AXN15 v Minister for Immigration

[2015] FCCA 2863

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXN15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2863

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – show cause hearing – whether the applicant had a sufficiently arguable case – no arguable jurisdictional error – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001, r.44.12

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

Applicant: AXN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1507 of 2015

Judgment of: Judge Street

Hearing date: 23 October 2015

Date of Last Submission: 23 October 2015

Delivered at: Sydney

Delivered on: 23 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr R. White
Mills Oakley

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1507 of 2015

AXN15

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 dated on 7 May 2015, affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The delegate refused the applicant’s application for the grant of a visa on 18 December 2013.

2. By letter dated 23 February 2015, the applicant was invited to attend a hearing on 24 April 2015 before the Tribunal at which the applicant appeared to give evidence or present arguments and was assisted by an interpreter and represented by his registered migration agent. 

3. The first respondent moved for a show cause hearing under r.44.12 in relation to the application filed by the applicant. The application identifies the following grounds:

   1. The RRT decision is unsupported by evidence.

   2. RRT did not fully deal with my problems.

4. On 16 July 2015, the Registrar made orders fixing the matter hearing and providing the applicant leave to file an amended application and any affidavit evidence in support as well as submissions.  No documents were filed by the applicant. 

5. The Tribunal identified the claims for protection, which had been set out in a statutory declaration at court book 50 to 73 and were summarised by the Tribunal at court book 113 to 195.  The Tribunal identified new claims that arose at the hearing at 196 to 197.  The Tribunal did not accept the applicant’s claims and, relevantly, found:

   92. The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or that there is a real risk that he will suffer significant harm as a consequence of being a failed Tamil asylum seeker from the north who has lived in [X] and the [Y], including after he returns to [X]. 

   93. The Tribunal does not accept that there is a real chance that the  applicant will suffer serious  harm if he returns to Sri Lanka because of one or more of:

   ·   his Tamil ethnicity;    

   ·   his imputed political opinion in support of the LTTE on account of: his Tamil ethnicity;

   ·   his origins in Jaffna in the northern province;

   ·   the years he spent in [Z] which is in the [Y];

   ·   his illegal departure from Sri Lanka;

   ·   his extended presence in Australia as an asylum seeker;

   ·   his membership of the particular social group of Tamil returned fail asylum seekers.

   94. For those reasons, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to Sri Lanka.

   …

   97. 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).

   …

   99. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. In relation to ground 1 in the application, it fails to disclose any arguable jurisdictional error.  It is clear that the Tribunal’s reasons are supported by reference to the evidence before the Tribunal and that the applicant had a genuine hearing.  Ground 1 fails to make out any arguable jurisdictional error.

7. Nothing was said by the applicant from the bar table that identified a single jurisdictional error.  The applicant did identify he was fearful of returning to Sri Lanka and that he feared he would be imprisoned and tortured.  It was the matter for the Tribunal to determine the applicant’s claims.

8. Ground 2 does not identify any claim that was not dealt with by the Tribunal and fails to identify any arguable jurisdictional error. 

9. I am satisfied that this is an appropriate case to exercise this Court’s powers under r.44.12. The applicant fails to disclose any arguable case of jurisdictional error. The application is dismissed under r.44.12.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  27 October 2015