ABN15 v Minister for Immigration

[2015] FCCA 747

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABN15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 747

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.91R(1), 91R(2), 36(2A)(aa)

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: ABN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 484 of 2015

Judgment of: Judge Street

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

The Applicant appeared in Person

Solicitors for the Respondent: Ms K. Hooper
DLA Piper

ORDERS

1. Proceedings be summarily dismissed.

2. Applicant to pay First Respondent’s costs fixed in the sum of $1000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 484 of 2015

ABN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of a decision of the Tribunal made on 6 February 2015 affirming a decision not to grant the applicant a Protection (class XA) visa.

2. The application identifies the following grounds:

   1. The Refugee Review tribunal denied me procedural fairness in that it misconstrued the interpretation of the Refugees Convention done at Geneva on 28 July 1951 and in particular Article 1A(2) the Convention and section 5 and 91R(1) of the Migration Act 1958.

3. The application also identifies on the first Court date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

4. The Court raised with the applicant, who is in detention that the Court was concerned that the grounds do not identify any arguable jurisdictional error and that the matter may be appropriate to be dealt with under the Court’s summary jurisdiction.  The application identified that he was self-represented and that he was working on new grounds of an application to identify a jurisdictional error.

5. The Court identified that it would not grant an adjournment unless there was utility in doing so because it was satisfied that there is an arguable jurisdictional error.  There is no utility in granting an adjournment in respect of proceedings that are doomed to failure as it will only add to the increased costs of the parties and utilise limited court time.  For the reasons given in this decision, I am clearly satisfied that the proceedings are doomed to failure.

6. I take into consideration in respect to the Court’s summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

7. It is clear that the grounds identified in the application are an impermissible challenge to the findings of fact by the Tribunal. There is no substance in the proposition that there was a non-compliance with s.91R(1) and it is clear that the Tribunal took into account in making its findings under s.91R(1) the work done by s.91R(2). It is also clear that the Tribunal properly addressed the issue of complementary protection under s.36(2A)(aa).

8. In this case, the Tribunal identified that the applicant was a citizen of Fiji, had been in Australia since 27 April 1983 and that his fears of returning to Fiji relate to access to medical treatment, financial and other support and not being treated well by members of the public or the government because of his long absence from the country and as a person deported due to character issues.

9. The Tribunal identified in the application for protection made on 9 December 2014:

   7. In terms of his application for protection, made on 9 December 2014he wrote that

   A) he had liver damage because of substance abuse, for which he needed treatment in Australia. He was concerned that, because Fiji did not have the resources to treat these problems, he would not get the help he needed. Also people did not get benefits while looking for work. His two brothers were both struggling there and his family here was supporting them financially. He could not depend on them;

   B) he also said that he would not be treated well by members of the public or by the authorities in Fiji because he has been in Australia for 31 years. There was no freedom to express one’s views. He said the mentality in Fiji was totally different, especially given that he had been in Australia for so long;

   C) he further said that people who had been deported “don’t get treated very well back home especially with (501) detainees”. (The reference to “501” is a reference to visa cancellation under section 501 of the Migration Act because of the holder’s substantial criminal record or past and present criminal conduct.) If one had been in jail and was then deported one was “looked down upon by the public” and one’s family.

10. The Tribunal held a hearing on 6 February 2015 and noted that the application made no additional claims regarding his concerns as to returning to Fiji and said relevantly:

    13. He had no direct contact with his two brothers in Fiji since the Departmental interview but received news of them through his father. As he had grown up with them in Australia his relationship with them was okay. Now one was living in Lautoka and the other in Sigatoka. They were poor farmers whose source of income came from their father in Australia.

11. The Tribunal identified the applicant’s medical issues:

    14. The applicant said that his main concern about returning to Fiji was related to his health, although he was also concerned that there was not much work available there and no social services.

    15. The applicant provided no health-related documentary evidence.

12. Materially, the applicant with the same candour in which he addressed this Court today acknowledged

    26. At the end of the hearing the applicant stated that he knew he did not meet the relevant criteria as a refugee or in terms of complementary protection.

13. Whilst I understand the applicant’s concerns, that concession properly made means that this application is one which is doomed to failure and the applicant is only exposed to increasing costs in the pursuit of these proceedings that may create an impediment to a legitimate application that he might have in the future.

14. It is in those circumstances that permitting the matter to go to a final hearing will only add to the applicant’s costs and create a further barrier to what might be a legitimate application in the future that he may be able to bring.

15. Relevantly, the Tribunal then said:

    27. I accept that the applicant is a national of Fiji and have considered his claims in relation to that country.

    28. The applicant frankly told the tribunal that he did not fear being persecuted for a Convention reason if he returned to Fiji.

    34.On that basis, I find that the applicant does not have a well-founded fear of being persecuted for a Convention reason in Fiji.

    37. Nevertheless I have considered the claims he has made about the difficulties he foresees. There is no evidence, and he does not claim that he will be deprived of his life, that the death penalty will be carried out on him or that he will be tortured, and I have not considered whether he will. However I have considered further whether he may be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

    41. For these reasons I find that there are no substantial grounds for believing that as a necessary and foreseeable consequence of Mr [ABN15] being removed to Fiji, there is a real risk that he will suffer significant harm.

16. The  Tribunal concluded:

    42. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he does not satisfy the criterion set out in s.36(2)(a).

    43. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    44. There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2) or(aa) and who holds a protection visa. Accordingly he does not satisfy the criterion in s.36(2).

17. I am satisfied that the findings of the Tribunal were clearly open and that the applicant had a genuine hearing and I commend the applicant on his candour in relation to the application both before the Tribunal and before this Court.  Nonetheless, the proceedings are doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  I summarily dismiss the proceedings.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate: 

Date: 31 March 2015

Corrections

1. In paragraph 15 the applicant’s name was omitted from the Tribunal’s reasons.