Federal Court of Australia

DCI16 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1284

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs, including the costs thrown away by reason of the adjournment on 17 August 2022, to be agreed or assessed.

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

REASONS FOR JUDGMENT

Ex tempore

(Revised from transcript)

O’CALLAGHAN J:

1    In this matter, the appellant appeals against orders made by a judge of the Federal Circuit and Family Court of Australia, Division 2, dated 16 September 2021. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the tribunal) dated 20 September 2016 to affirm a decision of a delegate of the first respondent (the Minister) to refuse to grant to the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth). The primary judge’s reasons set out the relevant background concerning the appellant’s circumstances and the appellant’s claims. No issue is taken with anything that is said in the primary judge’s reasons at [1]-[12].

2    The appellant is a citizen of Pakistan. He arrived in Australia on a tourist visa in June 2013 and applied for a Protection (Class XA) visa the next month. A delegate of the Minister refused to grant the visa on 5 December 2014.

3    In January 2015, the appellant lodged an application for review of the decision of the delegate by the tribunal, and in September 2016, the tribunal affirmed the delegate’s decision.

4    In October 2016, the appellant lodged an originating application for review of the decision of the tribunal in the Federal Circuit Court of Australia. It is not necessary to set out the consideration of the appellant’s claims by the tribunal, which is summarised in the primary judge’s reasons, because no issue is taken with them, but in any event, see DCI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 45 at [1]-[12].

5    The appellant in this court relies on two grounds of appeal. They are in the following terms:

1.    The Federal Circuit Court failed to find that the Administrative Appeals Tribunal fell [into] jurisdictional error in determining without a logical and probative basis that all the evidence upon which his claim was based was false.

2.    The Federal Circuit Court failed to find that the Administrative Appeals Tribunal fell [into jurisdictional error] in misapprehending the evidence and then use its erroneous findings about the evidence to make negative credibility findings.

6    Those grounds of appeal were not particularised. Mr I Warraich of Huk Legal Services, who appeared for the appellant, relied on a written outline of submission which he prepared on behalf of the appellant which was filed on 14 September 2022. It is fair to say, without intending any disrespect, that those submissions, as the Minister submitted, provide no indication as to what the alleged errors actually are. The submission under the heading “The arguments” extracts a paragraph of a decision of the Full Court in ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, and then asserts: “The application of these principles requires that close attention be given to the Tribunal’s reasons for decision”.

7    As Mr JA Barrington for the Minister submitted in his written submission, there is no attempt to connect the propositions of law cited by the appellant to the facts of this case. It is true that in the amended application for review before the primary judge, the grounds of appeal were purportedly particularised, but again, as counsel for the Minister submitted, the particulars relied on below – and in that regard, I refer to [13] of the primary judge’s reasons – amounted to little more than assertions that the tribunal’s ultimate conclusions were unreasonable or based on no evidence. The particulars relied on below, but not relied on here, did not disclose how it was said that the various conclusions reached by the tribunal were made without a logical and probative basis.

8    As to ground 1, there is no error in the primary judge’s consideration of it. It is clear from the judge’s reasons at [14]-[21] that the judge noted that the tribunal addressed and actively engaged with the claims and evidence before it. It was clearly open to the primary judge to hold that the findings of the tribunal were open on the evidence before it, and the judge was correct to observe that the appellant had “essentially asked the Court to undertake an impermissible merits review of the [appellant’s] claims”. See [21]. In relation to the second ground, the primary judge noted that the ground was an attempt at impermissible merits review, and so it was.

9    The tribunal’s credibility findings were clearly open on the evidence before it, as the primary judge found, and the primary judge’s consideration of ground 2 reveals no error. For those reasons, as the Minister submitted, the appeal must be dismissed. For the reasons I have given, I make the following orders:

(1)    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

(2)    The appeal be dismissed.

(3)    The appellant pay the first respondent’s costs, including the costs thrown away by reason of the adjournment on 17 August 2022, to be agreed or assessed.

Associate:

Dated:    10 November 2022