AJS16 v Minister for Immigration

[2016] FCCA 1244

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJS16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1244

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – alleged jurisdictional error and alleged constructive failure to exercise jurisdiction-alleged irrelevant consideration- no jurisdictional error – application dismissed

Legislation:

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

Applicant: AJS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 374 of 2016

Judgment of: Judge Street

Hearing date: 20 May 2016

Date of Last Submission: 20 May 2016

Delivered at: Sydney

Delivered on: 20 May 2016

REPRESENTATION

The applicant appeared in person

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 374 of 2016

AJS16

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 18 January 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant’s father left Iraq in 1999 and arrived in Australia on an unauthorised boat on 1 November 1999. The applicant’s father proceeded to sponsor family members who were living in Syria and the applicant was granted a BC100 partner migrant visa offshore as a dependent on 16 October 2006.

2. The applicant arrived in Australia on 29 November 2006. The applicant was convicted of certain offences that are not relevant to the determination of this application on 7 March 2014 and 1 April 2014, although relevant for the Minister under s.36 (1C) of the Migration Act. On 10 October 2015 the applicant applied for a protection visa. On 7 October 2015 the delegate refused to grant the applicant a protection visa and found that the criteria for a grant of a visa under s.36(2)(aa) and s.36(2)(a) of the Migration Act 1958 are not made out.  On 16 October 2015 the applicant applied for review.  By a letter dated 10 November 2015, the applicant was invited to attend a hearing on 26 November 2015 at which the applicant appeared together with his migration representative as well as his brother as a witness.

3. The applicant claimed to fear harm because he would be hurt and killed by religious gangs operating in Iraq that targeted Shi’a Muslims or kidnapped by religious gangs and forced to fight for the Islamic State.  The applicant identified that he had no friends or family in Iraq who could support him and the applicant also feared harm by reason of his family and parents having been outspoken supporters of Saddam Hussein.  The Tribunal found the applicant’s claims to be lacking in credibility.  The Tribunal found the applicant was not a reliable or credible or truthful witness and found that the applicant had fabricated his claim in order to be granted a protection visa.

4. It was in those circumstances that the Tribunal found that the applicant did not have a well-founded fear of persecution for any convention reason, either now or in the reasonably foreseeable future. It was in those circumstances that the Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk the applicant will suffer significant harm on the basis of the applicant’s claims. The Tribunal found that it was not satisfied that the applicant met the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate.

5. On 16 March 2016 a Judge of this Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

6. The application of the applicant identifies the following grounds:

   1. 1. The decision of the Administrative Appeals Tribunal (Migration & Refugee Division) is affected by jurisdictional error in that the Tribunal constructively failed to exercise it's jurisdiction in that.

   The Tribunal's findings at [48] “Further, I do not accept that he would be kidnapped and ransomed because he was from Australia and considered rich or that he would be considered to be a spy just because he returned from Australia Country information indicates that failed asylum seekers returning from overseas ( including Australia) to southern Iraq (of which Basra is part) do not face significant problems. There is nothing that would support the claim (nor was any independent country information provided) that would indicate that an individual returning from Australia would be either kidnapped and ransomed because they were considered rich, or that they would be imputed with being a spy .

   The Tribunal at [ 48] failed to consider the applicant's claims in a logical manner and therefore the tribunal denied the applicant procedural fairness and fell into jurisdictional error by misconstruing the sections of the complementary protection visa legislations as the applicant claimed to fear harm upon his involuntary removal to Iraq because he would be seen as an outsider , being one who lived in Australia most of his life , having western values , and having limited language skills in his second language (Arabic) i.e. not being able to read , or write Arabic . The applicant claimed he did not identify with the cultural and religious views in Iraq , in particular he did not share the same views of Islam which is dominated in Iraq or the way they see and treat religion in western countries .

   The applicant's well founded fear of persecution depended on the claims that the applicants feared that he would be seen as and outsider and that he would face significant harm from people and authorities because of his values , his views of religion , his “westernised way of being dressed” and permanent tattoos .

   The end result of the Tribunal's approach was that it avoided consideration of an important integer of the outsider and involuntary returnee claims, and therefore ultimately it failed to consider properly and genuinely whether the applicant faced a real chance of persecution .

   2. The decision of the Administrative Appeals Tribunal (Migration & Refugee Division) is affected by jurisdictional error In that the Tribunal constructively failed to exercise it's jurisdiction as the tribunal took irrelevant material into consideration whilst making it's decision.

   The Tribunals findings at paragraph [50] “I do not accept the applicant would be unable to find work because he lacked language skills or contacts. I have not accepted that he has !10 family network in Iraq,and he speak and reads Arabic I do not consider that his level of Arabic comprehension is such that it take half an hour to read a sentence reads the QURAN and given he didn't say he learnt it by wrote is reasonable to believe that his level of Arabic comprehension is far grater then he has admitted to. It is also reasonable to believe that he would be able to gain employment in line with his educational qualifications that he has gained in Australia ; that is , largely unskilled work.

   The issue that arises when stated in this way that the tribunal has adequately reached a decision that the applicant can read and write in Arabic with out the tribunal having any evidence before the Tribunal or the Tribunal has simply failed to exercise it's jurisdiction as the applicant met the requirements defined in the complementary protection visa Act given the fact that the applicant would suffer significant economic hardship that would threaten the applicant capacity to subsist and therefore the applicant will be denied the capacity to earn livelihood of any source and this denial will threaten the applicant's claim in a logical manner and therefore the tribunal denied the applicant procedural fairness and fell into jurisdictional error by misconstruing the sections of the complementary protection visa legislations.

   (errors in original)

7. At the commencement of the hearing the Court started explaining to the applicant the nature of the hearing when the applicant indicated that he wanted to obtain an adjournment and wished the Court to either appoint a representative for the applicant or to have time to obtain representation. 

8. The applicant indicated that he had called lots of people and been unable to obtain representation.  The applicant confirmed that he had given no earlier notice of this request for an adjournment to the first respondent.  It is not the role of the Court to appoint a representative for an applicant and, in relation to the adjournment request, nothing was said by the applicant that identifies any basis upon which the Court could have any confidence that an adjournment would be of any utility. The first respondent opposed the adjournment. The Court was not satisfied that there was a proper basis an adjournment of this matter given the earlier opportunity given to the applicant and the absence of any basis to believe that representation would be obtained by granting an adjournment. Further an adjournment would only unnecessarily add to the costs of the parties and utilise limited Court time. The Court was not satisfied that the interests of the administration of justice required an adjournment.  It was for the reasons that an adjournment was refused.

9. The Court proceeded with the hearing and explained to the applicant that the nature of the hearing was to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness.  The Court explained that, if satisfied there is relevant legal error by the Tribunal, the decision of the Tribunal would be set aside and the matter sent back for further hearing before the Tribunal. The Court explained if not so satisfied the application would be dismissed. The Court explained that it proposed to identify the evidence and then hear submissions from the applicant and then submissions from the counsel for the first respondent, then submissions from the applicant.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

10. When the applicant was asked whether he wished to put any submissions-in-chief, the applicant indicated that he wished to maintain his request for an adjournment.  The Court repeated that application was not one that was being granted.  The applicant then maintained that he had nothing to say. 

11. In relation to Ground 1, I accept the submissions of the first respondent that the claim that the applicant may fear harm because of being dressed in a Western way was not a claim or integer advanced by the applicant on the material before the Tribunal and was not a claim that arose on its face of that material. A claim that was not advanced before the Tribunal and which doesn’t arise on the material before the Tribunal cannot give rise to any jurisdictional error.

12. Insofar as ground 1 challenges the reasoning of the Tribunal, in para.48 the adverse finding by the Tribunal cannot be said to lack an evident and intelligible justification. The Tribunal did take into account the applicant’s tattoos and did make adverse findings dispositive of the applicant’s claims. The Tribunal made adverse findings that were open on the dispositive issues. There is nothing to support the allegation that the Tribunal failed to apply the correct test and the reasoning of the Tribunal and reference to the legal propositions is inconsistent with that contention.  

13. Insofar as the applicant seeks to challenge by ground 1 the adverse finding as to whether he has a well-founded fear of persecution, that adverse finding was open on the material before the Tribunal. The Tribunal complied with the statutory obligations in relation to the conduct of the hearing and on the face of the reasons of the Tribunal the applicant had a genuine hearing.

14. There is nothing before the Court that identifies any denial of procedural fairness by the Tribunal. There was no jurisdictional error by the Tribunal in the findings made and there was no constructive failure by the Tribunal to exercise its jurisdiction. Ground 1 fails to make out any jurisdictional error.

15. In relation to Ground 2, the applicant seeks to challenge the findings of the Tribunal made in para.50 relating to the applicant’s ability to find work.  The adverse findings by the Tribunal in para.50 were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Further the adverse findings in para 50  were relevant considerations and do not reflect any failure to exercise jurisdiction. Those findings cannot be said to be unreasonable and do not lack an evident and intelligible justification. Further there was no denial of procedural fairness by reason of the Tribunal not accepting the applicant’s evidence.

16. Insofar as Ground 2 challenges the findings made in relation to complementary protection, the adverse findings were open on the material before the Tribunal. Further there is nothing to support the contention that the Tribunal misconstrued the complementary protection provisions and the Tribunal’s reasons are inconsistent with that contention. Ground 2 fails to make out any jurisdictional error. 

17. From the bar table, the applicant submitted, after hearing the oral submissions of the first respondent, that he would be killed or harmed if he was returned to Iraq and that he did not have any family there and identified that he had grown up, essentially, in Australia and did not understand the people in Iraq. 

18. Each of the matters raised by the applicant from the bar table went to the merits of the application.  As explained to the applicant, this Court does not have power to make fresh findings of fact in relation to the applicant’s claims.  Nor does the Court have any power to set aside the decision on compassionate grounds.

19. The Court’s jurisdiction is confined to considering and determining whether the Tribunal’s decision is affected by relevant legal error. Nothing said by the applicant identified 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: 26 May 2016