FEDERAL COURT OF AUSTRALIA
CXB16 v Minister for Home Affairs [2019] FCA 779
ORDERS
Appellant | ||
AND: | First Respondent ADMINISTRATION APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(DELIVERED EX TEMPORE AND REVISED)
RANGIAH J:
1 This is an appeal against a judgment of the Federal Circuit Court given on 5 September 2018 dismissing an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent not to grant the appellant a Protection Visa.
2 The appellant is a citizen of Bangladesh who arrived in Australia in March 2013. He made an application for a Protection Visa that the delegate refused on 29 October 2014. The appellant then applied for review to the Administrative Appeals Tribunal. He appeared before the Tribunal, but the member was unable to finalise the review. The Tribunal was later reconstituted and the appellant attended a second hearing before another member. On 15 September 2016, the Tribunal made its decision affirming the delegate’s decision.
3 Before the Tribunal, the appellant claimed to fear persecution on the basis of his, and his family’s, political opinion. The appellant claimed that he and his father were supporters of the Bangladesh Nationalist Party (BNP), and that his cousin was secretary of a branch of the BNP or secretary of its student wing. The appellant claimed that he supported the BNP and that his father was a community leader who supported a charity linked to the BNP. The Tribunal found that the family were local landowners of some standing who were known to support the BNP, but did not accept that this had any adverse impact on the appellant.
4 The appellant claimed this his cousin had ceased political activities in 2008 and had gone into hiding for fear of the rival Awami League (AL). The Tribunal accepted that the appellant may have a cousin who had been involved in BNP politics, but concluded that the appellant had exaggerated and misconstrued his relationship with his cousin. The Tribunal did not accept that the AL or anyone else perceived the appellant to be a political opponent because of his relationship with his cousin. The Tribunal also rejected the appellant’s claim that the AL was pursuing him because they believed he had information about his cousin’s whereabouts.
5 The appellant claimed that, in mid-2012, about six months before he left Bangladesh, he was attacked by four or five masked men. He claimed that they accused him of being a BNP supporter and threatened to kill him and his cousin. The Tribunal did not accept that there had been any politically motivated attack on the appellant. The Tribunal rejected evidence that the appellant went into hiding after the alleged attack and that he was sought by AL activists. The Tribunal found that the appellant left Bangladesh for reasons unrelated to his claims for persecution. The Tribunal also rejected his claims that, since his departure, AL activists have continued to look for him and have harassed his family members in Bangladesh.
6 The Tribunal did not accept that the appellant had been of any adverse interest to AL activists, or that he and his family members had been attacked or pursued, or that he was of any ongoing interest to AL activists. The Tribunal concluded that the appellant did not meet the refugee criterion in s 36(2)(a) of the Migration Act 1954 (Cth). It also concluded that he did not meet the complementary protection criteria under s 36(2)(aa) of the Act.
7 The appellant then applied for review of the Tribunal’s decision to the Federal Circuit Court. The appellant’s grounds of application were as follows:
1. An essential condition for the exercise of the Tribunal's power had not occurred or been satisfied.
Particulars
(a) In the Tribunal's decision, the Tribunal stated the range of material that was before it (review material). Court Book, 201 (141.
(b) The Migration Act 1958 (Migration Act) identifies the procedure to be adopted for the review before it.
(c) The Migration Act required that the Tribunal consider s. 424A(l) of the Migration Act, and comply with the requirements in it, in advance of the hearing(s) involving the Applicant.
(d) There is no evidence that the Tribunal did that.
(e) The review material included information that was not excluded under s. 424A(3).
(f) In the hearing(s) the Tribunal did not otherwise comply with s. 424A(2A).
(g) The Tribunal did not act in a way that was fair or just.
2. The Tribunal failed to discharge its core function to review the decision.
Particulars
(a) All of the particulars in Ground I are repeated.
3. The Tribunal constructively failed to consider the Applicant's claims and/or failed all of the issues relevant to its review and/or misunderstood the review it was to und and/or otherwise committed an error of law.
Particulars
(a) All of the particulars in Ground I are repeated.
8 The Federal Circuit Court judge observed that, under all three grounds, the appellant alleged that the Tribunal had failed to comply with s 424A(1) of the Act. Relevantly, that provision requires the Tribunal to give an applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. The primary judge held, in substance, that there was no information which fell into the category of information covered by s 424A(1). Accordingly, his Honour held that the grounds relied upon were not established and dismissed the appeal.
9 In his notice of appeal before this Court, the appellant relies upon the following grounds:
The applicant claims that in making decision, the Administrative Appeals Tribunal acted without jurisdiction or in access of jurisdiction when it failed to take account relevant consideration. The Tribunal failed to follow procedural prerequisites The Tribunal made decision on irrelevant finding of facts. The Tribunal made decision on irrelevant findings of facts. The Tribunal failed to fulfil its review function by not dealing with the particulars and specific issues directly relevant to the applicant's claim for protection visa.
Particulars:
Sub Paragraph of 65(1 )(a)(ii) of the Migration Act 1958 requires the decision make in respect of applicant's primary application for a protection visa to make determination as to whether criteria for the grant of the visa prescribed by the Act or the Regulations made there under were satisfied.
(Errors in the original.)
10 The appellant is self-represented in the appeal and appeared at the hearing with the assistance of an interpreter. He has not filed any written submissions. In his oral submissions, he repeated his account of events in Bangladesh supporting his claim for protection. He maintained that he had told the Tribunal the truth. The appellant did not identify any error on the part of the Tribunal or the Federal Circuit Court, other than that the Tribunal erred by failing to accept his evidence.
11 A mere assertion that the Tribunal erred by failing to accept an applicant’s evidence does not establish jurisdictional error. In order to succeed, it is necessary for the appellant to demonstrate an appealable error on the part of the Federal Circuit Court. In practical terms, it is usually also necessary for an appellant to demonstrate jurisdictional error on the part of the Tribunal—otherwise the error by the Federal Circuit Court may not be material. The question of the credibility of an appellant’s evidence is a matter for the Tribunal to decide. It is not open to this Court to simply substitute a different view of the appellant’s credibility to the view taken by the Tribunal: see Minister for Immigration and Ethnic Affairs v Wu Shan Ling (1996) 185 CLR 259 at 272; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 at [67]. The appellant has not established jurisdictional error on account of the Tribunal’s failure to accept his evidence.
12 The grounds set out in the appellant’s notice of appeal are bare assertions of error by the Tribunal. In the absence of particularisation of the relevant considerations not taken into account, the procedural prerequisites not followed, the irrelevant facts, the issues not dealt with and the error concerning s 65(1)(a)(ii) of the Act, the appeal cannot succeed.
13 It may be that the appellant is relying on the same grounds as before the Federal Circuit Court. Those grounds coalesced into a ground that the Tribunal failed to comply with s 424A(1) of the Act by failing to give the appellant clear particulars of any information the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The information the Tribunal failed to give particulars of was said to be contained in the material listed at paragraph 14 of the Tribunal’s reasons.
14 Each item listed by the Tribunal, apart from two items, consisted of information provided to the Tribunal by the appellant. Under s 424A(3)(b), s 424A(1) did not apply to that information.
15 One of the items listed in paragraph 14 of the Tribunal’s reasons was notes from the appellant’s irregular maritime entry interview in Darwin on 3 April 201 and an audio recording. However, the Tribunal did not refer to the content of that material or express any reliance upon those contents. It can be inferred that the Tribunal did not consider that information to be part of the reasons for affirming the decision, so that s 424A(1) did not apply to it.
16 The Tribunal relied upon country information concerning Bangladesh. However, the effect of s 425A(3)(b) was that s 425A(1) did not apply to that information.
17 The appellant has not demonstrated any error on the part of the Federal Circuit Court. The appeal must be dismissed with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. |
