EHJ17 v Minister for Immigration and Border Protection
[2018] FCA 1869
•23 November 2018
FEDERAL COURT OF AUSTRALIA
EHJ17 v Minister for Immigration and Border Protection [2018] FCA 1869
Appeal from: EHJ17 v Minister for Immigration & Anor [2018] FCCA 1676 File number(s): VID 672 of 2018 Judge(s): O'CALLAGHAN J Date of judgment: 23 November 2018 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – where respondents had refused protection visa to appellant – where evidence and candour of appellant not accepted by the respondent due to inconsistencies – whether Federal Circuit Court erred in not accepting evidence – whether Federal Circuit erred in considering or not considering certain factors – appeal dismissed Legislation: Migration Act 1958 (Cth), s 116 Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Date of hearing: 23 November 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Appellant: The Appellant appeared in person with an Interpreter Counsel for the First Respondent: Mr C Tran Solicitor for the First Respondent: The Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 672 of 2018 BETWEEN: EHJ17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
23 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, to be assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)O’CALLAGHAN J:
These reasons were delivered ex tempore at the hearing on 23 November 2018 and accompany the orders set out above.
At the commencement of the hearing of this appeal, the applicant (who was self-represented, but appeared with the assistance of an interpreter) applied for an adjournment. He applied for the adjournment on the basis that:
I want to hire a lawyer and be given some time.
Counsel for the first respondent (the Minister), Mr C Tran, opposed the application for the adjournment on three grounds. First, it was submitted that the appeal has been on foot since 7 June 2018 and there is no indication that the appellant has taken any steps to seek legal assistance since that time. Secondly Mr Tran relied on a letter written by his instructing solicitors dated 25 June 2018, sent to the appellant in the usual way, informing him of a number of different lawyers he could contact. That letter is exhibit R1. Thirdly, the adjournment was opposed on the basis that the appellant has not indicated sufficiently that there would be any utility in granting it.
I am bound to accept those grounds of opposition and, accordingly, I decline to grant the application for an adjournment. I shall proceed now to consider the appeal.
This is an appeal from orders made by a judge of the Federal Circuit Court of Australia (the primary judge) on 21 May 2018, dismissing the appellant’s application for judicial review of a decision of the second respondent (the Tribunal), made on 22 August 2017, which affirmed a decision of a delegate of the Minister to refuse to grant him a protection visa. The appellant relies upon a notice of appeal which contains two grounds, neither of which was argued before the primary judge. Leave is accordingly required to rely on those grounds. But the Minister has not taken that point and is content to deal with the merits of the grounds.
In the procedural orders made before this hearing, the appellant was afforded the opportunity to file and serve any written submissions upon which he sought to rely in support of his appeal. He chose not to do so. At the hearing this morning, I asked the appellant, through his interpreter, whether he had anything to say in support of his appeal. The appellant said, “I have a fear if I go back” and that he had “documents” that he would show any lawyer he might retain.
For reasons which I will make clear, that submission is irrelevant for the purposes of the function that this court performs, because it is not for this court to determine factual questions about whether the appellant holds or does not hold relevant fears.
The appellant is a citizen of India. He arrived in Australia on 28 February 2016 on a student visa. That visa was cancelled on 7 March 2017 under s 116 of the Migration Act 1958 (Cth) after the appellant was convicted of a criminal offence and sentenced to a 12-month community corrections order. The appellant then applied for a protection visa on 22 May 2017. A delegate of the Minister refused that application by decision dated 6 June 2017. The appellant then applied to the Tribunal for review of the delegate’s decision. He gave evidence and presented arguments and, on 22 August 2017, the Tribunal affirmed the delegate’s decision.
The appellant’s claims for protection were set out in a statement accompanying his visa application. The gist of his claims, which the Tribunal subsequently set out in detail in its reasons, were that he and his wife had a falling out and were estranged and that her family, who were connected to a political party which had come into power, were threatening him and his family. The Tribunal found that the appellant was not a credible witness due to deficiencies and inconsistencies in the evidence that he gave. The Tribunal found that affidavits submitted by the appellant in support of his application were not consistent with the claims that he had advanced in his statement and before the Tribunal.
Further, the appellant had said to a compliance officer on 7 March 2017 that the only reason he could not return to India was that he did not have money and his parents were elderly. That statement was, of course, wholly at odds with his protection claim that his well-connected, estranged wife’s family were threatening him and his family. The Tribunal, therefore, did not accept the appellant’s claims to fear harm from a political party with which his estranged wife’s family was said to have been associated.
The appellant then sought judicial review before the primary judge in the Federal Circuit Court and relied upon five grounds of review. The primary judge held that there was no jurisdictional error exposed.
I turn now to the notice of appeal in this Court. The Minister’s counsel took a generous view of the first ground of appeal and made submissions on the basis that it contained three separate grounds, which he described as “aspects”. As the Minister’s counsel correctly identified, the first aspect of ground 1 is that the primary judge erred in failing to find that the Tribunal committed a jurisdictional error by, in substance, not accepting the appellant’s evidence. As counsel for the Minister submitted, this ground of appeal assumes that it was part of the function of the primary judge to consider whether the Tribunal was right or wrong to affirm the decision of the delegate. That formed no part of the primary judge’s function and it forms no part of this court’s function on appeal. Within the bounds of rationality, it is a matter for the Tribunal to determine whether it accepts or rejects the appellant’s evidence and, in this case, there can be no doubt that the reasons which the Tribunal gave rationally explained why it did not accept the appellant’s evidence.
The second aspect of ground 1 is that the primary judge erred in failing to find that the Tribunal committed a jurisdictional error: by taking into account irrelevant considerations; by failing to take into account relevant considerations; or by failing to take into account particular information or evidence. This ground or claim is entirely unparticularised, so it must fail on that basis alone. In any event, there is nothing in this case to suggest that the Tribunal considered matters or ignored matters that the Migration Act 1958 (Cth) obliged it to consider, or that it ignored matters that the Migration Act 1958 (Cth) obliged it to ignore (c.f. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40). Further, there is nothing in this case that remotely suggests that the Tribunal overlooked any particular evidence, significant or otherwise.
The third aspect of ground 1 is that the primary judge erred in failing to find that the Tribunal committed jurisdictional error by failing, properly or adequately, to investigate and assess the appellant’s claims, but this is, again, to assume, incorrectly, that the primary judge should or could have set aside the Tribunal’s decision on the merits. In this case, there is nothing that remotely suggests that the Tribunal failed to make any particular enquiry that it ought to have made.
I turn now to the second ground of appeal. The second ground of appeal is, in substance, that the primary judge erred in failing to find that the Tribunal committed jurisdictional error by failing to give proper consideration and weight to the appellant’s evidence as to his fear of persecution, his evidence about fear of losing his life and his claims. This ground is, relevantly, indistinguishable from the first ground of appeal and it is equally unmeritorious, because it invites merits review. Disagreement with the outcome of a tribunal’s decision does not entitle a judge to set aside that decision (c.f. Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [23]).
The function of evaluating the evidence and the function of its assessment is the function of the Tribunal and there is nothing in this case that suggests that, in so evaluating and assessing the evidence, the Tribunal was, relevantly, irrational or that it overlooked or disregarded any claims made by the appellant. It follows that the appeal must be dismissed with costs.
I therefore order as follows:
(1)The appeal be dismissed.
(2)The appellant pay the first respondent’s costs, to be assessed or agreed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 23 November 2018
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