BCE15 v Minister for Immigration
[2015] FCCA 2956
•3 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCE15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2956 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – show cause hearing – procedural fairness – whether the applicant received the notice of invitation to appear – 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(1)(a) Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425, 425A, 441C, 476 |
| SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 |
| Applicant: | BCE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1669 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 3 November 2015 |
| Date of Last Submission: | 3 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr A. Keevers Sparke Helmore |
ORDERS
The application is dismissed under r.44.12(1)(a) of the Federal Circuit Court Rules 2001.
The applicant pay the first respondent’s costs fixed in the sum of $3416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1669 of 2015
| BCE15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 the Tribunal made on 15 May 2015, affirming the decision of the delegate not to grant the applicant a protection visa. The applicant arrived in Australia on 1 March 2008, on a fraudulently obtained passport, claiming to be a dependent on a subclass TU572 student visa.
It was not until 5 January 2011 that the applicant applied for a protection visa, which was refused on 25 February 2011. The applicant then became an unlawful person in Australia from 5 April 2011 until 26 September 2013. On 26 September 2013, the applicant applied for another protection visa, consistent with the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 on the grounds of complementary protection under s.36(2)(aa).
On 2 June 2014, the delegate refused to grant the applicant a protection visa. The delegate noted the applicant’s claims, relevantly that she became an activist member of the Rastriya Prajantantra party (RPP) around May 2007 and that her brother had been taking her to some events and party meetings, and that on 7 July 2007, she and her brother attended a function to celebrate the King’s 60th birthday. On the way back from the function, the applicant and her group of party members were verbally abused and assaulted by a group of Maoists near a particular town, and that her brother, who was also a member of the party, died on his way to hospital due to his injuries.
The applicant reported the attack and her brother’s death to the police and to the party’s top leader to seek justice but nothing was done. The applicant insisted on pursuing the matter with the police, but was discouraged by her parents, who feared for her safety. A few days after the attack, following advice from her parents, the applicant went to Kathmandu to avoid persecution from the Maoists in her village, and stayed with a friend for a month.
The applicant feared the Maoists and believed that she was a target, as a party member. The applicant heard on the news that people from the RPP were being targeted by Maoists. The applicant arranged for an agent to get her a false passport, because she felt threatened with serious harm. The applicant said she did not apply for protection on arrival in Australia, because she did not know of the existence of such a visa. The applicant said that she could not relocate, because she believes the general situation in Nepal means that she could not be effectively protected anywhere there, and that the applicant feared she would suffer persecution by the Maoists, who oppose the monarchy, should she return to Nepal.
The delegate did not find the applicant to be a credible witness and took into account the delay in the lodging of the application for protection, and was not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason and that the applicant did not have a well-found fear of persecution. Further, the Tribunal was not satisfied that there are substantial grounds for believing, as a necessary and foreseeable consequence, the applicant being removed from Australia to Nepal as a receiving country, that there is a real risk she will suffer significant harm.
The applicant was found to be a citizen of Nepal and her claims in relation to complementary protection were assessed by the Tribunal against that country. This matter was the subject of orders made on 30 July 2015 by a registrar of the Court, providing an opportunity for the applicant to file an amended application, file affidavit evidence and file submissions, and listing the matter for callover on 2 November 2015, noting that the matter may be allocated a date for a show cause or final hearing during the period 3 to 6 November 2015. No such documents were filed by the applicant.
On 2 November, an order was made listing the matter for a show cause hearing today. The grounds of the application are as follows:
1. I cannot afford to be a victim of the Refugee Review Tribunal Member's purported decision as I was invited to appear before the Tribunal at 9 am on 3 June 2015 to give evidence but the Tribunal Member made a decision on 15 May 2015 before my hearing was conducted. It is a matter of life and I am in need of justice.
2. I believe the Tribunal's decision has involved an error of law.
3. I argue that the Refugee Review Tribunal Member's decision was taken in breach of procedural fairness and natural justice.
In relation to ground 1, it is correct that the applicant was sent a letter on 18 March 2015 by the Tribunal, inviting the applicant to attend a hearing on 3 June 2015. That letter was sent to the applicant’s address as identified in the application for review. That letter enclosed a response to a hearing invitation and requested that it be completed within seven days after receiving the letter.
No response to hearing invitation was at that stage completed by the applicant, and the Tribunal sent a further letter on 7 April 2015 rescheduling the hearing and inviting the applicant to attend a hearing to take place on 13 May 2015. That letter also enclosed a response to hearing invitation and also invited the applicant to complete the form within seven days of being notified of this letter, and it was sent to the applicant’s correct address as identified in the application for review. The letter also noted:
If you do not attend the scheduled hearing, the Tribunal will make a decision without taking any further action to allow or enable you to appear before it.
The applicant did not appear in response to the invitation and did not make contact with the Tribunal to inform the Tribunal of any change in her contact details or provide any reason why she was unable to attend. I accept the first respondent’s submission that the Tribunal complied with the obligation under s.425 in inviting the applicant to attend the rescheduled hearing, and that the notice of invitation complied with s.425A, and that the applicant was taken to have received the document in accordance with s.441C.
In those circumstances, I accept the first respondent’s submission that ground 1 failed to disclose any arguable case. Ground 2 is a bare allegation of an error of law and does not disclose any arguable jurisdictional error. Relevantly, the Tribunal said:
38. The Tribunal, therefore, is not in a position to be satisfied as to any substantive aspect of the applicant’s claims. The Tribunal is not satisfied that the applicant was a member of the RPP and attacked by members of the YCL or Maoists as a result. The Tribunal is not satisfied that the applicant is a person who is of adverse interest to the YCL or Maoists. The Tribunal is not satisfied that there is a real risk of significant harm to the applicant on the basis of any past involvement in the RPP, or having been the subject of past adverse attention by the YCL or Maoists. The Tribunal is not satisfied that the applicant faces a real risk of significant harm on the basis of having left her family and lived in Australia for a period of time. The Tribunal is not satisfied that the applicant has in the past suffered domestic violence from her husband or that there is a real risk of significant harm to the applicant on that basis. The Tribunal is not satisfied that the applicant’s husband has a drinking or gambling problem that creates a real risk of significant harm to the applicant.
39. In summary, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that she will suffer significant harm for the purposes of s.36(2)(aa).
40. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the complementary protection criterion. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa). As discussed, the criterion in s.36(2)(a) has already been determined.
41. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
In relation to ground 3, I accept the first respondent’s submission that this is a bare allegation, of denial of procedural fairness and natural justice, and does not identify any arguable jurisdictional error.
From the bar table, the applicant explained that she sent a response to hearing invitation that was received by the Department on 21 May 2015 after the delivery of the Tribunal’s reasons on 15 May 2015, and after the applicant had been to see a lawyer in relation to that decision before sending in the response. Nothing was said by the applicant from the bar table to identify any arguable jurisdictional error. The application fails to disclose an arguable case for the relief claimed.
I am satisfied that this is an appropriate case to exercise the Court’s powers under r.44.12(1)(a) of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12(1)(a) of Federal Circuit Court Rules 2001.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 4 November 2015