AJW16 v Minister for Immigration and Border Protection [2017] FCA 1389

FEDERAL COURT OF AUSTRALIA

AJW16 v Minister for Immigration and Border Protection [2017] FCA 1389 Appeal from: AJW16 v Minister for Immigration [2017] FCCA 978

File number: NSD 792 of 2017

Judge: BROMWICH J

Date of judgment: 28 November 2017

Legislation: Migration Act 1958 (Cth) s 424

Date of hearing: 20 November 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 19

Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent: Mr R White of Mills Oakley

Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS NSD 792 of 2017

BETWEEN: AJW16 Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: BROMWICH J DATE OF ORDER: 28 NOVEMBER 2017

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed. 2. The applicant pay the first respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J: 1 This is an application for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia. His Honour summarily dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal that affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of a protection visa to the applicant. 2 The applicant is from Bangladesh. He claimed to have left his village in Bangladesh because of fears that he would be killed by members or supporters of the ruling Awami League arising out of his support for Jamaat-e-Islami and for the Bangladeshi Nationalist Party. He claimed to have left Bangladesh after his shop was ransacked. 3 Upon arriving in Australia, the applicant applied for a protection visa. That application was refused by a delegate of the Minister. His subsequent application for merits review to the Administrative Appeals Tribunal was unsuccessful, with the delegate's decision being affirmed on 7 February 2016. 4 The applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. He raised two grounds of review in that court alleging jurisdictional error. The first ground of review alleged failure by the Tribunal to consider each integer of his claim for a protection visa, which had been particularised in three parts. The second ground of review alleged that the Tribunal had, in effect, disregarded his submissions without "solid evidence of credibility concern". 5 As to the first ground of review, the primary judge addressed each of the three integers said to have been overlooked by the Tribunal. As to the first integer concerning the applicant's claim of being targeted by the Awami League, his Honour found that the Tribunal had considered the claim, but did not accept it. As to the second and third integers, his Honour found that the material in question had not been placed before the Tribunal and therefore could not have been overlooked. The first ground of review therefore failed. 6 As to the second ground of review, the primary judge considered the applicant's assertion of error both globally and by reference to the five individual particulars. Globally, his Honour found that, to the extent that this ground was asserting that it was not open to the Tribunal to reject claims made by the applicant, that argument could not be sustained. 7 As to the five particulars of the second ground of review, his Honour found that: (1) asserted inconsistencies between written claims and oral evidence, which were said to be due to the applicant misunderstanding the Tribunal's questions in a situation of nervousness and distress, were not supported by any identification of any question that was not understood; (2) an asserted claim that the Tribunal was required to assess the applicant's evidence in the "natural way" that a "non-legal person speaks" did not show what it was that the Tribunal had failed to do, and also presumed that the Tribunal had to assess the evidence before it in a particular way; (3) an assertion that the Tribunal had "totally misconstrued the facts" did not identify any fact that had been misconstrued; (4) an assertion that the Tribunal did not assess the applicant's evidence according to s 424 of the Migration Act 1958 (Cth) was not supported by any identification of any information that the Tribunal was said to have overlooked; and (5) an assertion that the Tribunal took into account irrelevant issues to discredit the oral and written evidence did not identify the irrelevant issues. 8 The primary judge noted that while it was correct, as asserted in a separate paragraph of the application for review, that the Tribunal did not consider the question of effective protection, that was not required because the applicant's claims were not accepted. 9 The primary judge also considered submissions made by the applicant that raised 14 matters going beyond the grounds of review and found that none of them were made out. As they were not pleaded, were all misconceived or lacked sufficient information or particulars to be intelligible and, as a result, were not successful, it is neither necessary nor desirable to consider these collateral matters further in the absence of error being at least asserted. 10 The primary judge granted summary judgment because no arguable case for relief was disclosed. 11 The application for leave to appeal contains two grounds: 1. The Federal Circuit Court of Australia did not give any weight to the supporting documents which I lodged before the Court in support of my claims. 2. The Federal Circuit Court of Australia failed to uphold my natural justice. 12 The documents referred to in ground 1 are not identified. In any event, this ground, on its face, goes to matters of weight. The primary judge considered the case that the applicant sought to advance, which went well beyond the pleaded errors and included a myriad of matters appearing only in submissions. It is impossible to discern any document that was not given the attention of his Honour required by law. The asserted denial of procedural fairness in ground 2 does not identify any topic or issue in relation to which the applicant was not given a reasonable opportunity to be heard. 13 The draft notice of appeal annexed to the affidavit accompanying the application for leave to appeal contains the following proposed grounds of appeal: 1. The Administrative Appeals Tribunal's decision affected by jurisdictional error. Particulars: The Administrative appeals tribunal failed to consider a claims or integer of claims and failed to consider whether applicant had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin. The Tribunal had no jurisdictions to make such decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958. The Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the applicant had fear of persecution in his own country of residence. 2. The Administrative Appeal Tribunal made findings without evidence. The Administrative Appeals Tribunal rejected the applicant's evidence before the Tribunal and failed to believe the applicant as a credible witness, such failure constituted a breach of s425 of the Migration Act 1958 (Cth). Particulars: The tribunal in her decision records and interview records failed to consider any evidence put by the applicant as credible, believable without any evidence. The honourable member has discredited the evidence just only the applicant's inability to remember or recall various issues and the dates at the time of hearing. 14 As an annexure to an affidavit, the applicant furnished written submissions two working days before the hearing of his application for leave to appeal. In those submissions, the applicant reproduced the text of the two proposed grounds of appeal, with the same particulars. As to the first proposed ground of appeal, he asserted a belief that the Tribunal's decision was "influenced by sufficient doubts", referring to the Tribunal's reliance on country information and asserting that this was in some way impermissible. That submission cannot be accepted. While there was some reference to country information, the applicant did not succeed before the Tribunal largely because the account he gave was not accepted on its own terms. 15 As to the second proposed ground of appeal, the applicant's written submissions summarised an aspect of the Tribunal's findings as to not being satisfied that he was of adverse interest to the Awami League, but does not assert any error in that conclusion. 16 In oral submissions, the applicant, who was not represented, unsurprisingly did not identify any jurisdictional error on the part of the Tribunal, nor appellable error on the part of the primary judge. 17 Neither of the proposed grounds, nor the written or oral submissions made by the applicant, identifies any error on the part of the primary judge. Indeed, each proposed ground raises matters that were not apparently raised with his Honour. Each ground is of the same kind that was raised in the application for review or in the submissions before his Honour, either lacking any particulars by which any meaningful assessment of possible error could be conducted, or failing to recognise the process of merits assessment required to be carried out by the Tribunal. In substance, the proposed grounds of appeal simply advance a new slew of reasons why the Tribunal might have reached different conclusions, rather than any jurisdictional error by the Tribunal possibly productive of appellable error if not found by the primary judge. 18 While establishing error on the part of the primary judge is ordinarily indispensable, on suitably rare occasions a new case is allowed to be prosecuted on appeal. This was not such a case. A careful reading of the Tribunal's reasons finds no support for any of the allegations of error made. The Tribunal's reasoning processes were unremarkable and within the ordinary ambit of the proper exercise of its jurisdiction. While harsh conclusions were reached about the applicant's credibility, this was carefully explained. No proper basis has been advanced to show that the Tribunal's approach was infected by any jurisdictional error. It follows that there is no proper reason to permit the applicant to go beyond the case advanced before his Honour and, in any event, any such grounds of appeal would fail. 19 It follows that there is no proper basis for granting leave to appeal. The application for leave to appeal must therefore be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.