ABB16 v Minister for Immigration

[2016] FCCA 755

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABB16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 755

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credit findings – whether the applicant was denied natural justice by the Tribunal – whether the Tribunal properly considered the applicant’s circumstances – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424AA, 476

Applicant: ABB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 15 of 2016

Judgment of: Judge Street

Hearing date: 6 April 2016

Date of Last Submission: 6 April 2016

Delivered at: Sydney

Delivered on: 6 April 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms B Rayment
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 15 of 2016

ABB16

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 10 December 2015 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Nepal and his claims were assessed against that country.  The applicant applied for a business visitor stream FA600 visa on 20 June 2014.  That visa was granted on 26 June 2014.  The applicant arrived in Australia on 19 July 2014.  The day before that visa expired, which would have been 19 August 2014, the applicant applied for protection. 

3. In summary, the applicant claimed to fear harm from Maoists.  The applicant claimed to have been abducted in 1998, although he managed to escape and said he was later accused by Maoists of stealing their money.  The applicant moved to India and returned to Nepal in 2006.  The applicant alleges the Maoists continued to threaten him and demand he repay money. 

4. The Tribunal found that the applicant was not a credible witness. The Tribunal provided reasons in support of the adverse findings of credit. The Tribunal took into account, in particular, the finding that the applicant had resided in Nepal for eight years between his return from India and his coming to Australia and found that the applicant was never targeted for harm by Maoists in that period. It was in those circumstances the Tribunal found that the criteria, under ss.36(2)(a) and 36(2)(aa) was not made out and affirmed the decision of the delegate.

5. On 3 March 2016, a Registrar of the Court fixed the matter for hearing and provided a timetable providing an opportunity for the applicant to file an amended application, affidavit evidence and submissions.  No such documents were filed.  The grounds of the application are as follows:

   1. From the beginning of my interview at The Tribunal, The interviewing Member only accused me of telling lies and did not give me a single chance to explain that I was not telling any lies. Therefore I have not been given any chance or benefit of the doubt.

   2. The Tribunal seemed to have already made a decision on my application before giving me an opportunity to speak, therefore my interview was almost one way where the Tribunal member only spoke most and did not provide me ample opportunity to speak. I was not given Natural Justice.

   3. The Tribunal did not explore or investigate my circumstances well. Similarly the Tribunal did not consider the hardship and the difficulties caused by two mega earthquakes in my country in April and May 2015. The Tribunal did not consider the effects of the illegal Trade Blockade imposed to my country by The Government of India. This proves that Nepal and India do NOT have a mutual and good relationship. In such circumstances, the Tribunal only insisted me that I should go and live in India. It did not consider that I have already made my best attempts to live and survive in India. However the Tribunal did not consider my efforts but insisted that I should go and live in India. I believe the treatment I was given was against International Law and the Non-refoulement policy of Australia.

6. At the commencement of the hearing, the Court explained that the hearing involved determining whether the Tribunal’s decision was affected by legal error.  The Court indicated that, if satisfied, that the decision was affected by relevant legal error, the decision of the Tribunal would be set aside and if not satisfied that the Tribunal’s decision was affected by relevant legal error, the applicant’s application would be dismissed.

7. The Court explained that it would identify, first, the evidence and then hear submissions from the applicant and then submissions from the first respondent and then submissions from the applicant in reply.

8. The Court indicated that it was explaining these matters so that the applicant understood the nature of the proceedings.  The applicant confirmed that the understood what had been explained. 

9. From the bar table, the applicant complained that he was not believed and that he did not feel he had been given due justice.  The applicant said he did not want to go back to India and maintained that his life would be at risk if returned to Nepal. 

10. In relation to ground 1, the applicant was invited by letter, 2 October 2015, to attend a hearing, to give evidence and present arguments to take place on 17 November 2015. The applicant appeared on that date before Tribunal to give evidence and to present arguments and was assisted by an interpreter. It is clear from the Tribunal’s reasons that the Tribunal raised with the applicant issues concerning the applicant’s credibility as a result of his interview with the delegate, consistent with the requirements under s.424AA of the Migration Act 1958. 

11. No transcript was tendered in these proceedings and there is nothing from the structure and content of the Tribunal’s reasons to support the proposition that the applicant was not given a genuine hearing or was not given a chance to address the issue of his credibility.  It was a matter for the Tribunal to determine the applicant’s credit. 

12. The adverse finding of credit was open on the evidence before the Tribunal and cannot be said to lack an evident and intelligible justification.  It was appropriate for the Tribunal to raise with the applicant the issue of his credibility and the raising of the applicant’s credibility, as an issue, is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.  Ground 1 fails to make out any jurisdictional error.

13. In relation to Ground 2, the reasons of the Tribunal are inconsistent with the allegation that the applicant was not given an opportunity to speak. The procedure referred to above in relation to s.424AA identified by the Tribunal at para.20 of its reasons is also inconsistent with the allegations. On the material before the Court, there is no substance in the contention that the applicant was not given an opportunity to speak. The generalised assertion of a denial of natural justice is unsupported by any identified alleged unfair conduct.

14. The adverse findings in relation to the applicant’s credit did not give rise to denial of natural justice.  It was for the Tribunal to determine whether or not to accept the applicant’s credit.  The allegation that the applicant was not provided with ample opportunity to speak is inconsistent with material before the Court, given the invitation, dated 2 October 2015, to appear before the Tribunal to give evidence and present arguments as well as the fact that the applicant did so appear on that day and is recorded by the Tribunal as having appeared “to give evidence and present arguments”.

15. From the structure and content of the Tribunal’s reasons, it appears that the applicant was given a fair opportunity to address the credit issues open on the material before the Tribunal.  Ground 2 fails to make out any jurisdictional error. 

16. In relation to Ground 3, it is clear that the Tribunal took into account the applicant’s circumstances.  There was no reference by the applicant in the claims advanced to the mega-earthquakes or the illegal trade blockade and they are not matters that could give rise to any jurisdictional error by the Tribunal. 

17. The proposition that the Tribunal says that the applicant should go back to India is erroneous and the applicant’s concerns, as to his ability to live in India, are equally misconceived.  The applicant’s erroneous belief does not identify any jurisdictional error.

18. The structure and content of the Tribunal’s reasons are consistent with the Tribunal determining the matter according to law.  I accept the first respondent’s submission that nothing said by the applicant from the bar table identified any basis upon which there could be said to be jurisdictional error by the Tribunal.

19. The application fails to make out any jurisdictional error.  The application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  28 April 2016