DYU16 v Minister for Immigration

[2017] FCCA 1425

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYU16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1425

Catchwords:
MIGRATION – Application for Temporary Protection (Class XD) visas – no jurisdictional error established – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.36(2A), 424A

Migration Regulations 1994 (Cth)

SZRSN v Minister for Immigration [2013] FCA 751

First Applicant: DYU16

Second Applicant: DYV16

Third Applicant: DYW16 by her litigation guardian DYU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1165 of 2016

Judgment of: Judge Jarrett

Hearing dates: 9, 30 May 2017

Date of Last Submission: 30 May 2017

Delivered at: Brisbane

Delivered on: 30 May 2017

REPRESENTATION

The First and Second Applicants appeared in person.

The Third Applicant appeared by his litigation guardian, the First Applicant

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 the application filed on 16 December, 2016 is dismissed;

2. The first and second applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1165 of 2016

DYU16

First Applicant

DYV16

Second Applicant

DYW16 BY HER LITIGATION GUARDIAN DYU16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By their application filed on 16 December, 2016 the first, second and third applicants seek to challenge a decision of the Administrative Appeals Tribunal given on 22 November, 2016 which, in effect, affirmed a decision of a delegate of the first respondent to refuse to grant to the applicants Protection visas.  The delegate’s decision was made on 13 August, 2015. 

2. Between the applicants’ application for their Protection visas and the decision of the Administrative Appeals Tribunal, there was a change in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), which ultimately saw the applicants’ applications treated as applications for Temporary Protection (Class XD) visas.

3. The application is advanced by the first applicant on behalf of each of the other applicants.  The first applicant was found by the Tribunal to be a national of Bangladesh.  The second applicant is his wife and she was found to be a national of Indonesia.  The third applicant is their child, who is still an infant.  On the first court date, the first applicant was appointed litigation guardian for the third applicant. 

4. The Tribunal delivered written reasons for its decision.  The Tribunal, in my view, correctly set out the law that it had to apply when determining the application for review before it.

5. The Tribunal set out, clearly, the first applicant’s claims as they were made in his application in support of his protection visa and in a supplementary statutory declaration that he gave to the Tribunal in November, 2016. 

6. The Tribunal assessed the first applicant’s claims.  Essentially, the first applicant claimed that he had a well-founded fear of persecution should he return to Bangladesh because he would be harmed by reason of his imputed political opinion.  He gave the Tribunal, in his statutory declarations, evidence that his family had been harmed.  He claimed that his family had been killed by the opposition parties in Bangladesh as well as by gang people.  He named a particular person who he claimed wished to harm his family and himself.  The first applicant gave evidence about how he came to live in Indonesia and meet up with the second applicant.  He was in Indonesia unlawfully.

7. The Tribunal considered the first applicant’s claims carefully.  It accepted some of them, although it expressed some doubt about them.  It gave the benefit of the doubt to the first applicant.  Nonetheless, the Tribunal came to the conclusion that it did not think that the first applicant met the criteria for the grant of the protection visa for which he applied. 

8. The second applicant’s claims were also set out in statutory declarations.  The first was dated 8 June, 2014 and the second 16 November, 2016.  The Tribunal considered the second applicant’s claims carefully.  It formed a different view about her claims than it did about the first applicant’s claims.  The Tribunal concluded that the second applicant had fabricated her claims to fear harm from her uncle, and it set out in its reasons for decision at paragraph 89 the reasons for which it came to that conclusion. 

9. The Tribunal accepted that the first applicant and the second applicant had attracted unwanted police attention in Indonesia because of the first applicant’s unlawful presence in that country.  That was a matter that the Tribunal accepted and considered.  The Tribunal noted that insofar as the third applicant was concerned, the claims of the third applicant fell to be determined according to the claims of the first or second applicants. 

10. The Tribunal also noted that the first, second and third applicants formed part of a family unit and that there was some prospect that the first applicant might be returned to Bangladesh, the second applicant might be returned to Indonesia with the third applicant, and so the family members would be separated in that sense.  An argument was made to the Tribunal that separating the family in that way would offend the relevant United Nations convention. 

11. The Tribunal considered that matter, referred to a decision of the Federal Court of Australia (SZRSN v Minister for Immigration [2013] FCA 751) and determined that if indeed there was to be a separation of family members, it would not amount to significant harm as defined in s.36(2A) of the Migration Act because it was harm that arose from the act of removal itself and that did not meet the definitions of significant harm for the purposes of the Act. The complementary protection obligations set out in the Migration Act were therefore not engaged. The Tribunal concluded that the applications for review should be refused and the decision of the first respondent’s delegate, in effect, affirmed.

12. In support of this application, the first and second applicants have sworn an affidavit that was filed on 26 May this year.  Although it is described as an affidavit, it is in fact an outline of submissions.  The outline of submissions does not further particularise the general ground of the application that the Tribunal’s decision was affected by legal error, although within the body of the submissions there are a number of errors on the part of the Tribunal alleged.  The outline of submissions is a discursive document, but it seems that the following matters are raised within it as evidence of a legal or jurisdictional error on the part of the Tribunal:

    a)the Tribunal made findings where there was no evidence to support those findings;

    b)the Tribunal failed to take into account relevant considerations and to ask itself the right question;

    c)the Tribunal’s finding or perhaps its ultimate determination was unreasonable in the “Einsbury sense”.  I expect that the applicant intends to refer to the Wednesbury principles. 

13. The particulars set out under the various headings within the written submissions, “Jurisdictional/Legal Error 1”, “Legal Error 2”, “Legal Error 3”, “Legal Error 4” and “Legal Error 5” also at various points suggests that the Tribunal had predetermined the matter or was either apparently or actually biased against the applicants. 

14. However, I can discern no legal error in the approach of the Tribunal.  There is nothing in any of the complaints made by the applicants about the Tribunal’s decision.  The applicants’ submissions, when properly analysed, in my view, represent an impermissible attempt at reviewing the merits of the Tribunal’s determination.  The Tribunal simply was not satisfied that the first applicant engaged the relevant criteria for the grant of the visa.  The Tribunal made a positive finding that the second applicant fabricated her claims, and the claims of the third respondent fell because of the failure of the first and second applicants to succeed. 

15. The first legal error alleged by the applicants in the written outline is that the Tribunal made a mistake by ignoring “UN Refugee Convention when the Tribunal made its decision to split the family”.   Two things arise from this.  The first is the Tribunal’s reasons make it clear that it did not ignore the UN Refugee Convention; it specifically referred to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.  Secondly, the Tribunal did not make a decision to split the family.  That the family might be split, if indeed that is what happens is, as the Tribunal explained, a function of the deportation or removal of the applicants from Australia.  They each have entitlements to return to different countries.  It will be a function of the removal process rather than anything else.  There is nothing in the Tribunal’s decision that would indicate that it ignored “the basic human right”. 

16. The second legal error that is alleged is that the department did not “follow procedural fairness”, but there is nothing in the material to which I have had regard – the Tribunal’s decision, reasons for decision and the material in the Court Book that was filed by the first respondent on 31 March this year – that would indicate that the Tribunal denied the applicants procedural fairness in any way. Section 424A of the Migration Act is specifically mentioned by the applicants, but there is no basis to suggest, in my view, that s.424A has not been observed. The Tribunal’s reasons make it clear that it raised with each of the applicants the concerns that it had about the applicants’ claims. It gave each of the applicants the opportunity to address those concerns.

17. The third legal error alleged is that the Tribunal “made the legal mistake by misjudging that my uncle will not attack me”.  This ground is a ground specific to the second applicant because it was her case that she was at risk of harm from her uncle, who she said would kill her if she returned to Indonesia.  This ground is nothing more than an argument with the merits of the Tribunal’s decision and the conclusion reached by the Tribunal that there was no relevant risk of harm to the second applicant from her uncle should she be returned to Indonesia. 

18. The fourth ground of legal error alleged is that the Tribunal did not exercise its rehearing function because, according to the argument, it relied upon conclusions that had already been reached by the delegate. The Tribunal’s reasons for decision make it clear, in my view, that is not so. The Tribunal carried out its review in accordance with the Migration Act, and there is, in my view, no occasion to complain about the process adopted by the Tribunal.

19. The fifth legal error asserted by the applicants is that the Tribunal made some contradictory comments on its decision or assessment.  I have carefully considered those matters set out in the affidavit in the last two pages of the applicants’ written submissions, but in my view, they do not demonstrate that the Tribunal in any way contradicted itself on its decision or its assessment, as the applicants would have it. 

20. The allegations of bias, apprehended and actual, are simply not made out on the material before the Court.

21. In my view, the Minister establishes that the application has not raised an arguable case for the relief claimed. It is appropriate to dismiss the proceedings pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

ORDERS DELIVERED

1. This is an application for costs.  In this jurisdiction, costs follow the event unless there are some special reasons or circumstances that would mean that the usual rule should not apply.  The first applicant has suggested that he is unable to pay the costs, but impecuniosity has never been seen as a special circumstance sufficient to displace the usual rule that costs should follow the event.  There is no reason in the present case not to apply the usual approach and order the unsuccessful applicants to pay the successful respondents costs of the proceedings.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  26 June 2017