AZA15 v Minister for Immigration

[2015] FCCA 2940

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZA15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2940

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – show cause hearing – whether the Tribunal misunderstood the applicant’s claims and evidence – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001 r.44.12

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

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: AZA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1553 of 2015

Judgment of: Judge Street

Hearing date: 30 October 2015

Date of Last Submission: 30 October 2015

Delivered at: Sydney

Delivered on: 30 October 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms R. Jones
Australian Government Solicitor

ORDERS

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

2. The applicant pay the costs of the first respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1553 of 2015

AZA15

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 the Tribunal made 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 national of Fiji. The applicant arrived in Australia on 6 November 2008 as the holder of a visitor visa. The applicant lodged an application for protection on 25 March 2010 which was refused and that refusal was affirmed by the Tribunal on 13 October 2010.

2. The applicant lodged a second application for protection consistent with the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 on the grounds of complementary protection under s.36(2)(aa). Given the applicant was found to be a national of Fiji, the applicant’s claims in respect of complementary protection were assessed against Fiji as the receiving country. Pursuant to orders made on 16 July 2015, the matter was fixed today for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.

3. I note on that date, the Registrar made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.  The applicant filed an affidavit annexing the transcript of the hearing before the Tribunal but did not file any amended application or submissions.  The grounds of the application are as follows:

   1. I do respect the member of the Tribunal but she misunderstood my fear and harm if I return to Fij.

   2. The Tribunal failed to refer to crimes and honour and tribal revenge.

4. The Tribunal identified the applicant’s fears in paras.10 and 11, relevantly, that he feared for his safety and had no home to return to in Fiji, that the applicant feared cruel and inhumane and degrading treatment and that the applicant feared that the Fijian Police, Army and people would abuse him and his family.  The applicant feared this would happen to him because some people in the community had been treated inhumanely and were tortured and that soldiers were involved in that conduct and that the authorities would not protect him.

5. The applicant stated he did not trust the Fijian military who would harm anybody and the applicant claimed that when he lived in Fiji, sometimes he stopped gangs of young indigenous Fijian males from stealing and harming the local Indian community.  He stated that when he intervened, he was beaten up and that if he had to return to Fiji, he would continue to intervene and, therefore, he would be harmed.

6. The applicant also stated that he was estranged from his wife and that she and her family would harm him because he had abandoned the family.  Relevantly, the Tribunal found:

   18. The Tribunal is of the view that the applicant’s responses to questions about his claims as outlined above, were vague and lacked in significant details. In the course of the hearing, the applicant made claims that were not made in the application for a protection visa. Whilst it is correct that the applicant has made those claims during the protection interview, the fact that they were not made in the application for a protection visa raises doubts about those claims. Given those concerns, on the basis of the available information and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant was ever beaten by anyone, including but not limited to gangs of young indigenous Fijian males, or that he has ever been abused verbally or in any other way by anyone, or that he fears returning to Fiji on that basis, or that if he were to return to Fiji he would continue to intervene as claimed, or that there is a real risk that he would suffer any significant harm on this basis.

   19. In essence and for those reasons, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm.

   …

   21. The applicant has been in Australia for almost 7 years and the Tribunal finds it odd that after years and just a few weeks before his departmental interview, the former wife would be making such a threat. On the basis of the available information and in consideration of the evidence as a whole, whilst the Tribunal accepts as plausible that the applicant’s relationship with his former wife might not be amicable, the Tribunal is not satisfied that if the applicant were return to Fiji, his former wife and/or any member of the family would cause him harm amounting to significant harm within the definition of s.36 (2A) of the Act.

   …

   23. On the basis of the available information and in consideration of the evidence as a whole, the Tribunal is satisfied that there is not a real risk of the applicant suffering significant harm on the basis of the situation in Fiji, in case of his return. For the same reasons, the Tribunal is satisfied that there is nothing in the applicant’s profile or personal circumstances that would mean that there is a real risk of any such harm.

   24. In essence and for the stated reasons, the Tribunal finds that that there is not a real risk of significant harm occurring to the applicant if he were to return to Fiji. 

7. I accept the first respondent’s submission that ground 1 fails to identify any arguable case of jurisdictional error.  I note that the applicant was invited by a letter of 4 February 2015 to attend a hearing on 5 May 2015 at which the applicant appeared to give evidence and present arguments and was assisted by an interpreter.  Ground 1 is unparticularised in relation to any alleged misunderstanding by the Tribunal of the applicant’s claims and having looked at the transcript put into evidence by the applicant, it is clear that the Tribunal accurately identified the applicant’s claims.

8. In substance, ground 1 is an impermissible challenge to the adverse findings of fact by the Tribunal and fails to identify any arguable jurisdictional error.  In relation to ground 2, there was no reference to crimes of honour and tribal revenge in the applicant’s claim of fears and accordingly, there was no integer of the applicant’s claim concerning crimes of honour and tribal revenge that the Tribunal was required to address in its review.  No such issue was clearly articulated or arose on the material before the Tribunal.

9. Insofar as ground 2 is a reference to the applicant’s fears concerning his former spouse and her family, that was a matter properly addressed and considered by the Tribunal and the subject of an adverse finding as identified in para.21 above.  Accordingly, I accept the first respondent’s submission that ground 2 fails to identify any arguable case of jurisdictional error.  Nothing said by the applicant from the bar table identified any basis upon which it could be said there is an arguable case of jurisdictional error.

10. I accept that this is an appropriate case in which to exercise the Court’s powers under r.44.12(1)(a) of the Federal Court Circuit Rules 2001. The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 2 November 2015