FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSCU v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2542 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of Delegate of the Minister for Immigration not to grant Protection visa to the applicant – applicant alleges Administrative Appeals Tribunal decision affected by bias and relied too heavily on the findings of the Delegate – no bias affecting Administrative Appeals Tribunal decision and hearing before Administrative Appeals Tribunal a hearing de novo and not influenced by decision of the Delegate – jurisdictional error not made out – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 414, 415 Evidence Act 1995 (Cth), s.43 |
| Applicant: | SZSCU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1995 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 19 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr J. McGovern |
| Solicitors for the First Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 26 July 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1995 of 2016
| SZSCU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Bangladesh aged 38 years, having been born on 2 December 1980.
By Application filed in this Court on 26 July 2016 he seeks to quash and have re‑determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 29 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 7 November 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant lodged an application online for a Maritime Crew (Class ZM) (Subclass 988) visa (Maritime visa) on 17…
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- Case
- [2019] FCCA 2542
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the AAT's decision was vitiated by jurisdictional error, specifically in relation to allegations of bias and whether the hearing before the AAT was conducted as a de novo proceeding, independent of the Delegate's decision. The court was required to determine if the applicant had established that the AAT's process was flawed in a manner that constituted a jurisdictional error.
Dowdy J found that the applicant had not established bias on the part of the AAT. The court reasoned that the hearing before the AAT was a de novo hearing, meaning it was a fresh consideration of the matter, and was not improperly influenced by the Delegate's prior decision. The applicant's claims, as detailed in his statutory declaration and the Delegate's record, were considered in light of the criteria for a protection visa, which include the Refugee Criterion (s 36(2)(a) of the Migration Act 1958 (Cth)) and the Complementary Protection Criterion (s 36(2)(aa) of the Migration Act 1958 (Cth)). The court concluded that no jurisdictional error had been made out.
The application for judicial review was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Applicant’s claims for protection in relation to the present Protection visa application were set out in his statutory declaration dated 23 July 2012 (Statutory Declaration), which at [1] admitted that he had “made a non-genuine claim” in his first Protection visa application (see [5(a) – (d)] above) due to the insistence of his previous migration agent. This Statutory Declaration had been sworn after the Delegate had refused the first Protection visa application and two days before the RRT held its hearing on 25 July 2012. The Statutory Declaration went on to claim in substance as follows:a)the Applicant was married in 2008, has a daughter and practises Sunni Islam;b)his father is a supporter of the Jamaat-e-Islami (JI) and in 1994 the Applicant as a student joined its student wing, Islami Chhatra Shibir (ICS), and then the JI itself when he graduated with a Bachelor of Science degree in 2000;c)the ICS became a banned organisation, but he continued to work for the ICS in his village of Noakhali, for which work he was targeted by Awami League (AL) supporters;d)in 2000 he participated in a procession protesting the killing of a political colleague, for which participation he was threatened by AL members;e)in the February 2002 election he was the Centre Secretary of the Election Committee of the JI and was involved in election campaigning to promote JI political views;f)following that election, he was targeted by an AL member;g)in 2004 he was employed by a pharmaceutical company formed by the JI, and worked there until January 2007;h)in May 2008, he joined the Livestock Transport and Trading Company, Kuwait, the operators of the livestock carrier MV Al Shuwaikh;i)he had shore leave in Bangladesh from February 2009 to July 2009;j)he had shore leave in Bangladesh from June 2010 to October 2010; andk)he fears returning to Bangladesh. For completeness I note that in the summary of the Applicant’s claims appearing in the Decision Record of the Delegate in the present Protection visa application it is recorded that the Applicant’s claims also included:a)the AL threatened, harassed and physically tortured him and his family;b)if he returns to Bangladesh, the AL or government authorities such as the Rapid Action Battalion and police will arrest and/or kill him because he was involved in Bangladesh Nationalist Party politics; andc)the police and government authorities cannot protect him because they will listen to the AL. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....