JNMK v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 618

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

JNMK v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 618

File number:	PEG 184 of 2022
Judgment of:	JUDGE RILEY
Date of judgment:	20 April 2023
Catchwords:	MIGRATION – protection visa – whether the Tribunal published reasons for decision that included the applicant’s actual name – whether the Tribunal failed to allow the applicant to make a complementary protection claim or failed to consider such a claim.
Legislation:	Migration Act 1958 ss.424A, 431, 501
Division:	Division 2 General Federal Law
Number of paragraphs:	27
Date of hearing:	20 March & 20 April 2023
Place:	Melbourne
Advocate for the Applicant:	In person
Counsel for the First Respondent:	Cobey Taggart
Counsel for the Second Respondent:	No appearance
Solicitor for the First and Second Respondents:	Australian Government Solicitor

ORDERS

PEG 184 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

JNMK
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	20 APRIL 2023

THE COURT ORDERS BY CONSENT THAT:

1.The applicant have leave to file and serve his affidavit dated 17 April 2023.

THE COURT ORDERS THAT:

2.The application filed on 16 September 2022 be dismissed.

3.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,853.

AND THE COURT NOTES THAT:

A.The applicant in oral evidence affirmed his affidavit dated 17 April 2023.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE RILEY:

INTRODUCTION

1. This is an application to review a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is a citizen of Zambia. At the time of the Tribunal’s decision he was 34 years old. He married an Australian citizen in Zambia and has two daughters who are both Australian citizens.

3. The applicant first came to Australia as the holder of a student visa on 7 October 2008. He was later granted a provisional partner visa which ceased on 15 June 2018. A permanent partner visa was refused under s.501 of the Migration Act 1958 (“the Act”). The applicant sought review of that refusal by the Tribunal and then appealed to the Federal Court which dismissed his application on 6 August 2021.

4. The applicant then applied for a protection visa on 26 October 2021. He claimed that he was at risk of harm in Zambia from family members as he would be the heir to his father’s estate and the family members believed that they ought to inherit it. He claimed that his brother had been killed by family members for reasons associated with inheritance.

5. The applicant appeared before the Tribunal at a hearing. The applicant provided further information to the Tribunal following the hearing. The Tribunal also invited the applicant to respond to certain information pursuant to s.424A of the Act.

6. The Tribunal gave detailed reasons, but largely did not accept the credibility of the applicant’s claims for reasons which the Tribunal explained. The Tribunal also noted that the applicant returning to Zambia with his wife was not behaviour consistent with his claims. 

7. The Tribunal was not satisfied that the applicant faced persecution in Zambia and was not satisfied that Australia owed the applicant protection under the complementary protection provisions.

8. The application to this court was filed late, but an extension of time was granted at the hearing on 20 March 2023. The hearing on that date was adjourned until today to allow the applicant to file evidence about ground 1.

9. The application filed had four grounds. However, during the hearing on 20 March 2023, the applicant told the court that he only wished to rely on grounds 1 and 4.

   GROUND 1

10. Ground 1 in the application is as follows:

    The AAT did not according to the Migration Act 1958 (Cth) suspend the Applicant name but in fact release his name in the decision record and in public.

11. This seems to be a ground based on s.431 of the Act, which provides that the Tribunal may not publish a decision that would lead an applicant to be identified.

12. At the hearing on 20 March 2023, the applicant explained that a friend had found the Tribunal decision in respect of him on the internet and it contained his actual name. The court adjourned the matter until today to enable the applicant to put on affidavit material regarding the publication of the reasons of the Tribunal in his case and allow the Minister to file anything in reply.

13. The applicant filed an affidavit late, but the Minister did not object to the late filing. The affidavit said that the applicant is the applicant in these proceedings and that he is authorised to make the affidavit. The applicant said he is self-represented and then said in paragraph 3 that:

    I realized that on the Administrative Appeals Tribunal Decision was published by my original name and not only case number as discreet to prevent my country’s Authority of recokognising that I applied for protection Visa in Australia. (errors in original)

14. The applicant was cross-examined. He said that his friend found the mistake. He agreed that he had given his friend a copy of the decision that he had been provided by the Tribunal. He then said that his friend found his name on a website. He said that he found the decision on the Tribunal’s website but then said that he did not know about it. He then said, ultimately, that he believed his name was on a website because a friend told him that.

15. There was also an affidavit provided to the court by Christopher Matthies who is the Chief Legal Officer at the Tribunal. That affidavit was affirmed on 11 April 2023.

16. Mr Matthies said that he found in the Tribunal’s records that there were two versions of the Tribunal’s decision in the applicant’s case. The first was the original version produced by the Tribunal member and was not redacted. Mr Matthies said it was given to the review applicant by email on 2 August 2022 and that version appears in the court book. 

17. Mr Matthies said the second version of the decision was prepared for publication. It included catchwords, legislation and case citations, and a statement that there had been redactions.  There were, in fact, redactions. That version of the Tribunal decision was also in the court book.

18. Mr Matthies said further in his affidavit that an email was sent from the Tribunal to attaching the second version of the Tribunal’s decision record. Mr Matthies said that he had not been able to find anything in the Tribunal’s records to indicate that an unredacted version of the Tribunal’s decision record was sent to for publication at any time. The applicant was given the opportunity to cross-examine Mr Matthies but, ultimately, he did not have any questions that he wished to ask.

19. Taking into account all the evidence before the court, I am not satisfied that the Tribunal made any error consisting of disclosing identifying information to the public via or otherwise. I accept Mr Matthies’ evidence that two versions of the reasons for decision were created. One version with the applicant’s identifying details was sent to the applicant himself and another version without the identifying details was sent to

20. The applicant’s evidence about this issue was confused and vague. Sometimes, he said he found the unredacted version on the internet. Sometimes, he said a friend found it.  He did not name the friend. He did not get an affidavit from the friend. He did not say with any confidence at all that he personally had ever seen an unredacted version on the internet. There is too little reason to think that there may have been a mistake on the part of the Tribunal as alleged in this case. 

21. Ground 1 has not been made out.

    GROUND 4

22. Ground 4 in the application is as follows:

    The AAT did not apply the complementary protection visa rules on the applicant’s application.

23. In fact, the Tribunal dealt with the issue of complementary protection in detail under the heading “Does the Applicant Meet the Complementary Protection Criterion”. Under this heading, there followed paragraphs 151 to 167 where the Tribunal dealt in detail with the question of complementary protection.

24. In oral submissions, the applicant said he should have been allowed to make a complementary protection claim. He was allowed to make such a claim and it was considered by the Tribunal.

25. To the extent that the ground might be understood to mean that the Tribunal made some kind of error in applying the complementary protection provisions, I have read the Tribunal’s decision, and particularly the parts of it that deal with complementary protection.  I have been unable to detect any jurisdictional error in the Tribunal’s consideration of that issue.

26. This ground is not made out.

    CONCLUSION

27. All in all, I am not persuaded that the Tribunal made either of the errors alleged. I have looked at the material before the court and I have been unable to find any error that could amount to a jurisdictional error. Consequently, the application will be dismissed. 

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Riley.

Associate:

Dated:       20 April 2023