BAA15 v Minister for Immigration

[2015] FCCA 3131

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAA15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3131

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – whether the Tribunal took into account an irrelevant consideration – whether the incorrect characterisation of the applicant’s qualifications in relation to his ability to support himself in Lebanon had seriousness of a kind so as to give rise to jurisdictional error – jurisdictional error – application allowed. 

Legislation:

Migration Act 1958 (Cth), ss.91R(2)(d), 476

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Applicant: BAA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1577 of 2015

Judgment of: Judge Street

Hearing date: 24 November 2015

Date of Last Submission: 24 November 2015

Delivered at: Sydney

Delivered on: 24 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr J. Pinder
Minter Ellison

ORDERS

1. A writ of certiorari is issued to the second respondent calling up the record of its review and quashing the decision of 6 May 2015. 

2. A writ of mandamus is issued directing the second respondent to reconsider and determine the applicant’s application for a Protection (Class XA) visa made on 8 November 2013 according to law. 

3. The first respondent pay the applicant’s costs and disbursements fixed in the sum of $1260.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1577 of 2015

BAA15

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 made on 6 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 the Lebanon and his claims were assessed against that country.

2. This is a matter in which the first respondent signed consent orders dated 2 November 2015 for the issue of writs with a statement in support of the proposed orders as follows:

   The first respondent concedes that the decision of the second respondent dated 6 May 2015 (RRT case number 1409263) is affected by a jurisdictional error, in that the second respondent failed adequately to consider and make clear dispositive findings in relation to the applicant's claim to be owed protection obligations pursuant to section 36(2)(a) of the Migration Act 1958 (Cth) due to significant economic hardship affecting his capacity to subsist that he would face if he were to return to Lebanon.

3. It is clear, from the application for protection, that the applicant held a diploma in pathology and that his claims of persecution included a claim under s.91R(2)(d) which was addressed in his statement in support of his application for protection in paras.23-27 and paras.31-34. The applicant is highly intelligent, fluent in English and Arabic and has knowledge of French, as well as having a diploma in pathology and an English certificate. The Tribunal identified the significance of the diploma, albeit incorrectly described by the Tribunal as a diploma in radiology, in relation to the applicant’s capacity to subsist and it was in the context of that diploma that the delegate found the applicant would be able to subsist.

4. The Tribunal identified the applicant’s claims which were set out at para.16.  The Tribunal relevantly found:

   27. I do not accept that the applicant would be unable to subsist if he were to return to Lebanon because of the economic situation or because he had a bad back and couldn’t labour.  I accept that he has had some back problems, however the only medical documents he proffered were from Lebanon in 2013 and none from an Australian doctor regarding his back.  I note that he claims that he still works one day a week for $150/ week. 

   28. He claimed he was paid in cash and therefore had no payslips and did not provide a copy of his bank statement when asked to do so.  I am not satisfied that he has a back condition that precludes him from labouring, and find that his failure to provide evidence of his income is because he is able to work more frequently than he claims.

   29. While northern Lebanon is the most economically depressed in Lebanon, the applicant could relocate to Beirut if he so chose.  I do not accept that he couldn’t because he was Sunni given there are majority Sunni and mixed areas in Beirut, that it was too expensive or because there were too many Syrian refugees.  There are a variety of accommodation types that a single man could use in Beirut depending on his income, and the applicant can both labour and use his TAFE diploma in radiology (a quick search on the internet indicated the presence of jobs in this field for diploma-qualified people). 

   30. As the applicant did not raise any other claims to fear persecution and, having had regard to all the evidence, and the applicants’ claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

5. I accept the first respondent’s submission that if para.27 is qualified by para.29 so as to be a finding of ability to subsist by reason of a capacity to relocate, there would be a jurisdictional error in the failure to consider whether it was reasonable and practicable for the applicant to locate.

6. However, on a fair reading of the Tribunal’s reasons, the reference to relocation was not a qualification to the adverse finding made in para.27 in the first sentence.  In light of the finding in para.27, the statement in support of the proposed consent orders is not one which, in my opinion, identifies a jurisdictional error made by the Tribunal in the present case and it would not be appropriate to make the orders on those grounds.

7. However, it is clear that the applicant’s claim concerning his fear in respect of his capacity to subsist as a Sunni Muslim was one in respect of which his relevant qualification was a diploma in pathology and not, as the Tribunal referred to, a diploma in radiology.  It is clear that the Tribunal understood the applicant to have a qualification described as a diploma in pathology in the last sentence of para.15, which is as follows:

   15. … His TAFE diploma wouldn’t have been good enough to get him a job in radiology.

8. It is further evident from the reference in para.29 to the TAFE diploma in radiology extracted above that the Tribunal believed the applicant to have such a qualification.

9. There is no such diploma in radiology so far as apparent on the material before the Court, and whilst there may be radiology technicians, a radiologist is ordinarily a person of considerable specialist qualification, being both a doctor and a specialist in radiology.  It is not clear what the Tribunal believed the diploma in radiology constituted, albeit the Tribunal engaged in a search on the internet for jobs in Lebanon, apparently by reference to an entry “radiology-technician”.

10. The applicant held no qualification as a radiology technician.  The first respondent has conceded that the Tribunal took into account an irrelevant consideration being the TAFE diploma in radiology and the job search in relation to radiology technicians, and conceded that the importance of these irrelevant considerations in the present case give rise to a jurisdictional error. 

11. Whether a mistake of the Tribunal has seriousness of a kind so as to give rise to jurisdictional error has been helpfully discussed by Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, relevantly, at [184]-[195]. I am satisfied that the taking into account of the irrelevant considerations of both the diploma in radiology and the job search in respect of radiology technicians was a serious error in relation to the applicant’s claim under s.91R(2)(d) so as to constitute a jurisdictional error. This is not a case where the Court is satisfied that this irrelevant consideration occasioned no practical injustice. Nor is the Court satisfied that the irrelevant considerations could not possibly have impacted on the outcome of the application. For these reasons, the Court is satisfied that it is appropriate to make the orders for the issue of Constitutional writs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 27 November 2015