BAO15 v Minister for Immigration

[2015] FCCA 2939

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAO15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2939

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – show cause hearing – procedural fairness – whether the Tribunal failed to put adverse information to the applicant – 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

Migration Act 1958 (Cth), ss.36(2)(aa), 424A, 424AA, 476

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

Applicant: BAO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1610 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 C. Hillary
DLA Piper

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 $3300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1610 of 2015

BAO15

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 that the Tribunal made on 26 May 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of India. The applicant arrived in Australia on 29 December 2008 on a visa subclass 456 and became an unlawful person in Australia from 3 December 2009 to 28 February 2010 and then again from 30 June 2010 to 4 July 2010 and then from 30 November 2010 to 8 August 2013.

2. The applicant made his first application for protection on 9 February 2009, which was refused on 30 April 2009.  The applicant commenced proceedings in the Refugee Tribunal on 21 May 2009 and on 24 August 2009, the Refugee Tribunal affirmed the decision of the delegate.  The applicant sought judicial review in the Federal Magistrates Court, commencing proceedings on 15 September 2009, which were dismissed on 4 November 2009.  The applicant made an application for ministerial intervention, which was subject of a process in which it was decided not to be considered on 20 December 2010.

3. Consistent with the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, the applicant lodged a second application for protection on complementary protection grounds on 5 August 2013. On 23 July 2015, a Registrar of the Court made orders fixing the matter today for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 and making orders for an opportunity for the applicant to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

4. The grounds of the application are as follows:

   1. The second respondent failed to comply with the mandatory requirement under s.424A (read with s.424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicants understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under s.424A of the Act and, made no attempt to, and did not, comply with the requirements set out in s.424AA of the Act.

   2. The applicant satisfies the key elements of the Convention definition as detailed in the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

5. As the applicant was found to be a citizen of India, that was the country against which the Tribunal assessed the applicant’s claim for complementary protection as the receiving country.  The applicant claimed fear because in 2008 he was carrying money from one location to another for his employer and was robbed of the money by a criminal.

6. The applicant claimed his employer did not believe that he was robbed and accused him of stealing the money.  The applicant claims that the employer’s company has connection with criminal gangs and sent thugs to his house to threaten his family and claims this was why he left for Australia.  The Tribunal found that the applicant’s substantive claims were not truthful and it was in those circumstances that the Tribunal was not satisfied that there were reasonable grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk the applicant will suffer significant harm.

7. Ground 1 of the application is an unparticularised allegation of non-compliance with ss.424A and 424AA. No information is identified by ground 1 that might be said to enliven the obligation under s.424A. I accept the first respondent’s submission that in these circumstances, ground 1 fails to identify any arguable jurisdictional error. To the extent relevant, I note that the applicant was invited by letter dated 6 May 2015 to attend a hearing on 26 May 2015, and that on that day the applicant appeared to give evidence and present arguments and was assisted by both an interpreter and his registered migration agent. Ground 1 fails to make out any arguable jurisdictional error.

8. Ground 2 asserts a failure to consider the applicant’s claims for protection under the Refugee Convention. The applicant had an earlier application in which his claims under the Refugee Convention have been pursued unsuccessfully and that was not an issue before the Tribunal, as the Tribunal was confined to determining whether the applicant was entitled to protection on the grounds of complementary protection under s.36(2)(aa).

9. In these circumstances, I accept the first respondent’s submission that the application fails to identify any arguable jurisdictional error. Nothing was said by the applicant from the bar table to identify any basis upon which there could be said to be an arguable jurisdictional error. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12(1)(a). I am satisfied that the application does not disclose any arguable case. The application is dismissed under r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

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

Associate: 

Date: 2 November 2015