AZAEK v Minister for Immigration

[2014] FCCA 1746

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAEK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1746

Catchwords:
MIGRATION – Judicial Review of Refugee Review Tribunal – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), r.16.01

Applicant: AZAEK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 375 of 2013

Judgment of: Judge Simpson

Hearing date: 9 May 2014

Date of Last Submission: 9 May 2014

Delivered at: Adelaide

Delivered on: 9 May 2014

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr P d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application filed on 16 December 2013 be dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 375 of 2013

AZAEK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled ex-tempore reasons)

1. I have before me an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Citizenship, as he then was, not to grant the applicant a Protection (Class XA) Visa. 

2. When the matter was called on, the applicant sought an adjournment of the matter so that he could get a lawyer.  I refused that application and gave reasons.  I do not propose to repeat those reasons, save to say that I was not satisfied that there would be any point in adjourning the matter.  If I had believed that an adjournment might result in the applicant being able to get a lawyer to represent him, then I obviously would have adjourned the matter.  I did not have any confidence that the applicant would be able to get a lawyer to act.

3. In deciding not to adjourn the matter, I also took into account my concern about ensuring that the Court’s resources are not wasted and that the respondent’s costs are kept to a minimum.  The respondent would be put to significant extra expense if I were to have adjourned the matter.  The adjournment application was opposed by the respondent and was refused by me.

4. As is so often the case in these matters, the respondent has filed a very helpful Outline of Submissions.  I rely on that Outline of Submissions in giving these reasons. 

Factual and procedural background

1. The factual and procedural backgrounds were as follows.  The applicant was born in Sri Lanka and is a citizen of that country.  He arrived at Christmas Island on 21 May 2012 as an unauthorised maritime arrival. 

2. On 14 September 2012, he lodged an application for a visa – the visa I have referred to a little earlier in these reasons – which was accompanied by a statutory declaration detailing his claims for protection.  In substance, he claimed that the Sri Lankan Army alleged that his father was a supporter or sympathiser of the Liberation Tigers of Tamil Eelam. 

3. He claimed that his father had been beaten, detained and tortured by the Sri Lankan Army.  He claimed to fear persecution due to his race, he being a Tamil, an imputed political opinion associated with his father and as a member of a particular social group, namely failed Tamil asylum seekers.  At a later stage in the review process before the Tribunal, the applicant made complementary protection claims under s.36(2)(aa).  Those claims concern the applicant’s status as a Tamil and a failed asylum seeker. 

4. On 7 January 2013, the Minister’s delegate refused the application.  On 7 February 2013, the applicant applied for review by the Tribunal.  On 12 March 2013, the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in the case. 

5. The respondent’s submissions provide a helpful summary of what happened before the Tribunal and also details of the reasons that were given by the Tribunal.  The applicant has a copy of the submissions and is aware of the summary of the proceedings before the Tribunal and the reasons that were given.  I see little point in reading out that section of the submissions.  The Tribunal concluded its reasons by affirming the decision that was under review. 

6. On 16 December 2013, the applicant applied to this Court for judicial review.  He has been unrepresented, as is obvious from what I have said previously.  The applicant was given a full opportunity to put any submissions that he wished to.  He seemed to be under the misapprehension that this Court was able to provide him with another chance at obtaining a visa.  He put it on the basis that he wanted me to “give him another chance” (presumably to get a visa).  I explained to the applicant that that is not a path that I can go down, as I do not have jurisdiction to “give him another chance”.  I explained to him that the focus of his submissions needed to be on any errors that he says were made by the Tribunal. 

7. In the applicant’s Application that was filed, the applicant, in the section that deals with grounds of application, simply states that:

   “(1)The decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error; and

   (2)More details will be provided by the legal representative.”

8. There has not been a legal representative of the applicant.  The applicant has provided no other details as to his complaint about the process and/or reasons given by the Tribunal.  No further particulars have been provided.  No written submissions have been put before me.  This is so notwithstanding the fact that the Court had earlier ordered that a written submission be prepared and filed prior to the hearing today. 

9. The applicant is required to establish a jurisdictional error to qualify for the relief that he seeks.  Despite the fact that he is without legal representation he does not seem to have done anything to try to identify a jurisdictional error in the Tribunal’s decision. 

10. In the circumstances of having an applicant without a lawyer or legal skills it is incumbent on the Court to examine the matter generally and see whether there is any error that is arguably available.  I have examined the evidence and the Tribunal’s reasons and have come to the view that there has been no jurisdictional error.  In those circumstances the application should be dismissed pursuant to Federal Circuit Court Rule 16.01.

11. I make the orders to be found at the beginning of these reasons.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  7 August 2014