Bae15 v Minister for Immigration

[2015] FCCA 2938

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAE15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2938

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – show cause hearing – procedural fairness – bias –no jurisdictional error – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

PRACTICE AND PROCEDURE – Application for an adjournment – application refused.

Legislation:

Federal Circuit Court Rules 2001 r.44.12

Migration Act 1958 (Cth), s.476

Applicant: BAE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1598 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 S. Sangha
Mills Oakley Lawyers

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 1598 of 2015

BAE15

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 the decision of the Tribunal made on 18 May 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a national of Jordan, and his protection claims and claims for complementary protection were assessed as against that country. The applicant claimed to fear harm from his family if he returned to Jordan because he had converted to Christianity.

2. The applicant claimed that he became attracted to the Christian religion after forming a relationship with his Filipino partner, who is a Christian and who cared for his son from a previous marriage who had special needs.  The applicant claimed his family were strict Muslims and that he had been beaten when they became suspicious that he was converting to Christianity.  The applicant claimed that he relocated with his de facto partner 150 kilometres away from his home town to escape his family but feared that he would be tracked down because he came from a big family.

3. The applicant also raised a new claim at the Tribunal hearing that he worked for a trucking company driving trucks for US troops during the last Iraq war and that he had received threats from Islamic extremists and was forced to leave that job in 2006 or in 2007.  By letter dated 9 April 2015, the applicant was invited to attend a hearing on 22 April 2015, consistent with the statutory regime.  The applicant appeared at that hearing to give evidence and present arguments and was assisted by an interpreter.

4. A Registrar of the Court made orders on 23 July 2015 fixing the matter for hearing today for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.  The Registrar of the Court made orders providing an opportunity for the applicant to file an amended application, affidavit evidence and submissions.  No such documents were filed.  The applicant also completed, on 23 July 2015, an acknowledgment that there had been read to him information on the first Court date, information for applicants, which, relevantly, recorded:

   Once the matter is given a date for the hearing, if you have NO lawyer to represent you, you will need to be ready to tell the Court about your legal case (with an interpreter if required).

5. The applicant was also sent a letter on 22 June 2015 by the solicitors for the first respondent that noted that the applicant was unrepresented and provided details as to a list of organisations that might be able to provide legal advice or assistance to the applicant.  At the commencement of the hearing, the applicant sought an adjournment and said that he wanted to try and source a lawyer.  The applicant said that he had tried to get a lawyer and that he needed more time so that he could make more effort to obtain a lawyer.

6. The applicant confirmed that he had communicated with the organisations referred to in the letter of 22 June 2015 but that they had been unable to assist him and that he did make contact with a lawyer or organisation that asked for money, and he was not, at that stage, ready with money.  The applicant also said that he had read things that he wanted to get into evidence.  In that regard, the applicant referred to wanting to obtain evidence in relation to his working for the US Army and in relation to things upon which he was not believed by the Tribunal. 

7. The applicant said there had been difficulty with the interpreter because of his English and that he needed more time to obtain evidence.  The adjournment was opposed.  The first respondent submitted that the applicant had since 12 June 2015 to obtain evidence.  The applicant also stated that during the hearing he was exhausted and that he asked for a break, following which the hearing terminated.  There was, in this Court, an erroneous suggestion, through the interpretation, that the applicant had asked for an adjournment.

8. That matter was clarified with the applicant, and the applicant confirmed that he had only asked for a break and that he had not asked for an adjournment.  Nothing in the reasons of the Tribunal suggests that there was any request for an adjournment.  The grounds of the application are as follows:

   1. I believe I wasn’t given a fair judgement and concern.

   2. I believe their was a hint of prejudice.

   3. I believe in a fair trial and course of natural justice.

9. Relevantly, the Tribunal found:

   30. The Tribunal found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable or credible witness and that he fabricated his entire claim in order to be granted a protection visa.

10. In relation to ground 1, I accept the first respondent’s submission that the applicant fails to identify any arguable jurisdictional error.  No evidence was adduced to establish any basis on which it could be said that the Tribunal had failed to comply with its statutory obligations in relation to the conduct of the review.  Ground 1 fails to identify any arguable jurisdictional error.

11. In relation to ground 2, an allegation of bias must be clearly alleged and properly proven.  No allegation of bias is proven on the evidence before this Court.  So far as the allegation of bias is based on the adverse judgment, that is not a proper basis upon which bias can be made out.  The adverse findings by the Tribunal are not conduct by which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair and impartial mind to the determination of a matter on its merits.  Ground 2 fails to identify any arguable jurisdictional error.

12. Ground 3 is a bare allegation of a want of a fair trial or denial of natural justice and does not identify any arguable jurisdictional error.  Nothing said by the applicant from the bar table identified any basis upon which there could be said to be an arguable jurisdictional error.

13. I accept the first respondent’s submission that the applicant has had substantial opportunity since 12 June 2015 to obtain a lawyer if he was likely to be able to obtain one.  Nothing said by the applicant identified any basis upon which the Court could find there would be any utility in granting an adjournment.  I am satisfied that there is no utility in granting an adjournment and that an adjournment would only unnecessarily increase the cost to the parties and utilise limited Court time.

14. It is for the above reasons that the adjournment was refused. I am satisfied that the application fails to disclose any arguable case and that this is an appropriate matter to exercise the Court’s powers under r.44.12(1)(a) of the Federal Circuit Court Rules2001. The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 2 November 2015