EQA17 v Minister for Immigration
[2018] FCCA 710
•27 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EQA17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 710 |
| Catchwords: MIGRATION – Judicial review – application for Protection (Class XA) Visa – decision of Administrative Appeals Tribunal – Turkish citizen of Kurdish ethnicity – whether failure to properly consider claims – whether denial of opportunity to comment on claims – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Pt.7, Div.4, ss.36, 420, 422B, 425, 476 |
| Cases cited: AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 | ||
| Applicant: | EQA17 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 555 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 8 March 2018 |
| Date of Last Submission: | 8 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 27 March 2018 |
REPRESENTATION
| Applicant: | No appearance by or for the applicant |
| Counsel for the First Respondent: | Mr PJ Corbould |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS (as made 8 March 2018)
The application be dismissed.
Written reasons for judgment to be published from Chambers at a later date.
The applicant pay the first respondents costs in the sum of $7,328 by 8 April 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 555 of 2017
| EQA17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application for judicial review (“Judicial Review Application”) filed on 17 October 2017 the applicant seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision dated 21 September 2017 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Class XA protection visa (“Protection Visa”) to the applicant. The Tribunal Decision appears in the Court Book (“CB”) at CB 179-206.
When the matter was called for hearing on 8 March 2018 the applicant was not in attendance, and after having the matter called three times outside the courtroom the Court expressed the view, having read the materials before it, that the Judicial Review Application ought to be dismissed and the following orders were made:
1. The application be dismissed.
2. Written reasons for judgment be published from Chambers at a later date.
3. The applicant pay the first respondent’s costs in the amount of $7,328 by 8 April 2018.
What follows are the Court’s formal written Reasons for Judgment as referred to in order 2 of the above orders.
Background
The background to the Judicial Review Application is as follows:
a)the applicant had visited Australia on two prior occasions, both in 2009, on a visitor visa: CB 124-125;
b)the applicant, a Turkish citizen of Kurdish ethnicity, arrived in Australia for the purpose of these proceedings on 12 August 2013 on a visitor visa: CB 124
c)on 23 August 2013 the applicant applied for a Protection Visa and made the following claims:
i)he is of a Kurdish Alevi family which was forced to flee within Turkey from Pazarcik to Gaztiantep before the applicant was born, to escape persecution and oppression: CB 51;
ii)after a visit to Australia in 2009 he began to question why human rights were not granted in Turkey for Kurds and Alevis, and upon return to Turkey he became more politically involved with the Peace and Democracy Party (“BDP”), a Kurdish political party: CB 51;
iii)he had a nuts and dried fruits shop between 2006-2009 and was being subject to continuous harassment by undercover policemen because of his passive support for the predecessor to the BDP, the Democratic Society Party (“DSP”), including detaining him without excuse and pressuring him to sever his party political ties: CB 52;
iv)from 2009 the oppression toward the applicant increased as he more actively participated in the BDP, amounting to torture and threatening to exterminate him and his family if he did not stop his relationship with the BDP: CB 52;
v)he tried to flee to Germany, and was caught at Antalya airport while attempting to fly out of Turkey with a fake passport in October 2011: CB 52;
vi)when caught at the airport he had documents which showed he was a BDP member, and was tortured for days on the accusation that he intended to join the Kurdish Workers Party (“KPP”), an outlawed Kurdish guerrilla organisation: CB 52;
vii)he was released after one week in detention, but was scared to go to a hospital and subsequently lived for quite some time with psychological problems (for which he still receives support), but the doctor who he saw in Gaziantep would not issue a report out of fear that those who harmed the applicant would do the same to the doctor: CB 52-53;
viii)out of fear he did not go to BDP premises for some time after his detention, however when he did return the oppression was getting more severe every day, and when starting preparations for May Day in 2013 he was abducted and told he must cooperate and provide intelligence to his captors or they would arrest him for being a member of a Kurdish umbrella organisation, the Kurdish Communities Union (“KCK”), though they let him go and said they would talk to him in a week: CB 53-54;
ix)after this incident he hid in the village of an old friend of his father’s until he left for Australia: CB 54; and
x)if he has to return he will either be executed extra judicially or imprisoned for his BDP membership, because despite the BDP being a legal party they are subjected to political bans, imprisonment and oppression on an ongoing basis: CB 54;
d)the applicant was interviewed by the Delegate on 4 June 2014 and on 19 June 2015 the Delegate’s Decision was to refuse to grant the applicant a Protection Visa: CB 86-102;
e)the applicant applied to the Tribunal for review of the Delegate’s Decision and attended a hearing before the Tribunal on 7 April 2017 (“Tribunal Hearing”) where he gave evidence with the assistance of an interpreter and was accompanied by a migration agent who provided written submissions to the Tribunal on 31 March 2017: CB 145-153 and 5 June 2017: CB 171-178; and
f)on 21 September 2017 the Tribunal Decision was to affirm the Delegate’s Decision not to grant the applicant a Protection Visa: CB 179 and CB 197 at [103].
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)accepted the applicant was “nominally” an Alevi Kurd: CB 185 at [33] (and CB 180 at [5]), but expressed reservations including that:
i)the applicant provided little to indicate he actually identified as a Kurd or an Alevi: CB 185 at [32];
ii)he was not religious and did not speak Kurdish: CB 185 at [32]; and
iii)while he favours the pro-Kurdish opposition parties his claims as to actual political involvement lacked credibility: CB 185 at [32];
b)noted the information (including country information), policy guidelines, legislative provisions and evidence the Tribunal considered in making the Tribunal Decision: CB 181-182 at [13]-[17];
c)found the applicant’s evidence at the Tribunal Hearing to be “vague and changeable”: CB 182 at [18];
d)found that when the Tribunal sought to clarify inconsistencies the applicant could not remember details: CB 182 at [18], but in spite of the applicant’s lack of specificity, the Tribunal was satisfied the applicant had an opportunity to present all of his claims through his migration agent who had provided pre-Tribunal Hearing and post-Tribunal Hearing submissions: CB 182 at [18];
e)formed the view that the applicant's oral evidence of his and his family's circumstances was selective, and that he had skewed or exaggerated his situation, and tried to link them, “awkwardly”, with his protection claims which lacked supporting detail, in order to bolster those claims: CB 182 at [18]-[19];
f)specifically in several instances the applicant made a particular claim but was unable to provide context or additional information, and he did not appear to have turned his mind to what material might be available, including not thinking it “necessary” to call his brother-in-law (who seemingly lives in Perth) to appear as a witness at the Tribunal Hearing to support the applicant’s claim of political activism, when he claimed it was his brother-in-law who inspired his political activism, and finally, the Tribunal's enquiries about whether the applicant might have photographs or other documents to support his claimed political activities in Turkey, did not generate “any real interest or engagement on his part”: CB 182 at [19]-[20];
g)asked the applicant about any psychological harm or treatment in Turkey, to which the applicant “replied obliquely that he is an introvert”, that he felt under pressure, and that his brother-in-law took him to a psychologist a few times, but he is not currently receiving treatment, and based on those responses the Tribunal was not satisfied that the applicant has any psychological issues that affected his competence to give evidence, or which were material in assessing his past experiences in Turkey or his future prospects if he returns: CB 183 at [22];
h)even allowing for family priorities, considered the applicant's willingness to return to Turkey on previous occasions raises doubts about his claimed experiences in Turkey, and the delay of almost two months in applying for a Protection Visa after arriving in Australia raises further doubts about his need for protection: CB 183-184 at [24];
i)was not satisfied with the applicant’s explanations for the delay in applying for a Protection Visa, namely:
i)that he “had no idea” about seeking protection, but lived with his brother-in-law who had been politically active in Turkey, and who had been granted refugee status in Australia: CB 183-184 at [24]; and
ii)that his father contacted him saying the police were looking for him and such was a “turning point” for him deciding not to return, given his alleged experiences in Turkey up until 2013: CB 183-184 at [24];
j)accepted that the applicant may have faced some discrimination as an Alevi Kurd, however, found that he exaggerated the frequency, nature and severity of any discrimination that he may have experienced as an Alevi Kurd, and having regard to his vague evidence and his travel history, amongst other things, did not accept that the applicant suffered discrimination involving serious harm amounting to persecution, or significant harm: CB 186 at [37];
k)in light of the applicant demonstrating some familiarity with Kurdish political parties, though still having concerns with his vague, inconsistent and changeable evidence about his political profile and interests prior to 2009, accepted that the applicant leans towards pro-Kurdish leftist parties, but did not accept that he had any attachment to or involvement with them before 2009, beyond a general preference: CB 186 at [40];
l)queried why, if he had been subject to persistent discrimination as an Alevi Kurd, and subject to police harassment (including alleged “torture” on more than ten occasions), the applicant visited Australia twice in 2009, and then returned to Turkey without seeking protection, and noted this as especially problematic since the applicant returned to the same location in Turkey, where the local police had allegedly singled him out, to which the applicant said that he felt a strong attachment to his family and his home, and implied that his problems were not so serious at that time: CB 187 at [43];
m)found that the applicant visited Australia in 2009 for personal and family reasons, and that he returned to his home area in Turkey because he did not have any concerns of future harm there (including for reasons of his religion, ethnicity or political opinion): CB 187 at [46], having also concluded that he had not experienced personally any discrimination, harassment or mistreatment prior to 2009: CB 187 at [45];
n)rejected the applicant's claim that he was more than a low key supporter of the then DSP before his visits to Australia in 2009, and noted significant concerns about his claimed political awakening in Australia: CB 188 at [49], and his activism when he returned to Turkey given the lack of detail or contextual information about his activities on his return to Turkey, leading to a finding that the applicant's political interests do not extend beyond general support for the BDP, and its various manifestations as a pro-Kurdish party over time: CB 188-199 at [54]-[55];
o)accepted that the applicant attempted to leave Turkey during 2010 and 2011 and that the Turkish authorities may have apprehended him attempting to depart Turkey on false documentation, but did not accept that:
i)the applicant did so in order to avoid persecution or significant harm;
ii)the authorities found the applicant holding pro-Kurdish documentation;
iii)the authorities accused the applicant of terrorism or supporting radical Kurdish groups;
iv)the authorities tortured the applicant, with physical or psychological effects; or
v)a doctor declined to document his injuries for fear of being targeted: CB 191 at [65];
p)addressed the applicant’s claims of abduction on May Day 2013, noting it was evident he could not recall what he had written in his statutory declaration about this claim, and despite several prompts by the Tribunal was clearly improvising, and said that it did not accept that the applicant wanted to engage in more political activities, but was afraid to do so, due to the risk of being detained, mistreated or subject to other harm, and that the applicant's interest in pro-Kurdish parties did not extend beyond general support for those parties: CB 192 at [68]-[71];
q)was not satisfied that Turkey's broader security problems and instances of communal tension, or the occasional terrorist incident, give rise to a real chance of the applicant being subject to serious harm as an Alevi, an Alevi Kurd, or as a person who generally favours pro-Kurdish parties: CB 195 at [87];
r)noted that whilst the applicant does have family living in Turkey, he has no adverse profile with the Turkish authorities or others, he is at most a nominal Alevi and a Kurd who is well-integrated into the Turkish community, and he has no political profile, and, therefore, faces no real chance of serious harm amounting to persecution, for reason of his race, religion, political preference or any other Convention ground: CB 195 at [87];
s)acknowledged that the security situation in Turkey, and more specifically in Gaziantep, has deteriorated in recent years, and the number of security incidents has risen, but that the country information does not indicate that the general security situation in Gaziantep, or more generally in Turkey gives rise to a real chance of serious harm to the applicant: CB 196 at [91]; and
t)was satisfied that the applicant’s concerns relating to Turkey’s general political and economic climate, and security conditions, impact the population generally, rather than him personally: CB 197 at [98].
The Tribunal Decision affirmed the Delegate’s Decision not to grant a Protection Visa: CB 197 at [103].
Judicial Review Application
The grounds of the Judicial Review Application are as follows:
1. The tribunal failed to properly consider all of my claims.
2. The tribunal didn't give me a chance to comment on one aspect of my claims.
Accompanying the Judicial Review Application was an affidavit sworn by the applicant annexing the Tribunal Decision.
On 6 December 2017 a Registrar of the Court made orders (“Registrar’s Orders”):
a)allowing the applicant to file and serve:
i)an amended application giving complete particulars of each ground of review;
ii)any affidavit containing any additional evidence upon which the applicant proposes to rely; and
iii)written submissions; and
b)listing the application for a final hearing at 11.00 am on 8 March 2018.
The applicant filed no further documents in the matter and, as stated at [2] above, the applicant failed to appear when the matter was called for hearing. The Court has nevertheless endeavoured to remain alert to any possible jurisdictional error when considering the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) at [100] and [112] per Mortimer J. The Minister filed written submissions to which the Court has had regard in considering the grounds of the Judicial Review Application.
Consideration
Jurisdictional error
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. Jurisdictional error may also arise by reason of the Tribunal denying procedural fairness to which an applicant is entitled under the Migration Act: Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [18] per French CJ and at [48] per Hayne, Kiefel and Bell JJ; Migration Act, ss.420 and 422B.
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
Failure to particularise
The Minister submitted that:
a)no particulars have been provided in support of the grounds in the Judicial Review Application; and
b)the failure to particularise the grounds in the Judicial Review Application is sufficient to warrant its dismissal: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited) (“WZAVW”); AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5] per Logan J.
The failure to particularise a ground of review is sufficient to warrant dismissal of a ground of review. In this case, the applicant has failed to particularise the grounds of review, and that is sufficient to warrant their dismissal: WZAVW at [35] per Gilmour J, and the cases there cited; see also CNN15 v Minister for Immigration & Border Protection [2017] FCA 579 at [21]-[22] per Gilmour J. More recently the decision in AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [37] and [59] per Barker J (“AYE16”) confirmed a decision of this Court and upheld the finding that a ground of review may be dismissed for a failure to particularise such that it did not “allege any jurisdictional error, except in the broadest terms possibly:” AYE16 at [59] per Barker J.
Although the applicant has failed to particularise his Judicial Review Application, and the Court can dismiss the Judicial Review Application on that basis alone, the Court has nevertheless addressed the two grounds raised by the applicant, so far as it can in his absence.
Ground 1
In relation to ground 1 the Minister submitted that:
a)the assertion that the claims were not properly considered suggests that the applicant is inviting the Court to engage in impermissible merits review;
b)the Tribunal set out the applicant’s claims in detail and examined them thoroughly, and detailed the broad concerns it had about the credibility of the applicant’s protection claims and his need for protection in Australia; and
c)there was ample justification for the Tribunal to form an adverse view of the applicant's credibility and not accept his evidence and claims for protection, therefore the Tribunal’s findings were open to it on the available evidence and there is an evident, transparent and intelligible justification for its decision: Li at [28] per French CJ, at [66] and [76] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J.
Ground 1 makes a broad claim the Tribunal did not consider all of the applicant’s claims. Where an applicant can establish such a claim, the Tribunal will be found to have fallen into error, and specifically in migration proceedings, the Tribunal will fall into error where it fails to consider an applicant’s claims to meet the criteria for the visa and their component integers are considerations mandatorily relevant under the Migration Act: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop CJ. The Court must also consider if the Tribunal failed to “engage in an active intellectual process directed at that claim or criteria”: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 at [45]-[46] per Griffiths, White and Bromwich JJ (“Carrascalao”).
Without particulars the Court cannot identify if the applicant purports to suggest the Tribunal failed to consider a claim, or a component integer of the visa criteria of ss.36(2)(a) or 36(2)(aa) of the Migration Act. It must be kept in mind it is the applicant whom bears the onus of proof to establish jurisdictional error: Carrascalao at [47] per Griffiths, White and Bromwich JJ. Having read the Tribunal Decision, and bearing in mind the obligation not to do so overzealously in search of error: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, the Court observes as follows:
a)the Tribunal summarised the applicant’s claims as follows: CB 180 at [7]:
7. The applicant's claims to be an Alevi Kurd, and a member/supporter of the main pro-Kurdish opposition party (BDP at the time of his last departure from Turkey). He claims to have suffered discrimination and mistreatment as an Alevi and a Kurd. He also claims that the Turkish police abducted, assaulted and threatened him on several occasions, including trying to recruit him as an informant. Since his arrival in Australia, they have come looking for him at his father's home. The applicant claims to fear persecution or significant harm as an Alevi Kurd, and due to his political opinion. He claims that Turkey's recent political unrest, and the influx into Turkey of Syrian refugees have heightened the risks to Alevi Kurds; and that the authorities will not protect him due to his race, religion and political opinion,
and the Court finds the summary reflects the substance of the claims articulated in the Statutory Declaration made by the applicant in support of his Protection Visa application: CB 51-54, the Delegate’s summary of the applicant’s claims in the Delegate’s Decision: CB 89 at [8] and the applicant’s migration agent’s pre-Tribunal Hearing and post-Tribunal Hearing submissions: CB 145-153 and CB 171-178;
b)the Tribunal expressly noted relevant inconsistencies in the applicant’s claims, and his failure to adduce any corroborating evidence of any sort: CB 182 at [18]-[20] and CB 186 at [39]-[40], and in the circumstances the adverse credibility findings were open on the evidence before the Tribunal, and as such ought not to be interfered with on judicial review: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J;
c)the Tribunal considered the applicant’s claims and experiences occurring in Turkey before 2009, after 2009 and upon his arrival in Australia as well as his experiences as an Alevi Kurd and in each circumstance specifically identified the claims which the applicant made relating to these periods of time and the fear of harm he alleges as a consequence of what occurred in these time periods as a result of his race, religion and political opinions: CB 184-194; and
d)the post-Tribunal Hearing submissions by the applicant’s migration agent: CB 171-178, emphasised the current security situation and dangers in Turkey, including reference to the conflict with Syria, the border between the two countries being in close proximity to the applicant’s home region, and the threat of militant terrorist groups including the Islamic State in Syria, and the Tribunal addressed these claims in acknowledging country information suggested the security situation had deteriorated, and finding at CB 195 at [87] and CB 196 at [91] that:
The Tribunal is not satisfied that Turkey's broader security problems and instances of communal tension, or the occasional terrorist incident, give rise to a real chance of the applicant being subject to serious harm- as an Alevi, an Alevi Kurd and/or as a person who generally favours pro-Kurdish parties…
The applicant's concerns raise, however, the broader issue of the security situation in Turkey and in his home area of Gaziantep. The Tribunal acknowledges that the security situation in Turkey, and more specifically in Gaziantep, has deteriorated in recent years, and the number of security incidents has risen. However, in the Tribunal's view, the country information does not indicate that the general security situation in Gaziantep (or more generally in Turkey) gives rise to a real chance of serious harm to the applicant (as per s.91R(1)(b) of the Act); or involves systematic and discriminatory conduct (s.91R(1)(c)); or is for one or more of the Convention reasons (s.91R(1)(a)).
In the Court’s view the Tribunal did consider all of the applicant’s claims and did so thoroughly and at some length. The Court finds that ground 1 establishes no jurisdictional error in the Tribunal Decision.
Ground 2
In relation to ground 2 the Ministers submits:
a)ground 2 asserts that the Tribunal did not give the applicant a chance to comment on one aspect of his claims though the particular aspect of the applicant's claim is not identified but, in any event, this ground has no merit;
b)the Tribunal complied with its procedural fairness obligations under Pt.7 Div.4 of the Migration Act and the applicant's migration agent filed detailed written submissions, both prior to and after the Tribunal Hearing, thus there is no evidence which suggests that the applicant was not given an opportunity to comment on any aspect of his claims; and
c)in the absence of a transcript being tendered by the applicant, the Court cannot be satisfied that the applicant was denied any opportunity to comment or that the Tribunal did not meet its obligations under s.425 of the Migration Act: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ.
The applicant’s migration agent provided post-Tribunal Hearing submissions in support of the claims made during the Tribunal Hearing. Where the migration agent was in attendance at the Tribunal Hearing and was provided an opportunity to make submissions after the Tribunal Hearing in order to provide further evidence and support for the applicant’s Protection Visa claims, it cannot be said that the Tribunal denied the applicant an opportunity to comment on some aspect of his claims. Significantly, the migration agent did not make any allegation the Tribunal did not provide the applicant a meaningful opportunity to address any claim, but rather made detailed submissions in support of the applicant’s claims of his “Kurdish ethnicity” and an update on country information in relation to the security situation in the applicant’s home region: CB 171-176. This suggests the applicant had exhausted all he wished to say in support of his Protection Visa application. The Court further notes the migration agent was provided an extension of time to provide the post-Tribunal Hearing submissions. All of this confirms, and the Court concludes, that the Tribunal gave a real and meaningful opportunity to the applicant to make his case and present evidence to the Tribunal, and indeed the entire process before the Tribunal was fair in both substance and form: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [76] per Perram J.
The Court finds the Tribunal complied with its procedural fairness obligations under Pt.7 Div.4 of the Migration Act, and no error in the SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 sense, being a failure to put to the applicant adverse information for comment (which the Tribunal appears to have done at CB 181-204 at [22], [48], [53] and [64]), is apparent from the Tribunal Decision.
The Court finds that no jurisdictional error is established by ground 2.
Otherwise
The Court also independently considered whether the Tribunal Decision might be affected by some other jurisdictional error: MZAIB at [100] and [112] per Mortimer J, but is of the view that there is otherwise no discernible jurisdictional error in the Tribunal Decision.
Conclusion and orders
The Court finds that the there is no jurisdictional error established in the Tribunal Decision, and therefore the Judicial Review Application must be dismissed.
It was for the above reasons that on 8 March 2018 the Court made the orders set out at [2] above.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 27 March 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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