DRP16 v Minister for Immigration

[2018] FCCA 1130

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRP16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1130

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to comply with ss.424A and 425 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.45AA, 424A, 425

Migration Regulations 1994 (Cth), reg.2.08F

Cases cited:

CQG15 v Minister for Immigration & Border Protection (2016) 70 AAR 413; [2016] FCAFC 146
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 301
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123

Applicant: DRP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3409 of 2016

Judgment of: Judge Smith

Hearing date: 21 March 2018

Date of Last Submission: 21 March 2018

Delivered at: Sydney

Delivered on: 21 March 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms M Donald, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3409 of 2016

DRP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 24 November 2016.  The Tribunal made a decision to set aside a decision made by the delegate of the Minister to refuse to grant the applicant a protection (class XA) visa and to substitute a decision to refuse to grant the applicant a temporary protection (class XD) visa.  Although the terms of the decision itself are not in issue in the proceedings, it is necessary to say something briefly about them.

2. First, the delegate did not in fact make a decision to refuse to grant the applicant a class XA visa, so the Tribunal was, when it made its decision, misguided. It explained the reason for doing that at [3] of its reasons. It said there that the applicant applied for a class XA visa, which I note was made on 4 April 2013. The Tribunal then said that by operation of s.45AA of the Migration Act 1958 (Cth) and reg.2.08F of the Migration Regulations 1994 (Cth), the application for a class XA visa was taken to have been a valid application for a class XD visa. However, even though the Tribunal was misguided to the extent that the delegate had not in fact made a decision concerning the class XA visa, its decision was, in effect, to affirm the delegate’s decision to refuse to grant the applicant a class XD visa, and it did so for reasons which would have made no difference at all to the fact that the decision of the delegate would have remained undisturbed.

3. It may be, although I can only speculate, that there have been a number of delegates who wrongly made a decision to refuse to grant a class XA visa, and the Tribunal has seen fit to correct that in light of the operation of reg.2.08F of the Regulations. Having noted that anomaly in the Tribunal’s decision, and my opinion that the anomaly does not impact upon this application, it is necessary to set out a brief background to the Tribunal’s decision, as well as to explain briefly its reasons for that decision in order to understand the grounds that are raised by the applicant in his application.

4. The applicant is a citizen of Bangladesh who arrived in Australia on 6 December 2012.  Although he arrived by boat and without a visa, it appears that he arrived in Darwin and for that reason did not fall within the classification of an unlawful maritime arrival when that concept was introduced into the Act in 2013.  The consequence of that was ultimately that it was the Tribunal rather than the Immigration Assessment Authority that determined a review of the delegate’s decision concerning his visa.

5. The applicant, as I have noted, made an application for a class XA visa on 4 April 2013, which was taken by virtue of reg.2.08F to have been an application for a class XD visa. In that application he claimed that he had been falsely accused of murder because of his involvement in the Bangladesh National Party (BNP).  In particular, he claimed that he would be persecuted by the Awami League (AL) for reason of his political opinion and that the false accusation was part of that persecution.

6. On 16 April 2015, a delegate of the Minister, having rejected those claims, was not satisfied the applicant met the criteria for the grant of a protection visa and so refused to grant the applicant a protection visa.  The applicant then applied to the Tribunal for review of the decision.  He attended a hearing conducted by the Tribunal on 7 October 2016.  I note that the content of that hearing is, to some extent, in issue, as is the extent of the hearing.  I will come back to that in due course.

7. At the hearing the applicant claimed, in addition to his earlier claims, that he had held a position with the BNP and that he had been tortured in Bangladesh, although he later conceded that he had never been harmed by the AL.  The applicant claimed that “[h]e had been working with the Bangladesh Jatiobadi Dal in Australia and had attended meetings all over Sydney as an executive member”.  The applicant also stated that “[h]e could not return to Bangladesh because his home was no longer there as people had thrown stones at it” and “[h]e could not rebuild his home with the assistance of his brothers as they were also living in fear”.  His agent claimed on his behalf that the applicant would face a risk of harm in Bangladesh as a person returning from a wealthy country, namely Australia.

8. On 24 November 2016, the Tribunal made a decision, as I have noted, to set aside the delegate’s decision and to replace it with a decision to refuse to grant the applicant a class XD visa.  The Tribunal effectively found that the applicant was not a witness of truth, and it made a number of findings which are summarised at [9] of the Minister’s submissions which I adopt for the purpose of this judgment and set out below: 

   9The Tribunal found that the applicant was not a witness of truth, and had fabricated his claims for the purpose of obtaining a protection visa. Specifically:

   (a)the Tribunal found that the identity documents submitted by the applicant were not genuine;

   (b)the Tribunal was not satisfied that the applicant had been, or was, a member or supporter of the BNP; it followed that the Tribunal did not accept any of the applicant’s claims that flowed from that;

   (c)the Tribunal did not accept that the applicant ever engaged in criticism of the Awami League, was associated with the BNP in Australia or would be perceived as a BNP supporter;

   (d)the Tribunal did not accept that the court documents submitted by the applicant were genuine and found that the claim in relation to the false case against the applicant had been fabricated; it further found that the applicant was not accused of the kidnapping and/or murder of Shourav Shaha or Shamal Kumal, and did not accept that the applicant’s friend, or anyone else associated with the applicant, was implicated in any kidnapping or murder;

   (e)the Tribunal did not accept that the applicant fled Bangladesh for the reasons claimed, or had been/was of adverse interest to the Bangladeshi authorities or the Awami League; and

   (f)the Tribunal was not satisfied that returnees to Bangladesh were at risk of harm because they were perceived as wealthy people.

   (Footnotes omitted)

9. On the basis of those findings, the Tribunal did not accept that there was a real chance of serious harm or significant harm if the applicant were to return to Bangladesh, now or in the reasonably foreseeable future, and for that reason was not satisfied that the applicant met the criteria for the grant of a protection visa.

10. The applicant appeared unrepresented today at the hearing and when asked to make submissions in support of his application, said two things.  First, that he has a problem in his country, and secondly, that the Tribunal did not believe him.  The jurisdiction of this Court is limited to determining whether the Tribunal’s decision was affected by jurisdictional error, that is, some error that is sufficiently serious that it had a material impact upon the exercise by the Tribunal of its power, that is, its power and duty to review the decision of the delegate.

11. The first matter raised by the applicant today does not go to the existence of jurisdictional error.  It is something that might support the applicant’s claim to be a refugee and so to be owed protection obligations by Australia; however, the determinative nature of that issue is left by the legislature to the Tribunal and simply to say that the Tribunal was wrong in that determination does not establish jurisdictional error.

12. The second matter raised by the applicant is clearly correct, the Tribunal did not believe him. However, just to say that does not establish that there was error in the Tribunal’s decision.  While it is possible for a Tribunal to fall into jurisdictional error in connection with the making of a credit finding, the credit finding in and of itself, even if it is wrong, does not establish such an error.  I will return to consider the reasons for the Tribunal’s credit finding in due course, but note for the moment that nothing said by the applicant today was sufficient to justify the Court making the orders that he seeks.  In his application to the Court, the applicant raises two grounds, the first of which has a number of particulars.

13. The first ground is that the Tribunal failed to comply with the requirements of s.424A of the Act. That section relevantly required the Tribunal to give to the applicant clear particulars of any information that it considered would be the reason, or a part of the reason, for affirming the decision that is under review. As will be seen, none of the particulars supports the contention that the Tribunal failed to comply with the requirements of that section.

14. The first particular is that “[t]he Tribunal failed to determine well-founded fear of the applicant that he is likely to face in his reasonably foreseeable future upon return to his country of origin.” Given that, at [48] of its reasons, the Tribunal expressed itself in terms of the reasonable foreseeability of harm upon return to Bangladesh, this ground, properly understood, is only that the Tribunal made a mistake in its determination of that question. That is because it is clear beyond doubt that the Tribunal did address that question. As I have explained briefly already, the fact that the Tribunal might have made a mistake in coming to that conclusion does not establish jurisdictional error, nor does it establish that there was any obligation under s.424A, or breach of such an obligation.

15. The second particular is that:

    The Tribunal relied on any or all of the information in assessing and making decision … rather than focusing as to why the applicant applied for his protection visa.  The tribunal ignored the fact that there was significant risk that the applicant would have suffered upon his return to his country of origin.

16. Properly understood, this particular addresses only, again, the question of the merits of the Tribunal’s reasons, and has nothing to do with s.424A of the Act.

17. The third particular is that “[t]he Tribunal made its decision in a conventional way without satisfying the provisions of Migration Act 1958.” I simply do not understand what that means. It does not raise any error that I can see, and the applicant did not address it in his oral submissions and made no written submissions. It may be left to one side.

18. The fourth particular is that:

    The Tribunal hearing and decision contained huge procedural unfairness …. The tribunal asked questions to the applicant not related to the refugee’s convention or even beyond the Migration Act definition of refugees. The tribunal conducted cross questioning to the applicant for a duration of approximately 6 hours and some of the questioning was irrelevant to the applicant’s claim for his protection visa application.

19. There are a number of difficulties with those assertions.  The first is that none of them is made out on the evidence.  The information before the Court reveals that the hearing did not take six hours, but rather was only three hours.  It also shows that there was an adjournment during the course of the hearing. 

20. Secondly, there is nothing in the material to suggest that the Tribunal asked questions that were unrelated to the applicant’s claims.  The only evidence of what occurred at the hearing is that which is set out in the Tribunal’s decision.  No doubt the applicant felt that to some extent he was being cross-examined by the Tribunal.  It may be, as he says, that he was asked a number of questions that he did not understand the relevance of, however, that does not mean that the hearing was somehow unfair.

21. The hearing was the opportunity for the applicant to give evidence and to make submissions in relation to the issues that arose under review, and the questions asked by the Tribunal might have focused on issues that it considered arose that the applicant might not have considered. I can see no error in that approach, even if it were established on the evidence. This particular is unsupported by the evidence, and in addition I might add that, it does not say anything about s.424A of the Act.

22. The fifth particular is that:

    The tribunal made its finding without any evidence or verification before rejecting the applicant’s protcction [sic] visa claims in a conventional way which constitutes a non-compliance of s424A of the Migration Act 1958.

23. Section 424A of the Act has nothing to do with the actual findings made by the Tribunal. It is an obligation that arises anterior to the Tribunal’s final consideration of the material. The allegation that the Tribunal made findings without evidence or verification suffers from two difficulties.

24. First, the Tribunal does not need to have any rebutting evidence before it rejects an applicant’s claims: see Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348; [1994] FCA 301, recently referred to by the Full Court of the Federal Court in CQG15 v Minister for Immigration & Border Protection (2016) 70 AAR 413 at [65]; [2016] FCAFC 146.

25. The second difficulty is that, to the extent that the applicant claims that the Tribunal ought to have verified his claims, there is nothing to suggest that the Tribunal fell into jurisdictional error in that respect.  It may be that where there is an obvious inquiry that might be made in respect of a critical matter, that the failure to make such an inquiry can affect the Tribunal’s decision: see Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. However, the applicant cannot say what obvious inquiry could have been made here in respect of a critical claim and there is nothing on the material that suggests there was any such obvious inquiry.

26. I would add in this respect that the Tribunal’s findings on credit were based upon its close assessment of the material and claims put forward by the applicant.  The Tribunal has set out in discussion of that evidence, in [19] through to [35] of its reasons, a number of concerns that it held in respect of the applicant’s evidence and submissions and concluded that it did not accept that the applicant was a witness of truth.  Amongst the issues raised by the Tribunal were the inconsistent evidence given by the applicant about his date of birth, about whether or not he was tortured in Bangladesh, about his involvement in the BNP and the inconsistency between the evidence adduced by him purporting to come from independent sources and his own evidence about that involvement.

27. The Tribunal also was troubled by the inconsistency in the evidence by the applicant about the false claim that he had said had been made against him.  Each of these concerns was probative of a finding against the credit of the applicant.  It is clear that its concerns were put to the applicant during the course of the hearing, as described by the Tribunal in [19] through to [35] of its reasons, and that he had the opportunity to address the issue of credit.  For that reason, I can see no error made by the Tribunal in respect of its decision concerning the applicant’s credibility.

28. The final particular in ground 1 is that (without alteration):

    Subsection 424A (1) (b) required the tribunal to ensure, as far as was reasonable practicable that the applicant understood as to why the information and questions were relevant to the review applicant for the purpose of s91R (3) and s36 (2) (a a), and the consequences of being relied on in affirming the decision that is under review and the tribunal failed to do so …

29. This appears to be an assertion that the Tribunal had to explain to the applicant at the hearing why each of its questions was relevant to the criteria for the grant of a protection visa.

30. That is not what s.424A requires. Section 424A attaches to certain information. Information, simply put, is knowledge about a fact or event obtained from some other source. Essentially it goes to, but is not necessarily restricted to, documentary evidence: see, for example, SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 referring in turn to VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123.  It is not the case that when the Tribunal asks a question at a hearing that it has to explain in each instance why that question is being asked, a consequence of the question and any answer to it.

31. For those reasons, none of the particulars support either an independent jurisdictional error or the error asserted in the first ground, namely a breach of s.424A of the Act. It may be noted that the Tribunal at the hearing did give the applicant certain information which it thought it was obliged to do pursuant to s.424A of the Act: see [22] and [23] of its reasons. It is not clear to me that any obligation arose under s.424A of the Act in respect to the information referred to there, but if the Tribunal went beyond what it was required to do, that did not in itself lead to any error that affected its jurisdiction.

32. The second ground is that the Tribunal failed to comply with the requirements of s.425 of the Act. The particulars of the ground are that the Tribunal made its findings without any sound basis or evidence and that this constituted a breach of s.425 of the Act. I have already explained that s.425 of the Act requires the Tribunal to give the applicant an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. That has nothing to do with findings actually made by the Tribunal, although it may be that if certain findings are made without an opportunity having been given to address those findings, a breach of s.425 might be established.

33. However, I do not think that that is what the applicant asserts, and if he did, he would suffer the difficulty that he has not proven that there was a lack of opportunity at the hearing to give evidence and present arguments about the issues.  Rather, I think what the applicant is asserting in the particulars to ground 2 is the same as what he stated in particular 5 to ground 1, namely that there were findings without evidence or verification.  If that is correct, then I repeat what I have said in respect of that particular and reject ground 2. 

1. I am not satisfied that there is a jurisdictional error in the Tribunal’s decision and for that reason the application will be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:   9 May 2018