FEDERAL COURT OF AUSTRALIA

BKE16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 860

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs fixed in the amount of $3,500.

3.    The name of the First Respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MIDDLETON J:

1    On 5 June 2019, I made the following orders:

(1)    The appeal be dismissed.

(2)    The Appellant pay the First Respondent’s costs fixed in the amount of $3,500.

(3)    The name of the First Respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.

These are the reasons for those orders.

2    In the matter before me, the Appellant appeals from a decision of a judge of the Federal Circuit Court dated 30 November 2018 and published as BKE16 v Minister for Immigration & Anor [2018] FCCA 3484. In that decision, the primary judge dismissed an application for judicial review of a decision of the Second Respondent (the ‘Tribunal’) to affirm a decision of a delegate of the First Respondent (the ‘Minister’) to refuse to grant the Appellant a Protection (Class XA) visa (the ‘visa’).

3    The factual background to this matter is summarised at [2]-[14] of the primary judge’s reasons. For present purposes, all that needs to be noted is that the Minister refused to grant the Appellant the visa on the basis of the Minister’s finding that the Appellant could return to and relocate within his home country of India.

4    The procedural history, as it relates to the Tribunal’s decision to affirm the Minister’s decision, is summarised at [15]-[21] of the primary judge’s reasons. Again, all that ought to be noted here is that despite the Tribunal making a number of requests for further evidence in support of the Appellant’s case over a six week period after the hearing, neither the Appellant nor his representative provided certain documents referred to in the Appellant’s submissions, the Tribunal proceeded to make its decision on the evidence before it rather than wait for unspecified documents from the Appellant or his representative.

5    Before the primary judge, the Appellant sought to demonstrate jurisdictional error in the Tribunal’s decision founded on a want of procedural fairness by reason of an asserted unreasonableness in the Tribunal proceeding to make its decision after allowing the Appellant additional time to lodge submissions in support of his application. Relevantly, the primary judge found that:

(1)    in the circumstances, the Tribunal was not obliged to obtain further information before making its decision and that it was not a case in which the Tribunal had failed to make an inquiry upon a critical fact, the existence of which was easily ascertainable; and

(2)    the Tribunal’s conduct in hearing the application, allowing the Appellant further time in which make additional submissions or provide additional evidence, and proceeding to determine the application in the absence of that additional material, did not demonstrate that it had acted in a way which should be characterised as legally unreasonable. In this regard, the primary judge found that having regard to the power that was exercised, the Tribunal’s decision did not lack an intelligible justification or rational foundation, nor was it plainly unjust or lacking in common sense. Also in this regard, his Honour could discern no error which would support the grant of relief sought in the application and accordingly dismissed the application.

6    The Appellant’s notice of appeal before this Court contained one ground of appeal (errors in original):

The Federal Circuit Court erred by finding that the Tribunal did not denying the appellant procedural fairness act unreasonably or failed to comply with ss 424, 425 or 427 of the Migration Act.

7    This ground is essentially the same as that which was before the Federal Circuit Court, save for the fact that no particulars were included as part of the notice of appeal before this Court.

8    For the reasons that follow, I find no relevant legal error in the primary judge’s reasons. I will address in turn each provision of the Migration Act 1958 (Cth) (the ‘Act’) referred to, and in doing so, I also address the Appellant’s allegations as to a want of procedural fairness and unreasonableness.

9    Section 424 confers a permissive power on the Tribunal to get information that it considers relevant. The Tribunal is not obliged to exercise this power. Accordingly, not doing so founds no breach of that section by the Tribunal: see Dissanayake v Minister for Immigration and Multicultural Affairs [2002] FCA 976 at [18] and the cases there cited. Further, the Tribunal is and was under no general duty to investigate the Appellant’s claims, and there was nothing in this case that would indicate that the Tribunal was under a duty to inquire in the sense that there was, as described by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[26], a failure to make an inquiry about a critical fact the existence of which was easily ascertained.

10    Section 425 provides that the Tribunal must, save for in certain circumstances, ‘invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review’. This is what the Tribunal did. The Appellant was invited to attend a hearing before the Tribunal in accordance with s 425 (and s 425A) of the Act and the Appellant did so with assistance from his representative and a Punjabi interpreter. He was on notice both from the Minister’s original decision and questioning from the Tribunal as to the determinative issues on review, namely the Appellant’s credibility. And he was granted by the Tribunal two extensions of time totalling approximately four weeks to provide further evidence in support of his case. The Tribunal’s obligations under s 425, and its procedural fairness obligations under Part 7, Division 4 of the Act more generally, were complied with.

11    Section 427 sets out the powers that the Tribunal may exercise at its discretion in conducting its review. I infer that by referencing s 427 of the Act, the Appellant alleges error in the primary judge’s findings in respect of the Tribunal’s exercise of discretion under s 427(1)(b) – that is, ‘to adjourn the review from time to time’. To the extent that the Appellant complains that the Tribunal acted unreasonably by making a decision without waiting for further evidence, this requires an evaluation of the evidence (including any inferences which may be drawn from that evidence): Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [41]. Having regard to that evidence, the Tribunal’s decision to proceed with making its decision was not legally unreasonable. As earlier noted, the Appellant was granted an additional two weeks to provide supporting evidence following the hearing before the Tribunal. While brief further submissions which referred to supporting documents were provided by the Appellant’s representative within that timeframe, no such documents were provided. The Tribunal then afforded the Appellant a further extension. Again, supporting documents of the kind referred to were never provided. The Tribunal deciding to proceed on the evidence before it in these circumstances is not a decision which lacks an ‘evident or intelligible justification’ or a rational foundation, and nor was it a decision that was plainly unjust or lacking common sense: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] per Allsop CJ. There is no discernible error in the primary judge’s finding in this respect.

12    The appeal should be dismissed for the reasons set out above.

13    I note that the Minister has sought a further order that the Appellant pay the Minister’s costs fixed in the amount of $3,500. Given the result, I see no reason not to make that order.

14    The Minister also requests that the name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’. I will make that additional order.

Associate:

Dated:    5 June 2019