GFV18 v Minister for Home Affairs

[2019] FCCA 946

FEDERAL CIRCUIT COURT OF AUSTRALIA

GFV18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 946

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application to extend time under s.477 of the Migration Act 1958 (Cth) – application filed out of time – reasonable explanation for the delay – time extended under s.477 of the Act – whether there is a sufficiently arguable case of jurisdictional error made out by the grounds – whether the Tribunal complied with its statutory obligations – no jurisdictional error made out – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 476, 477

Applicant: GFV18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3445 of 2018

Judgment of: Judge Street

Hearing date: 9 April 2019

Date of Last Submission: 9 April 2019

Delivered at: Sydney

Delivered on: 9 April 2019

REPRESENTATION

Counsel for the Applicant: Mr G Foster

Solicitors for the Applicant: Sentil Solicitor & Barrister

Solicitors for the Respondents: Ms K Evans
Sparke Helmore

ORDERS

1. Time is extended under s 477 of the Migration Act 1958 (Cth) up to and including 10 December 2018.

2. Leave is granted to the Applicant to file in Court the Applicant’s outline of submissions.

3. The application is dismissed.

4. The Applicant pay the First Respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 9 April 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3445 of 2018

GFV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time under s 477 of the Migration Act 1958 (Cth) (“the Act”) in respect of proceedings commenced on 10 December 2018 seeking a Constitutional writ within the Court’s jurisdiction under s 476 of the Act in respect of a decision of the Administrative Appeals Tribunal made on 26 September 2018, affirming a decision of the delegate not to grant the applicant a Protection (XA 866) visa.

2. The Court notes that Mr Foster of counsel has appeared for the applicant and has led evidence by way of affidavit in support of the applicant’s explanation for the delay of approximately 40 days. That explanation is one that is corroborated by a letter sent by the Tribunal, dated 3 December 2018, which, on one view purports to be a fresh notification of the decision. It is in these circumstances that the Court regards the applicant’s explanation for the delay as satisfactory and at an impressionistic level, the grounds have sufficient arguability. In light of the applicant’s explanation the Court it is satisfied it is necessary in the interests of the administration of justice to extend time under s 477 of the Act.

3. The applicant was found to be a citizen of Fiji and his claims were assessed that country. The applicant claimed to fear harm by reason of being a strong supporter of the two Christian breakaway states, as well as fearing harm from the military and police and by reason of his involvement with Mereoni Kirwin.

4. The applicant arrived in Australia on 25 December 2014 on an FA600 class visa, and then departed Australia on 22 March 2015. The applicant then returned to Australia on 4 December 2015 on the FA 600 class visa. It was not until 8 Mach 2016 that the applicant applied for a Protection (XA 866) visa. On 28 January 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

5. The applicant applied for review on 4 May 2016. By letter dated 5 September 2018, the applicant was invited to attend a hearing, to take place on 25 September 2018. The applicant appeared on that date to give evidence and present arguments and was assisted with a Hindu interpreter.

6. The applicant gave evidence at the hearing in English and the Tribunal was satisfied that the applicant’s level of English was sufficient to understand the proceedings, present evidence and arguments. No suggestion has been advanced to the contrary.

7. The Tribunal identified having concerns in relation to the applicant’s credibility by reason of inconsistent, changing and unlikely evidence. The Tribunal identified that it was concerned that the applicant’s written claims and his oral claims at the hearing were inconsistent.

8. The Tribunal referred to the applicant’s written claims that he feared harm on the basis of his support for political ideals and separatism and an association with Mereoni Kirwin. The Tribunal noted, however, at the hearing the applicant when given an opportunity to say why he feared that he may suffer harm in Fiji, made no mention of any political ideals or support for separate Christian states, nor did the applicant suggest that he would be imputed with political support for, or otherwise face harm, for association with Mereoni Kirwin.

9. The Tribunal found those were not the only inconsistencies between the applicant’s claims throughout the process. The Tribunal noted that it had put to the applicant its concerns that his written claims and his oral claims at the delegate’s interview were inconsistent. The Tribunal identified having a further concern with the applicant’s late assertion at the hearing, after this was raised by the Tribunal, that he faces harm as a result of association with Mereoni Kirwin.

10. The Tribunal was also concerned with the applicant’s insistence at interview that the written claims were his actual claims, and that he later gave changing evidence in that regard.

11. The Tribunal also identified having concern in relation to the applicant’s changed evidence in response to concerns raised by the Tribunal. The Tribunal in that regard referred to the changing situation relating to the applicant’s evidence in respect of eviction, and the applicant’s evidence in relation to the changing date as to when he was detained and tortured, and the applicant’s changing evidence as to what the military said to the applicant’s family, as well as the new claim and changing evidence about reporting to a newspaper.

12. It was in these circumstances the Tribunal found the applicant was not a witness of truth. The Tribunal concluded that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which he has based his protection claims.

13. The Tribunal was not satisfied that the claims made by the applicant are true. The Tribunal did not accept the applicant’s family were evicted, nor that he complained or spoke out about this, nor that he or his father were held or harmed or reported upon by anyone, nor that they came to the adverse attention of anyone in Fiji.

14. The Tribunal did not accept that the applicant or his family experienced any threats or harm from anyone in Fiji. The Tribunal did not accept that any of the applicant’s claims following from these claims, including that as a result of the matters claimed he suffered distress or any other mental health condition. The Tribunal was not prepared to accept that the applicant has had, or has, a mental health condition. The Tribunal did not accept that the applicant had any difficulties during his work in Fiji, including with anyone taking his salary.

15. The Tribunal found the applicant was prepared to make false and changing claims to support a protection visa application. The Tribunal did not accept that the applicant faced any threats or harm in Fiji, nor that anyone has had any adverse interest in him since he has been in Australia.

16. The Tribunal did not accept the applicant faces a real chance or serious harm or a risk of significant harm from the authorities in the form of torture, brutality or any other harm for any reason.

17. The Tribunal was not satisfied the applicant came to Australia to escape any harm or any adverse interest in Fiji. The Tribunal did not accept that the applicant faces a real chance or a real risk of harm upon return to Fiji. The Tribunal was not satisfied the applicant faces a real chance or real risk of requiring access to state protection.

18. The Tribunal rejected all the various claims made and found that the applicant does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him, or on his behalf.

19. The Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Fiji, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

20. The Tribunal found the applicant did not meet the requirements of s 36(2) of the Act and affirmed the decision under review.

Before this Court

1. Mr Foster of counsel, on behalf of the applicant, relied upon the following grounds:

   GROUND 1:

   The Tribunal failed to adhere to obligations under S. 424AA of the Migration Act and so committed a jurisdictional error/s.

   Particulars

   1. At para 34 of the Decision, the AA T referred to S. 424AA of the Migration Act, and stated:

   "The Applicant told the Tribunal that the reason why he obtained his second visitor visa for Australia was because he had been detained and tortured, and he confirmed that this had occurred in December 2015. The Tribunal put to the applicant pursuant to S 424AA of the Act that according to Departmental movement records, he has been granted that visa on 24 November 2015, which was before he was detained and tortured. This could not then have been the reason why he applied to come Australia.

   2. At para 35, the AAT stated:

   "In response the applicant said that he thinks that the date he was detained and tortured is not correct. The Tribunal asked what the correct date was and instead of responding, he said "It is written in the form." The noted that he had made nom mention of being detained and tortured in his application form ... ""

   3. S 424AA of the Migration Act states:

   ‘S. 424AA Information and investigation given orally by Tribunal while applicant appearing

   (1) If an applicant is appearing before the Tribunal because of an invitation under S 425:

   (a) the tribunal may orally give to the applicant clear particulars of any information that

   the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and must

   (b) if the Tribunal does so - the Tribunal must:

   (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii) orally invite the applicant to comment on or respond to the information; and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information;

   (iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.'

   4. At no stage did the Tribunal 'ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review' in contravention of its statutory obligations under S 424AA (1) (b) (i); nor did the Tribunal 'advise the applicant that he or she may seek additional time to comment on or respond to the information' in contravention of its statutory obligations under S 424AA (1) (b) (iii), nor did the Tribunal consider the question of whether the applicant reasonably needed additional time to comment on or respond to the information (S 424AA (1) (b) (iv)), thereby denying him the opportunity of seeking additional information and/ or responding to the new information, and so denying him natural justice by not acting according to substantial justice and the merits of the case under S 420 or acting in a way that is fair and just under S 420B of the Migration Act.

   GROUND 2:

   The Tribunal failed to adhere to obligations under S. 424AA of the Migration Act and so committed a jurisdictional error/s.

   Particulars

   1. At para 38 of the Decision, the AAT referred to S. 424AA of the Migration Act, and stated:

   " ... The Tribunal put to him that it was difficult to understand this mistake. Further, the Tribunal noted that his claim to have tried to have an article published in the newspaper about his father's eviction and the Prime Minister's behaviour, and then the military visiting him at home two days later and questioning him as to why he was putting an article of the Fiji Times, was a new claim that he had not previously made before; this was put to the applicant pursuant to S. 424AA of the Act and S 423A of the Act. He said that he told the delegate at interview about his meeting with the journalist. The Tribunal said it had listened to the tape prior to putting this to him and it would re-listen to ensure that the information was correct.."

   2. The relevant sections of the Act are set out above.

   3. At no stage did the Tribunal 'ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review ' in contravention of its statutory obligations under S 424AA (1) (b) (i); nor did the Tribunal 'advise the applicant that he or she may seek additional time to comment on or respond to the information' in contravention of its statutory obligations under S 424AA (1) (b) (iii), nor did the Tribunal consider the question of whether the applicant reasonably needed additional time to comment on or respond to the information (S 424AA (1)(b)(iv)),

   thereby denying him the opportunity of seeking additional information and/or respondent to the new information, and so denying him natural justice by not acting according to substantial justice and the merits of the case under S 420 or acting in a way that is fair and just under S 420B of the Migration Act.

   GROUND 3.

   The Tribunal failed to adhere to obligations under S. 424AA of the Migration Act and so committed a jurisdictional error/s.

   Particulars

   1. At para 31 of the Decision, the AAT referred to S. 424AA of the Migration Act, and stated:

   "This however was inconsistent with his earlier claims. He had not previously claimed his father was kidnapped and held for two days by four Fijians, nor that he had made a police report; and his previous claim at interview was that during the eviction process his father was assaulted by local military officers who were representatives of government. When the delegate asked if he had made all his claims at the end of the interview, he said yes. This was put to the applicant pursuant to s. 424AA and s 423A of the Act. The Tribunal noted that the applicant had made no suggestion at hearing that his father had been evicted by and assaulted by four military officers. In response the applicant said there is a mistake, there were four Fijian men, he is not saying they are not military, but he did not know if they were military because they did not have a uniform on... "

   2. The relevant sections of the Act are set out above.

   3. At no stage did the Tribunal 'ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review' in contravention of its statutory obligations under S 424AA (1) (b) (i); nor did the Tribunal 'advise the applicant that he or she may seek additional time to comment on or respond to the information' in contravention of its statutory obligations under S 424AA (1) (b) (iii), nor did the Tribunal consider the question of whether the applicant reasonably needed additional time to comment on or respond to the information (S 424AA (1) (b) (iv)),

   thereby denying him the opportunity of seeking additional information and/ or responding to the new information, and so denying him natural justice by not acting according to substantial justice and the merits of the case under S 420 or acting in a way that is fair and just under S 420B of the Migration Act.

2. Mr Foster also provided written submissions belatedly, but nonetheless in concise form, seeking to support the respective grounds. Mr Foster confirmed that insofar as those grounds referred to a paragraph 33, that proposition was not advanced.

Ground 1

1. In relation to ground 1, Mr Foster took the Court to the Tribunal’s reasons in paragraph 34. Mr Foster submitted that the Tribunal, on the face of the Tribunal’s reasons, had not addressed each of the mandatory criteria under s 424AA of the Act in respect of the Departmental movement records that the applicant had been granted a visa on 24 November 2015. The proposition advanced by Mr Foster was that there was a reference to putting to the applicant, pursuant to s 424AA of the Act, a certain matter or information but no reference to the other requirements of the other requirements of s 424AA of the act.

2. It is for the applicant to establish a jurisdictional error. No transcript has been tendered of the hearing in the circumstance of the present case. In those circumstances, the alleged non-compliance with s 424AA of the Act is not made out. The Court is not prepared to infer that the Tribunal did not comply with requirements of the Act in circumstances where it was open to the applicant, if the applicant sought to do so, to prove whether there was any non-compliance.

3. These proceedings were the subject of orders giving the applicant an opportunity to put on affidavit evidence, submissions and an amended application, made on 21 January 2019 by a Registrar. Other than the submissions put on by Mr Foster that was the subject of a grant of leave today, no other step was taken to comply with the order made by the Registrar. The Court is not prepared to infer that there was any failure to comply with s 424AA of the Act insofar as the information concerning the grant of a visa on 24 November 2015 might be said to be information of a kind enlivening an obligation under s 424A of the Act.

4. Further, the Court is not satisfied that the movement records in relation to the grant of a visa on 24 November 2015 is information that undermines, negates or contradicts the applicant’s claims. The Court finds that it is not information of a kind that enlivens any obligation under s 424A of the Act. No obligation under s 424A of the Act is established in respect of the information identified in Ground 1. The Court is not satisfied that any non-compliance with s 424AA of the Act is made out in relation to ground 1. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, Mr Foster took the Court to the Tribunal’s reasons in paragraph 38 and, in substance, advanced the same submission in relation to the new claim that had not been previously made that was put to the applicant by the Tribunal, reportedly pursuant to s 424AA of the Act. Mr Foster submitted that there was no reference to the other mandatory requirements under s 424AA of the Act and that the Court should infer that they were not complied with.

2. The Court is not prepared to make that inference in circumstances where the applicant has not put on any evidence to establish a non-compliance with s 424AA of the Act and where the applicant had an opportunity to do so by reason of the Registrar’s orders. Further, the Court is not satisfied that the information by the applicant, in respect of the raising of a new claim, is information of a kind enlivening any obligation under s 424A of the Act.

3. The Court accepts the first respondent’s submission that it is information that the applicant gave for the purpose of the application for review within the exclusion under s 424A(3)(b) of the Act. Further, the putting of the new claim that had not previously been made is not of itself information of a kind that negates, undermines or contradicts the applicant’s claim. No obligation under s 424A of the Act is established in respect of the information identified in Ground 2. No breach of s 424AA or s 424A of the Act is made out by ground 2. Ground 2 fails to make out any jurisdictional error.

Ground 3

1. In relation to ground 3, Mr Foster relies upon paragraph 31 of the Tribunal’s reasons and the reference to s 424A of the Act in relation to the applicant having been asked by the delegate whether he put all his claims at the end of the interview and the applicant responding that he had. Mr Foster again submitted that there was no identification of compliance with the other mandatory requirements of s 424AA of the Act and that the Court should infer that there had been a failure to comply with the same.

2. In circumstances where the applicant has not put on evidence in the nature of a transcript and has had the opportunity to do so by reason of the Registrar’s orders, the Court is not prepared to infer that there was any non-compliance with s 424AA of the Act insofar as the information referred to in paragraph 31 enlivened any obligation thereunder.

3. Further, the Court is not satisfied that the reference to whether the applicant had made all his claims at the end of the interview and the applicant’s response being yes is information of a kind that undermines, negates or contradicts the applicant’s claims within the meaning of s 424AA of the Act. No obligation under s 424A is established in respect of the information identified in ground 3. The Court is not satisfied that any breach of s 424A or s 424AA of the Act is made out in relation to ground 3.

4. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-three paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 May 2019