DYO16 v Minister for Immigration and Border Protection
[2018] FCA 195
•16 February 2018
FEDERAL COURT OF AUSTRALIA
DYO16 v Minister for Immigration and Border Protection [2018] FCA 195
Appeal from: DYO16 v Minister for Immigration and Anor [2017] FCCA 2041 File number: QUD 467 of 2017 Judge: LOGAN J Date of judgment: 16 February 2018 Catchwords: MIGRATION – application dismissed by primary judge – appeal from Federal Circuit Court – Tribunal allegedly failed to properly investigate – primary judge correct in upholding Tribunal’s decision – appeal dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
SZIAI v Minister for Immigration and Citizenship (2009) 83 ALJR 1123
Date of hearing: 16 February 2018 Date of last submissions: 15 February 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Clayton Utz ORDERS
QUD 467 of 2017 BETWEEN: DYO16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
16 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs in respect of the appeal, as fixed at $6,439.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised From Transcript)LOGAN J:
The appellant arrived in Australia by boat and without authorisation on 6 May 2013. He is a citizen of Bangladesh. More particularly, he is an ethnic Bengali and a Hindu. On 12 December 2013 he applied under the Migration Act 1958 (Cth) (the Act) for that class of visa known as a Protection (Class XA) visa. In October of 2015, a delegate of the Minister refused that visa application. The appellant then sought the review of that decision by the Administrative Appeals Tribunal (Tribunal). The appellant was offered and took up an opportunity to give evidence and present arguments to the Tribunal.
Having considered the appellant’s evidence, both orally and also documents which have been lodged by him in support of his claim as well as various items of diplomatic and other sourced country information, the Tribunal decided on 18 November 2016, for reasons given that day, to affirm the decision not to grant to the appellant a protection visa. The appellant then applied to the Federal Circuit Court for the judicial review of the Tribunal’s decision. The grounds of review which are set out at para 15 of the reasons for judgment of the primary judge are noteworthy for their generality.
Nonetheless, and apparently by reference to outlines of submissions filed by the appellant (see para 6 of the primary judge’s reasons), his Honour dealt with the judicial review application by reference to more particular grounds of challenge than those specified in the judicial review application. It appears that with commendable fairness, the Minister approached the case in the Federal Circuit Court by reference to those outlines of submissions rather than just the, essentially, meaningless in their generality grounds of review.
On 29 August 2017, the Federal Circuit Court dismissed with costs the appellant’s judicial review application. It is from that order of dismissal that the appellant now appeals to this court. The grounds of appeal are:
1.The Judge of the Federal Circuit Court in his honourable judgement delivered on the 29 August 2017 failed error of law and relief under the judiciary Act. The Judge failed to find that the Administrative Appeals Tribunal (AAT) has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt.
2.Honourable Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to find low profile political activists are mostly persecuted because of their role for the party like BNP AND MINORITY HINDU RELIGIOUS BELIEVE. The Tribunal failed to understand the persecution until political killing in Bangladesh under present dictatorial role in Bangladesh. The Tribunal member concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible.
3.I was denied procedural fairness, when the Tribunal member made opinion based on assumption and possibilities without any proper investigation. The Tribunal failed to assess the current situation in Bangladesh where thousands of my party leaders AND workers are arrested and killed by so called crossfire and harassed by the autocratic present Awami League Government & the Authority. It is well established that independent report like Amnesty International Country Reports. Present circumstance very danger for me, the Tribunal undermined the danger, I will face if I am compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protect my life.
4.Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed.
Grounds 1 and 2 of these grounds of appeal do at least focus on the judgment of the Federal Circuit Court. Ground 1 is stated at a level of generality which is devoid of meaningful content as to the error of law to be found in the Federal Circuit Court judgment.
Ground 2 can be regarded as raising for consideration that the integers or details of the claim made by the appellant for a protection visa were not considered by the Tribunal and that the Federal Circuit Court should have found just that. It may be accepted that a failure by a tribunal to engage with the integers or details of a protection visa claim amounts to a failure to discharge the statutory function and thus jurisdictional error: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088. The Tribunal’s engagement yielded the following conclusion found at para 79 of its reasons:
In sum, the tribunal does not accept that the applicant has a well-founded fear of persecution for reasons of his Hindu faith, religion or any associated Convention ground, such as his membership of a particular social group, such as the Hindu minority, or his well-known family, his contacts, his past contacts with BNP locals. The tribunal does not accept he is, or is perceived to be, a BNP supporter, actual or imputed, or for any other Convention reason.
What precedes that in the Tribunal’s reasons is a very comprehensive engagement with the basis of the appellant’s visa claim, including the making of particular findings of credit. These disclose that the Tribunal did not impose some necessary level of involvement as a threshold for the establishing of a well-founded fear of persecution.
The appellant has elaborated on why it is that the Tribunal should have made findings in his favour in relation to his visa claim, particularly his involvement with the BNP, in his written submissions. That type of submission, though, is one which was appropriate in the hearing before the Tribunal, but this Court has no role to play in relation to an assessment of the merits of a visa claim. Ground 2 discloses no error on the part of the Federal Circuit Court in the way developed in submissions. It is really just an attempt, impermissibly, to secure merits review by the court.
Ground 3 alleges an absence of proper investigation on the part of the Tribunal, but the core function of the Tribunal was that of review: see SZIAI v Minister for Immigration and Citizenship (2009) 83 ALJR 1123, at para 18. In the ordinary course of events, it is for an applicant for review to place before the Tribunal such supporting material as he or she is able, to persuade the outcome for which the Tribunal to reach the outcome for which or she contends. That is not to say that there is any formal onus of proof, only that it is in a person’s interests to make as much of the opportunity provided by the review offered as he or she can.
The Tribunal is not obliged to accept uncritically the information, either oral or written, provided by an applicant. It is entitled to look to other information before it, such as, for example, country information from diplomatic sources. The weight to give that information, like that provided by an applicant, is a matter for the Tribunal’s evaluation. The appellant contended in written submissions that the Tribunal’s reasons were illogical, irrational or unreasonable, but, as one must, reading those reasons as a whole, they disclose, as I have observed earlier, a comprehensive engagement with the basis of the appellant’s visa claim.
The conclusions which the Tribunal reached were open to be reached on the material before the Tribunal. I am not persuaded that there was any obvious inquiry easily made for the Tribunal. The conclusion of the primary judge that the decision was not unreasonable (see para 57), was correct.
Ground 4 of the grounds of appeal is cast at a level of generality which makes it devoid of meaningful content in terms of which proper procedure, as required by the Act, was not followed. The appellant did not elaborate on this, so as to give particularity, in his oral submissions today. For completeness, I should mention that the Minister filed yesterday a written submission which responded to the appellant’s late-filed written submission. I do not doubt the genuine motivation of endeavouring to make sense and responsive submission in respect of what the appellant had filed.
The difficulty about that, apart from adding one gratuitous written submission to another, is that its timing of filing and service was such that it did not, in my view, provide a person illiterate in English with any reasonable opportunity to have the submission translated. Because of that, I did not permit the Minister to rely upon the written submission filed yesterday but instead afforded an opportunity to address the appellant’s written submission in oral submissions, which could thereby be translated to the appellant.
The appellant’s description of the Tribunal’s reasons as irrational, illogical or unreasonable is, I have no doubt, having heard his oral submissions, an indicator of his emphatic disagreement, and the strength of that disagreement, with the conclusions reached by the tribunal, but jurisdictional error does not lie in emphatic disagreement. The Federal Circuit Court was correct to conclude that this tribunal’s decision was not, in the sense understood in public law, unreasonable. For these reasons, the appeal must be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 28 February 2018
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