AMW15 v Minister for Immigration

[2016] FCCA 1585

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMW15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1585

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – application dismissed for non-appearance – application for reinstatement of proceeding – no reasonable prospect of success.

Applicant: AMW15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 817 of 2015

Judgment of: Judge Riley

Hearing date: 24 May 2016

Date of last submission: 24 May 2016

Delivered at: Melbourne

Delivered on: 24 May 2016

REPRESENTATION

Advocate for the applicant: In person via telephone

Solicitors for the applicant: None

Advocate for the first respondent: Oliver Young

Solicitors for the first respondent: Sparke Helmore

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

DISMISSAL

1. The application filed on 17 May 2016 for reinstatement of the proceeding be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $1,250.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 817 of 2015

AMW15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for reinstatement of a migration matter.  The substantive application was dismissed for non-appearance at a directions hearing on 15 April 2016.  The applicant applied on 17 May 2016 for the reinstatement of the substantive proceeding.

2. The applicant stated, in an affidavit in support of his application, that he had attended the court building at the appropriate time but went to the wrong courtroom.  He said that, by the time he realised his mistake, the case had finished and the judge had left.  The applicant stated that the security desk directed him to the wrong courtroom.

3. The first respondent submitted this explanation for non-attendance is inadequate.  The first respondent submitted that it is incumbent upon an applicant to ascertain the correct courtroom and attend that courtroom at the allocated time.

4. That may be so, however, the more important question is whether there are reasonable prospects of success of the substantive application.

5. The applicant is a Sinhalese Catholic from Sri Lanka.  He said that, from the year 2000, he worked on a fishing boat and also undertook activities for the United National Party (“UNP”).  He said that, in 2008, his boat was involved in a mishap which required him and his fellow crew members to be rescued.  It appears that the boat was lost and the employer demanded 50 lakhs as compensation from the applicant.  The applicant claimed that his employer pursued him for a number of years and threatened to kill him.

6. The applicant also stated that he was savagely attacked in connection with his political activities.  He stated that he was in hospital and received treatment for five months.

7. A delegate of the Minister rejected the applicant’s claims.  The applicant then sought review by the Refugee Review Tribunal.  The Tribunal conducted an oral hearing at which the applicant gave evidence.  The Tribunal affirmed the delegate’s decision.

8. The Tribunal found the applicant’s account to contain a number of inconsistencies.  The Tribunal found that the applicant was not a witness of truth.  The Tribunal considered that the applicant’s account, on which his claims for protection were based, was largely a false account.  The Tribunal accepted that the applicant had worked on a boat which had been involved in an accident.  However, the Tribunal did not accept the remainder of the claims relating to the applicant’s employer.

9. The Tribunal did not accept that the applicant undertook activities for the UNP or supported the UNP.  The Tribunal did not accept that the applicant had been attacked or spent any time in hospital as a result of any political opinion he claimed.

10. The Tribunal considered whether the applicant faced any risk of harm as a result of being a Catholic Sinhalese man from the north-west of Sri Lanka who had left the country illegally and who would return there as a failed asylum seeker.  In that context, the Tribunal considered a good deal of country information.  The Tribunal discussed with the applicant the country information and the inferences the Tribunal drew from it.  The Tribunal concluded that the risk of the applicant suffering harm as a result of the factors mentioned was remote.

11. The Tribunal also considered the question of complementary protection.  For the same reasons, the Tribunal considered that the risk of harm to the applicant was remote.

12. In his substantive application to this court, the applicant set out two grounds of review.  They are as follows: 

    1. The Refugee Review Tribunal did not afford me procedural fairness

    2. The Refugee Review Tribunal applied the wrong legal test

13. No particulars were provided in the application of those grounds.  In the oral hearing before this court today, the applicant was not able to elaborate on the grounds in the application.  He asked the court to see if there was any error in the Tribunal’s decision.  He stated that the Tribunal did not consider the evidence that he had given about the things that happened to him when he was at sea.

14. I reject that argument.  It is clear from the Tribunal’s reasons for decision that it considered at length the applicant’s claims about what happened to him when he was at sea and subsequently. 

15. It is also expressly stated in the Tribunal’s reasons for decision that it discussed with the applicant the country information it relied upon and the inferences it drew from it.  There is no reason to doubt that the Tribunal did as it said it had done at the hearing. 

16. I am unable to detect any manner in which the Tribunal may have denied the applicant procedural fairness.  I am also unable to detect any way in which the Tribunal may have applied the wrong legal test.  Having read the decision of the Tribunal carefully, I am unable to detect any jurisdictional error in the Tribunal’s reasons or decision-making process. 

17. In all the circumstances, I am unable to accept that the applicant has a reasonable prospect of success in the substantive application.  In addition, I am not entirely satisfied of the adequacy of the applicant’s explanation for his failure to attend the hearing on 15 April 2016.  Consequently the application for reinstatement filed on 17 May 2016 will be dismissed. 

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

Date:     27 June 2016