AAB16 v Minister for Immigration

[2016] FCCA 1904

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAB16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1904

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause hearing – whether the Tribunal denied the applicant procedural fairness – whether the decision of the Tribunal was unreasonable – whether the Tribunal failed to take relevant considerations into account – no arguable jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 476

Federal Circuit Court Rules 2001, r.44.12

Cases cited:
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: AAB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1 of 2016

Judgment of: Judge Street

Hearing date: 25 July 2016

Date of Last Submission: 25 July 2016

Delivered at: Sydney

Delivered on: 25 July 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Ms N Maddocks
DLA Piper

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1 of 2016

AAB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 9 December 2015 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Nepal and his claims were assessed against that country.

2. The applicant arrived in Australia on 14 March 2002 on a subclass UC 456 business visa.  It was on 23 April 2002 that the applicant applied for a protection visa.  The applicant’s first application for a protection visa was refused.  Consistent with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the applicant made a second application for protection on 20 November 2013 on the grounds of complementary protection. The applicant claimed to fear harm by reason of holding an opinion or being perceived as holding an opinion against the Maoists and by reason of his alleged political involvement. On 23 May 2014 the delegate refused the applicant’s application.

3. On 19 June 2014 the applicant applied to the Tribunal for review. On 25 March 2015 the Tribunal sent the applicant an invitation to appear before the Tribunal on 13 May 2015. The applicant appeared before the Tribunal on that date to give evidence and present arguments and was represented by a migration agent. Relevantly, the Tribunal made adverse credit findings in relation to the applicant. The Tribunal identified the relevant law in relation to complementary protection and set out the applicant’s claims and evidence. The Tribunal did not accept any of the applicant’s claims of having been involved in politics or having an interest in Nepalese politics as being true. 

4. The Tribunal did not believe that the applicant would involve himself in any political party on return to Nepal as claimed and that the applicant said this only so as to have a claim of why he fears returning.  The Tribunal found the applicant’s claim in that regard to be opportunistic and made for the purpose of extending his stay in Australia.  The Tribunal found that the applicant had no fear or concern of return apart from the fact that he has not made enough money in Australia, although he has been here a long time.  The Tribunal found that the applicant was not a credible witness.  The Tribunal found that it did not accept any of the applicant’s claims of involvement with or his membership of the CPN (UML) to be true.  The Tribunal did not accept the documents the applicant produced to show that he had such an association to be true and did not accept that anyone would consider that the applicant was so involved.

5. The Tribunal did not believe that anyone would consider that the applicant was a Maoist or a supporter of the Maoists. The Tribunal found that it did not accept that the applicant was wanted by or of concern to the authorities for any reason in Nepal. It was in those circumstances that the Tribunal found that the applicant was not a person in respect of whom Australia had a protection obligation under s.36(2)(aa) of the Migration Act 1958 and affirmed the decision of the delegate.

6. On 3 March 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.  At the commencement of the hearing today the Court explained to the applicant that the matter was fixed for a show cause hearing.  The Court explained to the applicant that this was to determine whether the applicant had an arguable case.  The Court explained that the question of whether the applicant had an arguable case depended upon whether there was a reasonable argument that the Tribunal’s decision was affected by relevant legal error. 

7. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that, in summary, this meant the Court was considering whether there was a reasonable argument that the Tribunal’s decision was not made lawfully or was unfair. 

8. The Court explained that, if satisfied there was a reasonable argument of relevant legal error, the Court would fix the matter for hearing on another day.  The Court explained that, if not satisfied there was a reasonable argument that the Tribunal’s decision was affected by relevant legal error, it would dismiss the application.  The Court explained to the applicant that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

9. The grounds of the application are as follows:

   1. I am not satisfied with the Tribunal Member's decision as the Tribunal Member had made an error of law by heavily relying on its arbitrary views towards my claims and by failing or ignoring to give me justice according to the scope of complementary protection visa.

   2. I argue that the Tribunal Member has not made a well-balanced decision in my case and I believe the Tribunal Member made a legal error in concluding that there is no real risk of being banned upon my return to Nepal when there was no evidence before it to that effect.

   3. It is argued that the Tribunal Member completely ignored my circumstances and failed to act according to law.

10. From the bar table, the applicant maintained that the documents he provided to the Tribunal were correct and maintained that he was dissatisfied with the decision and that he could not go back to Nepal.  I accept the submission of the first respondent that nothing said from the applicant from the bar table identified any arguable case of jurisdictional error.  To the extent that the Tribunal made adverse credit findings in relation to the applicant, those adverse credit findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.

11. The Tribunal’s adverse findings in relation to the applicant’s documents, suggesting that he had a political association, were also open to the Tribunal.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error. 

12. In relation to ground 1 of the application, the applicant’s dissatisfaction with the views of the Tribunal does not identify any jurisdictional error. The Tribunal correctly identified the relevant law and, on the face of the material before the Court, complied with its statutory obligation. I am satisfied that the applicant had a genuine hearing.  There is nothing in the material before the Court to establish any denial of procedural fairness by the Tribunal to the applicant. Nothing in ground 1 identifies any arguable jurisdictional error. 

13. In relation to ground 2, it was a matter for the Tribunal to make findings in relation to the applicant’s evidence. It was for the applicant to make out his alleged fears. It was open to the Tribunal to make adverse credit findings and the proposition that there was no evidence before the Tribunal to make adverse findings is not correct. The Tribunal’s decision appears to be an orthodox review of the applicant’s claims and evidence and no arguable jurisdictional error is made out by ground 2. 

14. In relation to ground 3, it cannot be said that the Tribunal failed to address the applicant’s claims and evidence. Nothing in ground 3 identifies any arguable jurisdictional error. 

15. I accept the submissions of the solicitor for the first respondent that, in substance, the grounds invite an impermissible merits review and did not disclose any arguable jurisdictional error.  I am satisfied that the application fails to disclose any arguable jurisdictional error.  I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am satisfied that this is an appropriate case in which to apply r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 July 2016