DMW16 v Minister for Immigration and Border Protection [2017] FCA 1431

FEDERAL COURT OF AUSTRALIA

DMW16 v Minister for Immigration and Border Protection [2017] FCA 1431 Appeal from: Application for leave to appeal: DMW16 v Minister for Immigration [2017] FCCA 1727

File number: NSD 1311 of 2017

Judge: BROMWICH J

Date of judgment: 1 December 2017

Legislation: Migration Act 1958 (Cth) ss 424, 424A, 424AA, 441A

Date of hearing: 24 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: 15

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

Solicitor for the First Respondent: Ms N Johnson of Mills Oakley Lawyers

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

ORDERS NSD 1311 of 2017

BETWEEN: DMW16 Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: BROMWICH J DATE OF ORDER: 1 DECEMBER 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. The Tribunal had 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 was born in Bangladesh. On 28 March 2013, he arrived in Australia without a passport and was held in immigration detention until he was released on a bridging visa on 22 May 2013. On 16 July 2013, he applied for a protection visa. That application was refused by a delegate of the Minister on 28 April 2015. The delegate's decision was affirmed by the Tribunal on 3 November 2016, following a hearing on 12 October 2016. The applicant was represented at the hearing by a registered migration agent, who attended by telephone and also provided written submissions before the hearing. 3 The migration agent submitted that the applicant would face serious harm from the police, from his uncles and from supporters of the Awami League (AL) if he was returned to Bangladesh by reason of: (1) his membership of a particular social group, being his father's immediate family, in relation to a land dispute with his paternal uncles that arose because of his father's involvement in Jamaat-e-Islami (JI), a political party; and (2) his imputed political opinion in support of JI and/or his opposition to the AL because of his father's involvement with JI. 4 The detail of those claims and the supporting evidence and other material were considered in some detail by the Tribunal, including by reference to country information and the statutory tests required to be met. While it was accepted that the applicant's father was a supporter of JI in his village, the applicant's evidence was that he did not know his father's current whereabouts or situation. 5 The country information before the Tribunal indicated that there were no credible reports of relatives or associates of JI members being harassed by authorities. In any event, the Tribunal did not accept that the applicant's father's support for JI and prior low-level village activities would put the applicant or his immediate family at risk of harm for that reason alone. The Tribunal found that the applicant would not face a risk of harm from government authorities or members of AL by reason of his father's past support of JI. 6 The Tribunal found that the applicant was not a member of JI, had not been an activist or been involved in JI activities in the past, nor would he do so in the future given that history. 7 The Tribunal did not accept that the applicant was at risk of harm from his paternal uncles arising out of the land dispute, largely due to the fact that, following the escalation of the dispute in June or July 2012, the applicant had lived in the same village as his uncles for a period of six months and had not been harmed by them or the police. In any event, the Tribunal considered that, even if this conclusion was incorrect, any residual threat could be met by relocation, which would be reasonable in all the circumstances. 8 The Tribunal relied upon the same factual findings to conclude that the applicant was not in need of complementary protection. 9 On 21 November 2016, the applicant commenced judicial review proceedings in the Federal Circuit Court. The primary judge permitted him to rely on grounds contained in written submissions in lieu of having filed an amended application in accordance with a timetable fixed by a registrar. However, he was not permitted to rely upon a purported transcript of the Tribunal hearing for the reasons that it was not authenticated, it was incomplete and the applicant relied upon it to demonstrate an asserted denial of procedural fairness in relation to inconsistencies arising from questioning of him about where he was living before he left Bangladesh, which the Tribunal expressly did not rely upon. 10 The primary judge addressed nine grounds of review that were advanced before his Honour, characterising them variously as attempting to engage the Federal Circuit Court in impermissible merits review, complaints about what had happened before the delegate rather than before the Tribunal, baseless claims, unsustainable claims of the Tribunal applying the wrong tests for the application of the refugee and complementary protection criteria, or claims that otherwise failed to identify, let alone establish, any jurisdictional error. His Honour therefore found that the applicant had failed to demonstrate any arguable case fit to proceed to trial, and summarily dismissed the application. 11 On 3 August 2017, the applicant filed an application for leave to appeal from the primary judge's interlocutory orders summarily dismissing his judicial review application. That application for leave to appeal was supported by an affidavit annexing a draft notice of appeal, with the first three proposed grounds of appeal being substantially identical to those in the application for leave to appeal. A fourth ground stated only in the application for leave to appeal will be treated as a proposed fourth ground of appeal. None of those grounds were addressed by the applicant in oral or written submissions. They were comprehensively addressed in written submissions filed on behalf of the Minister. 12 Proposed ground 1 asserts a failure of the primary judge to find error on the part of the Tribunal in misapplying the test for complementary protection and failing to follow "Rules of Real Risk Test of Persecution and harm". The Minister's submissions correctly point out that the Tribunal's findings on complementary protection flowed logically from its reasons in dealing the with refugee criteria claims and that there was no basis for the allegation that the wrong test had applied. This proposed ground is devoid of merit. 13 Proposed grounds 2 and 3 assert a denial of procedural fairness by the Tribunal in not giving the applicant an opportunity to respond to all adverse findings and inconsistencies in accordance with s 424A of the Migration Act 1958 (Cth), and failing to give written notice in accordance with ss 424 and 441A of particulars of the reason, or part of the reason, for affirming the delegate's decision. Neither ground was raised before the primary judge, such that leave would be required to rely upon either ground now. As the Minister's submissions point out, the allegations are meaningless without particulars. In any event, pursuant to s 424AA, the Tribunal put to the applicant at the hearing oral particulars of information that his evidence at his entry interview that he was not a member of JI was different to the evidence he gave to the delegate and to the Tribunal that his father had made him a member of JI. In those circumstances, s 424A would not have been engaged as it ordinarily does not extend to gaps identified by the Tribunal in assessing material provided by an applicant. In any event, the Tribunal's reasons indicate that the mandatory obligations in s 424AA(b) were complied with, such that s 424A(2A) relieved the Tribunal of any residual s 424A obligations. Having regard both to the lack of merits in these points and the fact that they were not taken in the court below, leave to appeal on these proposed grounds is not appropriate and must be refused. 14 Proposed ground 4, which asserts that the Tribunal hearing was not fair, is not supported by any particulars and is contrary to the impression to be gleaned from a fair reading of the Tribunal's reasons. Doubtless, the applicant would have preferred that his account of the events upon which his claims were based had not been tested in the way that they were. However, as the primary judge pointed out when addressing the substance of this complaint, when credibility is in issue, the Tribunal may need to test the evidence, often vigorously, including by meeting the procedural fairness requirement of putting to the applicant matters bearing on credit. It follows that there is no proper foundation for this proposed ground. 15 This application for leave to appeal does not raise any issue warranting the grant of leave to appeal. The proposed appeal cannot succeed. The application for leave to appeal must therefore be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.