CHE16 v Minister for Immigration and Border Protection [2018] FCA 262

FEDERAL COURT OF AUSTRALIA

CHE16 v Minister for Immigration and Border Protection [2018] FCA 262 Appeal from: CHE16 v Minister for Immigration & Anor [2017] FCCA 2078

File number(s): QUD 441 of 2017

Judge(s): LOGAN J

Date of judgment: 5 March 2018

Catchwords: MIGRATION – appeal from Federal Circuit Court – issues not raised in first instance – solicitation to merits review – appeal grounds at level of generality to be devoid of meaning – appeal dismissed

Legislation: Migration Act 1958 (Cth) s 425

Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Date of hearing: 5 March 2018

Date of last submissions: 2 March 2018

Registry: Queensland

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 19

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

Solicitor for the Respondents: Sparke Helmore

ORDERS QUD 441 of 2017

BETWEEN: CHE16 Appellant

AND: MINISTER FOR IMMIGATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: LOGAN J DATE OF ORDER: 5 MARCH 2018

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. That the appellant pay the costs of the first respondent, of and incidental to the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised From Transcript)

LOGAN J: 1 The appellant is a citizen of Bangladesh. On 20 June 2013, he applied under the Migration Act 1958 (Cth) (the Act) for that class of visa known as a Protection visa. On 26 September 2014, a delegate of the Minister for Immigration and Border Protection, who was the only active party respondent in the appeal, decided to refuse that application. 2 The appellant then sought the review of that decision on the merits by the Administrative Appeals Tribunal (the Tribunal). On 4 August 2016, the Tribunal decided to affirm the decision of the Minister's delegate not to grant to the appellant a Protection visa. 3 The appellant then sought the judicial review of the Tribunal's decision by the Federal Circuit Court. On 14 August 2017, that court dismissed, with costs, the appellant's judicial review application. It is from that order of dismissal that the appellant now appeals to this Court. 4 The grounds of appeal are these: 1. The judge of the Federal Circuit Court in his honourable judgement delivered on the 14 August 2017 failed error of law and relief under the judiciary Act. He failed to find that the Administrate Appeals Tribunal (AAT) has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt. 2. Honourable Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to find low profile political activists are mostly persecuted because of my role for the party like BNP. The Tribunal failed to understand the persecution until political killing in Bangladesh under present dictatorial role in Bangladesh. The Tribunal member concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible. 3. I was denied procedural fairness when the Tribunal member made opinion based on assumption and possibilities without any proper investigation. The Tribunal failed to assess the current situation in Bangladesh where thousands of Bangladesh Nationalist party (BNP) workers are arrested and killed by so called crossfire and harassed by the autocratic present Awami League Government & the Authority. In assessing danger to me, the Tribunal undermined the danger I will face if I am compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protect my life. 4. Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving its decision in my protection visa review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed. 5 It was submitted by the Minister that these grounds of appeal, insofar as they raised any legal error issue at all, raise issues that were not taken up in the grounds of review before the Federal Circuit Court. 6 There is some substance in this submission. That is because in the Federal Circuit Court, one ground of review alleged non-compliance with the obligation to offer a hearing found in s 425 of the Act and the other alleged that the Tribunal's reasons were either without supporting evidence or irrational. 7 If it were manifest that the Tribunal's reasons displayed a jurisdictional error, albeit one not pleaded as a ground of review but only taken up as a ground of appeal, the interests of justice might dictate that an appellant have leave to argue that ground of appeal. So it is as well to consider, in any event, the grounds of appeal, notwithstanding an absence of correspondence between them and the grounds of review in the Federal Circuit Court. That is so even though the appellant was represented by counsel and solicitor before the Federal Circuit Court. There does not appear to be any additional evidentiary question associated with the appeal grounds, which might occasion procedural unfairness to the Minister were I to embark upon the course mentioned. 8 The appellant's claim for a Protection visa involved these features: (1) He claimed that he had worked for one of the major political parties in Bangladesh, namely, the BNP. (2) He stated that he had collected people for BNP meetings and spoken at some length in support of the BNP at political meetings. (3) He also made reference to a land dispute entailing the sale of land by a person who was from the BNP. This dispute had entailed so he claimed his being attacked with his foot being injured. (4) He stated that he had run away and that while in hiding at a bus stop he had been put in contact with a people smuggler. (5) He further stated that he had collected money and then come to Australia by boat. 9 The appellant was represented by a migration agent in the proceedings before the Tribunal. The Tribunal's reasons disclose that, in the course of the hearing before the Tribunal, the Tribunal member put to the appellant for comment particular concerns held by the Tribunal member in relation to the credibility of his claim. Those reasons disclose a very close engagement indeed by the Tribunal member with the basis of the claim made by the appellant for a visa. 10 The Tribunal member, unremarkably, approached the review of the Minister's delegate's decision on the basis that he was not obliged to accept, uncritically, claims made by the appellant. It is also obvious from the Tribunal's reasons, (para 80, appeal book p 222) that the Tribunal member was well seized with the proposition that, if the appellant's account appeared credible he should, unless there were good reasons to the contrary, be given the benefit of the doubt. 11 The reasons for judgment of the learned Federal Circuit Court Judge disclosed that his Honour concluded that there had been no transgression of s 425 of the Act. That was an unremarkable conclusion. 12 After the conclusion of the hearing before the Tribunal, the appellant by his migration agent, submitted, as had been foreshadowed at the hearing, a number of documents which purported to support his claim. At the hearing, and apart from raising for comment by the appellant particular concerns held by the Tribunal member about his account in support of his claim, the Tribunal member also raised with the appellant the incidents of document fraud in Bangladesh. 13 The Tribunal's reasons disclose a thorough assessment of the claim and a careful weighing up of its merits by reference to whether, for reasons given, the appellant should be accepted as credible. The Tribunal's conclusion was that it was not satisfied in relation to the appellant's credibility for reasons which are expressed with relentless logic and some detail. In turn, that absence of credibility informed the Tribunal's decision that no weight should be given to the documents later submitted. These observations also disclose why it was that the learned Federal Circuit Court Judge found that the jurisdictional error ground of irrationality was not established. 14 Turning then to the grounds of appeal as pleaded, Ground 1 is, with respect, difficult to comprehend. Insofar as the reference to "sufficient doubt" might be thought to raise a failure on the part of the Tribunal to understand that the appellant should, all other things being equal, be given the benefit of the doubt. The Tribunal's understanding of that proposition is, as I have already highlighted, manifest in its reasons. 15 Ground 2 is really a solicitation to merits review. The core function of the Tribunal was that of review. The Tribunal embarked, demonstrably, on that task and happened to reach a view with which the appellant, I have no doubt, genuinely disagrees. But jurisdictional error is not to be found in genuine disagreement in relation to a conclusion reasonably open on the facts before the Tribunal. 16 Ground 3 alleges an absence of proper investigation by the Tribunal. As I have observed in respect of Ground 2, the core function of the Tribunal was one of review. Though inquisitorial in character, the Tribunal's primary function was not one of investigation: see: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. Of course, a failure to make an obvious enquiry readily answered on the part of a Tribunal member can taint the Tribunal's decision with unreasonableness, but that is not this case. 17 The appellant placed as such material, including his oral testimony, as he was able, before the Tribunal. The Tribunal also had before it country information of a general nature from, materially, the Australian Department of Foreign Affairs, with respect to Bangladesh. In this type of Tribunal proceeding, there is no formal onus of proof. It is just that it is in a person who would seek to have set aside or varied a decision under review a chance to put his or her best factual case, but as I have observed, the Tribunal is not obliged to accept that uncritically. 18 A statement: I came by boat in Australia only protect my life is one which might be thought to give pause for thought about the claim made by the appellant and its genuineness, but the ultimate conclusion to make about the claim, on the facts, was for the Tribunal. There is no merit in Ground 3. The fourth appeal ground is pleaded at a level of generality which, in the absence of particulars, does not supply a meaningful basis for finding error either on the part of the Federal Circuit Court or, exceptionally, and even if the point were not taken below, in the Tribunal's decision. The appellant did not give that particularity in oral submissions. At most, Ground 4 might be regarded as a repetition of the alleged failure to afford procedural fairness constituted by an alleged contravention of s 425 of the Act. But as I have already stated, the conclusion reached by the Federal Circuit Court judge on that subject was correct. 19 It necessarily follows that the appeal must be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.