ARA15 v Minister for Immigration

[2016] FCCA 2028

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARA15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2028

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – real risk test – whether the Tribunal misinterpreted the relevant legislation – whether the Tribunal disregarded relevant facts – whether the Tribunal denied the Applicant natural justice – alleged bias – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 476

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] 212 FCR 235

Applicant: ARA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1246 of 2015

Judgment of: Judge Street

Hearing date: 9 August 2016

Date of Last Submission: 9 August 2016

Delivered at: Sydney

Delivered on: 9 August 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms D Watson
Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $6,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1246 of 2015

ARA15

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 a decision of the Tribunal made on 10 April 2015 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Pakistan.  The applicant arrived in Australia on 28 April 2009, having been granted two months earlier on 24 February 2009, a TR 676 tourist visa.  The applicant first applied for protection on 6 August 2009, which was refused.  The applicant sought Ministerial protection, then Ministerial intervention from 19 July 2010 and that application was identified as one that would not be considered on 28 March 2011.

3. The applicant lodged a further application for Ministerial intervention on 11 May 2011, which was identified as not being the subject of further consideration on 9 June 2011.  The applicant lodged a second application for protection on the grounds of complementary protection consistent with the decision in SZGIZ v Minister for Immigration and Citizenship 212 FCR 235 on 16 October 2012.

4. The applicant claimed to fear persecution because the Taliban considers that he is a police informer and because the Taliban considers he is a traitor to Islam because he passed information about them to the police.  The applicant also fears that the Taliban considers him a person who is holding an opinion against them and working against them and fears he will be unable to obtain protection from the authorities.  The applicant also claimed a fear that he would be imputed with a political opinion opposed to the Taliban.

5. On 28 May 2014, the delegate refused to grant the applicant a protection visa. The delegate was not satisfied that Australia has protection obligations to the applicant because there were not substantial grounds of believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he would suffer significant harm.

6. On 26 June 2014, the applicant applied for review.  On 24 February 2015, the Tribunal sent a letter to the applicant inviting him to appear before the Tribunal on 1 April 2015.  The applicant appeared on that date to give evidence and present arguments and was assisted by a migration representative.   Following the hearing the applicant had a further opportunity to provide further material and did so in the form of a statutory declaration.

7. The Tribunal’s reasons identified the relevant law in relation to complementary protection, including in relation to s.36(2A) and s.5(1) of the Migration Act 1958 in para.5 and in the attachment A para.33.  The Tribunal identified the applicant’s claims and evidence.  The Tribunal found that the applicant was not a credible witness.  The Tribunal formed the view, having considered all the evidence, that the applicant had in fact manufactured the totality of his claims regarding his experiences in Pakistan.  The Tribunal gave detailed reasons for the adverse credibility findings. 

8. Those reasons included the earlier fabrication by the applicant of a set of claims that he advanced to the Department and the Tribunal found the applicant was untruthful and an unreliable witness.  It was in those circumstances that the Tribunal did not accept that there was a real risk the applicant would face significant harm because he is considered to be a police informer, a traitor of Islam or someone who is viewed as having an adverse political opinion opposed to the Taliban.

9. The Tribunal found that it did not accept there was a real risk the applicant would suffer significant harm due to a breakdown in the rule of law and democracy or that he would suffer human rights abuses that amount to significant harm.  The Tribunal found that it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there was a real risk that he would suffer significant harm.

10. On 22 June 2015, a Judge 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 by the applicant. 

11. At the commencement of the hearing today, the Court explained to the applicant that the nature of the hearing was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained to the applicant that the relevant legal error had to be either a denial of procedural fairness to the applicant or an excess of statutory power by the Tribunal.  The Court explained that in summary this meant the Court was determining whether the Tribunal’s decision was lawful or whether the Tribunal’s decision was fair.

12. The applicant confirmed that he understood what had been said by the Court.  The Court explained that if satisfied the decision was affected by relevant legal error, it could set aside the Tribunal’s decision and remit the matter to the Tribunal for a further hearing.  The Court explained that if not satisfied that the Tribunal’s decision was affected by relevant legal error, it would dismiss the applicant’s application.

13. The Court explained 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. 

14. The grounds of the application are as follows:

    1. The First and the Second Respondents erred when they did not interpret s 36(2A) of the Migration Act of 1958 sufficiently and relevantly to my circumstances.

    Particulars

    The First and the Second Respondents did not interpret correctly 'significant harm' with reference to my circumstances. That is, I will be subject to cruel, inhuman treatment, could be arbitrarily deprived of life and will be subjected to torture.

    2. The First and Second Respondents disregarded relevant facts and considered irrelevant facts

    Particulars

    In particular, evidence relevant to my protection claim were rejected. Emphasis was given to irrelevant considerations.

    3. I was not afforded natural justice.

    Particulars

    I believe that I was not afforded a fair hearing. l have a legitimate expectation to remain in Australia without fear. I believe that this expectation was curtailed by the decision of the First and Second Respondents who did not bring their minds to impartially decide my case on its own merits. I believe they did not take into account relevant considerations and took into account irrelevant considerations and were biased in their conclusions.

15. In the course of the hearing, the applicant identified that he wanted an adjournment and the transfer of the proceedings to Melbourne so that he could get a lawyer to represent him.  The applicant confirmed that he had given no earlier notice of any requests for an adjournment to the first respondent.  When asked by the Court why he had not been able to obtain representation since the filing of the matter on 7 May 2015, the applicant said that he had been sick during this period of time. 

16. The adjournment was opposed by the first respondent.  The applicant was given a further opportunity to explain the reasons why an adjournment should be granted and the applicant identified that he had personal problems.  Nothing said by the applicant from the bar table identified any proper basis upon which an adjournment should be granted. An adjournment would only unnecessarily add to the costs of the parties and utilise limited Court time.

17. There was no proper basis identified by the applicant to support the notion that an adjournment would provide any representation to the applicant, particularly given the period of time he has already had to obtain representation.  The applicant identified that he had spoken to lawyers and that they wanted to take $9000 from him to appear. Nothing said by the applicant identified any basis upon which the Court could find that an adjournment was likely to give rise to any representation of the applicant. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice.  It is for these reasons the adjournment was refused. 

18. From the bar table the applicant said that his mother was sick at the time of the hearing before the Tribunal and that he had attended late and that it had caused some problems.  From the material before the Court it is apparent that the applicant attended the hearing, together with his representative, and had an opportunity to provide further information after the hearing on 1 April up until 10 April 2015.

19. As identified above, the applicant did, in fact, provide further information in that regard.  I am satisfied that the applicant had a genuine hearing and that nothing said by the applicant from the bar table identified any jurisdictional error.  In relation to ground 1, the Tribunal correctly identified the relevant law and on the face of the Tribunal’s reasons correctly applied that law to the facts found by the Tribunal. Ground 1 fails to make out any jurisdictional error. 

20. In relation to ground 2 the assertion of disregarding relevant facts and considering irrelevant facts does not, of itself, identify any jurisdictional error.  It is apparent from the Tribunal’s reasons that it did identify the applicant’s protection claims and it was open to the Tribunal to make the adverse findings.  The adverse findings cannot be said to lack an evident and intelligible justification.

21. The rejection of the applicant’s claims does not identify any jurisdictional error. The bare assertion of the irrelevant considerations does not identify any jurisdictional error.  No relevant fact was identified that was not taken into consideration. Ground 2 fails to make out any jurisdictional error. 

22. In relation to ground 3 there is an allegation that the Tribunal was biased in its conclusions. The adverse findings of the Tribunal are 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.  There is nothing based on the material before the Court or the Tribunal’s reasons to support the allegation of bias.  The allegation of bias must be clearly and properly proved.  That allegation of bias is not proved.

23. Insofar as ground 3 suggests that the applicant was not afforded a fair hearing, this, in substance, appears to be an invitation to engage with the merits of the applicant’s application.  This Court does not have jurisdiction to review the merits of the application. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. There is nothing on the material before the Court to establish that the Tribunal failed to comply with the requirements of procedural fairness.  Ground 3 fails to make out any jurisdictional error. 

24. The application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 August 2016