not satisfied that the appellant’s claims were credible and the timing of the protection visa suggested it was fabricated in a bid to remain in Australia after the appellant had exhausted all other avenues of obtaining permanent residency.
B BEFORE THE FEDERAL CIRCUIT COURT
Before the primary judge the appellant relied on one ground which was as follows:
1. Department of Home Affairs made jurisdictional errors.
Despite this, some content was given to the nature of the errors alleged and the primary judge identified these at [11]-[12] 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.
(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.
In relation to each of these issues, the primary judge dealt with them as follows:
Issue 1
After noting the ground made little sense, the primary judge, correctly in my view, identified that the argument was an attempt to simply join issue with the outcome before the Tribunal: at [14]. It is clear that the Tribunal did consider whether the appellant had a well-founded fear of persecution, and the suggestion that it had “no jurisdiction” because its decision had not been made in accordance with the provisions of the Migration Act 1958 (Cth) has no merit.
Issues 2 and 3
The primary judge dealt with these issues together and noted that the grounds asserted a denial of procedural fairness on the basis the appellant was not a credible witness and that documents put forward were not credible. The primary judge again reached the conclusion that the arguments advanced before him amounted to no more than a disagreement with the outcome before the Tribunal and there was no material which demonstrated that the Tribunal did not discharge its statutory function according to law: at [15]-[16]. The primary judge noted that the appellant was invited to a hearing before the Tribunal and matters of concern were put to him. The Tribunal considered his claims but rejected them following a logically expressed analysis which was not characterised by any identifiable error.
Issue 4
This issue concerned the rejection of photographs and letters put before the Tribunal by the appellant. The primary judge considered that the weight to be attributed to that evidence was a matter for the Tribunal and the Tribunal, without more, had no way of knowing who was in the photographs or how the injuries visible in the photographs were sustained: at [17]. These findings demonstrate no error.
Issue 5
This was an assertion of a denial of procedural fairness by refusing to grant the appellant more time to obtain his brother’s birth certificate. In this regard, the primary judge accepted the submissions made on behalf of the Minister that the appellant was, in fact, given time after the Tribunal hearing to obtain the birth certificate, and did not ask for additional time. The primary judge, unsurprisingly, concluded that the allegation had not been made out: at [18].
Issue 6
This was an unparticularised allegation which suggested that the Tribunal member approached the matter with a “preoccupied attitude”. Given the way that it was put, his Honour characterised this as an allegation of bias which was required to be proven on the basis of evidence. The allegation was rejected by the primary judge on the basis that there was nothing in the decision, and no evidence provided, to demonstrate that the Tribunal did not approach the matter with an open mind. There does not appear to be any error in the way in which the primary judge characterised the argument and its rejection in the absence of any development or particularisation was inevitable.
C GROUND OF APPEAL
Again, in this Court there is only one ground of appeal. The notice of appeal identifies the following:
1.FEDERAL CIRCUIT COURT OF AUSTRALIA MADE THE JURISDICTIONAL ERROR
Again, the ground of appeal is unparticularised, but in the submissions filed by the appellant on 21 January 2020 there is some articulation of the contentions. The arguments have the initial flaw in that the appellant says that what he seeks is “judicial review of a decision of the second respondent”, being the Tribunal. Obviously enough, that is not the task in which I am engaged in hearing an appeal from a judge of the Federal Circuit Court. What is set out in the submissions is essentially a re-agitation of the issues below as though this were a hearing de novo of the case advanced before the primary judge. For this reason alone, the appeal must fail, but for the sake of completeness I will deal with the various matters identified which, like before the primary judge, can be summarised as follows:
(1)The Tribunal failed to consider whether the appellant had a well-founded fear of persecution.
(2)The Tribunal denied the appellant procedural fairness by concluding that the appellant was not a credible witness and that his claims were implausible.
(3)The Tribunal failed to consider the evidence put forward by the appellant as credible.
(4)The Tribunal erred in rejecting the photographs and letter provided by the appellant.
(5)The Tribunal denied the appellant procedural fairness by refusing to grant the appellant more time to obtain his brother’s birth certificate and other evidence regarding the relationship.
(6)The Tribunal approached the matter with a “preoccupied attitude”.
Given what I have set out above concerning the proceeding in the Federal Circuit Court and how it was determined, I can deal with each of these matters briefly.
First, as noted above, the Tribunal found that the appellant did not have a well-founded fear of persecution in Bangladesh: see the Tribunal’s reasons at [47]. This finding was plainly based on the Tribunal’s detailed rejection of the appellant’s claims to fear harm. Secondly, there was no denial of procedural fairness by reaching the conclusion, clearly open to the Tribunal, that the appellant was not a credible witness and that his claims were implausible. Thirdly, the suggestion that the Tribunal failed to consider the evidence put forward by the appellant can be more properly characterised as a contention that the Tribunal ought to have accepted that evidence and found the appellant to be credible. The findings as to the appellant’s credibility were reasonably open on the evidence before the Tribunal. The Tribunal explained that it found the appellant’s claims as to fearing harm difficult to accept in circumstances where he had returned twice to Bangladesh, apparently voluntarily, and nothing happened to him on either of these occasions. Further, the Tribunal noted its concern that the appellant failed to raise his fears of harm until the heel of the hunt, when he had appeared to have exhausted all other avenues of remaining in Australia.
Fourthly, the allegation that the Tribunal erred in rejecting the photographs and letters provided to it goes no higher than expressing disagreement with the findings of the Tribunal. As the primary judge noted, it was open to the Tribunal to attribute no weight to the photographs in circumstances where there was no way of the Tribunal confirming who the person in the photos was or how the injuries were sustained. It is, of course, trite that the weight to be attributed to the evidence is a matter for the Tribunal.
Fifthly, as noted above, there is simply no evidence that the appellant sought any further time following already having been given time to obtain documents; this alleged error has no substance. Sixthly, the difficulty with the allegation that the Tribunal approached the task with a predetermined or preoccupied attitude has already been identified above and there has been no development of this argument which was rightly rejected by the primary judge.
D CONCLUSION
Given that all the matters raised by the appellant have no substance, the appeal should be dismissed with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 10 February 2020