AUR15 v Minister for Immigration

[2016] FCCA 2119

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUR15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2119

Catchwords:
MIGRATION – Judicial review – protection visa – unparticularised grounds for review.

Legislation:

Migration Act 1958 (Cth), Part 7 Division 4

Cases cited:

Ex Parte Durairajasingham (2000) 168 ALR 407

Applicant: AUR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1146 of 2015

Judgment of: Judge Harland

Hearing date: 2 August 2016

Date of Last Submission: 2 August 2016

Delivered at: Melbourne

Delivered on: 17 August 2016

REPRESENTATION

Solicitors for the Applicant: In person

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application filed 21 May 2015 is dismissed.

2. That the applicant pay the first respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1146 of 2015

AUR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant filed an application for a protection visa on 18 December 2012. The delegate handed down a decision on 19 December 2013. The applicant reviewed that decision and the Tribunal handed down its decision affirming the delegate’s decision on 30 April 2015. 

2. The applicant filed an application for judicial review on 21 May 2015 setting out the following grounds for review:

   a)The tribunal committed an error of law;

   b)The Tribunal denied the applicant procedural fairness.

3. The applicant has not filed an amended application or provided any written submissions pursuant to directions made by Judge Riley on 15 April 2015. Directions were previously made by Registrar Burns on 2 August 2015.

4. The applicant’s grounds are unparticularised. I acknowledge that it is difficult for self-represented litigants to formulate legal arguments and specify jurisdictional errors. I have considered the material, the Court Book and the Tribunal’s decision. For the reasons that follow I am satisfied that the Tribunal did not commit a jurisdictional error.

5. At the end of the hearings it appeared that the applicant was asking for an adjournment. He said that his legal aid had promised to come but didn’t and that he had tried to find a lawyer in the past few weeks. He said if he was given another chance he would do his best to find one.

6. I explained that I had conducted the hearing but that even if he had asked for an adjournment at the beginning of the hearing I would not have granted it because of the length of time the matter has been before the Court and the fact that two trial directions had been made to prepare the matter for hearing.

7. I informed him that many people in his position have to appear without the benefit of a lawyer which is very difficult for lay people, particularly in the area of migration, which is a very technical area of law. An added difficulty is when a party requires an interpreter as the applicant did here. I am satisfied that the applicant was able to follow and participate in the hearing as best he could in those circumstances.  At the beginning of the hearing the applicant indicated he had received the first respondent’s submissions and had a copy with him but they had not been read to him in his own language. I stood the matter down to enable the interpreter to read them to him. After about 20 minutes the case resumed. The applicant indicated that he understood the submissions. Mr Brown spoke to his written submissions.

8. The applicant was unable to articulate what jurisdictional error the Tribunal made. This is not surprising. He complained that the Tribunal put too much weight on his changing evidence about the number of times the men visited his home. He says there was a long time between when he was first interviewed and when he appeared before the Tribunal.

9. The applicant made the same point in his initial oral submissions and in his reply to Mr Brown’s oral submissions. He says that there was a long gap between when he was first interviewed and when he gave evidence before the Tribunal and that he made a small mistake in his evidence because of that.

10. The applicant had the assistance of a migration agent who prepared a statutory declaration which the applicant signed and submitted with his visa application.[1] In that declaration the applicant said that two men visited his parent’s home on three occasions in 2012 before he left Sri Lanka and another three times after he left. The applicant served drinks at a “Pongu Tamil” cultural event in 2005. The applicant said that the men looking for him had a copy of that photograph.

    [1] Court Book (“CB”) 136-138.

11. The delegate referred to those claims at paragraph 8 and considered the applicant’s evidence in some detail. The delegate found that whilst the applicant had a subjective fear, he did not have a well-founded fear for any Convention grounds raised by the applicant being based on his ethnicity as a Tamil, an imputed political opinion including being perceived as an Liberation of Tigers of Tamil Eelam (“LTTE”) supporter and being a failed asylum seeker.

12. The applicant’s migration agent filed lengthy written submissions in support of the applicant’s review application of the delegate’s decision dated 3 April 2014.[2] Those submissions primarily focus on country information.

    [2] CB 196 - 222

13. Whilst there is no transcript of the hearing it is clear from the decision record, particularly from paragraphs 49 to 79 which show the Tribunal put adverse inferences and inconsistencies in his evidence to the applicant giving him an opportunity to comment. This included at paragraph 94 the applicant raising a new claim that his father was beaten by the men on one of the occasions which when challenged he changed again.

14. At the Tribunal hearing the applicant said the men visited his home 15 times before he left Sri Lanka. He also stated that the men continue to visit his parent’s home regularly. The first respondent submits that this is the key factual underpinning of his claim. The finding the Tribunal made at paragraph 89 that the applicant’s evidence was vague and inconsistent was open on the evidence.  Assessments of credibility are a matter for the Tribunal and not this Court.[3]

    [3] Ex Parte Durairajasingham (2000) 168 ALR 407

15. The Tribunal also assessed the country information and considered the applicant’s claim of fear of harm based on being a failed asylum seeker.

16. The Tribunal complied with the procedural fairness requirements of Part 7 Division 4 of the Migration Act 1958 (Cth). This is apparent from the Court Book. The applicant was invited to attend the hearing and did so. He had the assistance of a migration agent who made written submissions on his behalf and attended the hearing. I am satisfied that that Tribunal properly considered the applicant’s claim and made a rational assessment of the evidence.

17. As the applicant has not established that the Tribunal has made a jurisdictional error, his application must be dismissed.

Costs

1. As the applicant had the assistance of an interpreter at the hearing I addressed the issue of costs. I explained to the applicant that it is usual in cases such as this for the Court to award costs in accordance with the scale to the party who has been successful.

2. In the event the application was dismissed, the first respondent seeks costs in accordance with the scale of $7,206.

3. The applicant says that he is not working and legal aid promised to come to Court but did not.

4. I am satisfied that it is appropriate to order costs in favour of the first respondent in the amount sought.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 17 August 2016