BDF16 v Minister for Immigration

[2016] FCCA 2392

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDF16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2392

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – application of s.494C – whether the Tribunal complied with its statutory obligations – whether the Tribunal afforded the applicant procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36, 425, 422B, 426A, 494C.

Federal Circuit Court Rules 2001, r.44.12.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118.

Applicant: BDF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1183 of 2016

Judgment of: Judge Street

Hearing date: 13 September 2016

Date of Last Submission: 13 September 2016

Delivered at: Sydney

Delivered on: 13 September 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S Burnett
Clayton Utz

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1183 of 2016

BDF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 April 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Indonesia and his claims were assessed against that country.

2. The applicant claimed to have attended demonstrations against the Indonesian Government and against government corruption and alleges that he was detained for one week because of certain protests and that in April 2012 he was arrested by police because he attended a demonstration against government policy and government corruption.

3. The applicant says he was detained for four days and that in October 2013 he was detained for one week, because of this kind of activity, and that that was why he left Indonesia.  The applicant claims to fear harm from the Indonesian Government and the police if he goes back to Indonesia.

4. The applicant arrived in Australia on 8 January 2014 holding a subclass 600 Tourist visa. This was valid until 8 April 2014.  The applicant arrived in Australia using his passport that was issued in December 2011. The applicant’s passport indicates that he travelled to Malaysia and Singapore in July 2012 and Korea in 2013. The application for protection was lodged on 3 April 2014. 

The Delegate’s Decision

1. On 7 November 2014, the delegate made a finding that the delegate was not satisfied the applicant has a real chance of being persecuted for Refugees Convention reason and was not satisfied the applicant had a well-founded fear of persecution.

2. The delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia there is a real risk the applicant will suffer significant harm. 

The Tribunal’s Decision

1. The applicant applied for review on 10 December 2014. In the application for review, the applicant identified a PO Box address for the purpose of receipt of correspondence. A letter dated 12 December 2014 was sent to that PO Box acknowledging the application for review.

2. On 14 March 2016, the Tribunal sent a letter to that PO Box informing the applicant that the Tribunal had considered the material before it, but was unable to make a favourable decision on the information alone and invited the applicant to attend a hearing on 7 April 2016.  The applicant failed to attend that hearing. 

3. The Tribunal correctly identified the relevant law and set out the applicant’s claims and evidence. The Tribunal noted that the applicant had not appeared at the interview before the delegate. The Tribunal noted that the letter had been sent inviting the applicant to appear to the applicant’s address. Under s.494C of the Act, the applicant is taken to have received that letter.

4. The Tribunal considered whether it should proceed to make a decision. On 8 April 2016, in the circumstances, pursuant to s.426A of the Act the Tribunal decided to make a decision on review without taking any further action to enable the applicant to appear before it.

5. The Tribunal noted the obligation of the applicant, in relation to s.5AAA of the Act and, in light of the absence of the applicant at the hearing, found that it had insufficient evidence to make a favourable decision in relation to the applicant.

6. The Tribunal identified issues that it would have explored with the applicant in relation to his alleged arrests as well as in relation to his passport, but it did not have the opportunity to pursue. It is in those circumstances the Tribunal found it was not satisfied the claims made by the applicant were credible. 

Protection Obligations Assessment

1. The Tribunal was not satisfied on the evidence before it, that the applicant faces adverse interest in Indonesia in the future. The Tribunal did not accept that the applicant had a well-founded fear of persecution in Indonesia and was not satisfied the applicant met the criterion in s.36(2)(a) of the Act.

Complementary Protection Assessment

1. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk the applicant will suffer significant harm for the purposes of s. 36(2)(aa) of the Act. The Tribunal affirmed the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

Proceedings Before this Court

1. On 30 June 2016 a Registrar of the Court made orders fixing the matter today for a show cause hearing under r. 44.12 of the Federal Circuit Court Rules 2001. The Registrar made orders providing the applicant with an opportunity to file an amended application, affidavit of evidence and submissions. No such documents were filed. 

2. The grounds of the application are as follows:-

   1. The decision of the Administrative Appeals Tribunal was made in error of jurisdiction, therefore, null and void.

   2. The Tribunal has ignored relevant consideration in making the decision.

   3. The Tribunal did not provide the applicant with the opportunity to comment on the information, and the information is against the applicant.

3. At the commencement of the hearing, the Court explained to the applicant that the matter had been fixed for a show cause hearing for the Court to determine whether the applicant had an arguable case.  The Court explained that an arguable case required a reasonable argument and that the Tribunal’s decision was affected by relevant legal error. 

4. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial or procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether there was a reasonable argument that the Tribunal’s decision was unlawful or a reasonable argument that the Tribunal’s decision was unfair.

5. The Court explained that if the Court was satisfied that there was a reasonable argument that the Tribunal’s decision was affected by relevant legal error, the matter would be fixed for hearing on another day. The Court explained that if the Court was not satisfied that there was a reasonable argument that the Tribunal’s decision was affected by relevant legal error, the application would be dismissed. 

6. The Court explained to the applicant it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that the understood the nature of the hearing, as explained by the Court.

7. From the bar table, the applicant maintained that he wanted to put on evidence relating to the substantive claims. The applicant proffered an explanation as to why there was a period between the arrests and also an explanation in relation to the use of his passport in coming to Australia. 

8. The applicant put from the bar table, that he had not received the letter sent to the PO box address of 14 March 2016. The applicant did not give any satisfactory explanation as to why he did not put on any affidavit evidence to support that proposition.

9. Further, the applicant accepted that the letter inviting him to appear was sent to his correct address and the applicant did not suggest that he had not received the correspondence sent to that address dated 12 December 2014 nor, perhaps more relevantly, a notification in relation to the Tribunal’s decision of 11 April 2016 sent to the same address.

10. The invitation to appear on the evidence before the Court, was sent to the correct address and the applicant was taken to have received the invitation in accordance with s.494C of the Act. What was said by the applicant from the bar table in relation to the desire to put on evidence and his submissions about his explanation, went to the merits of the matter.

11. This Court is not in a possession to make fresh findings of fact in relation to the merits. The Court has no power to receive further evidence in relation to the substantive claims. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. Further, in relation to s.422B of the Act, the Tribunal complied with its obligation in relation to s.425 of the Act.

Consideration

1. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review, in accordance with the provisions of the Act. I accept the submission of the first respondent that, on the face that the three grounds do not identify any arguable jurisdictional error.

2. Ground 1 is a bare assertion of error unsupported by any identified basis to disclose any arguable jurisdictional error. 

3. Ground 2 fails to identify any relevant consideration that was not taken into account and accordingly fails to identify any arguable jurisdictional error.

4. Ground 3 is inconsistent with the invitation sent to the applicant’s address identified on the review application and to the extent that the Tribunal referred to country information it was entitled to do so.  There are no particulars to support any arguable case in relation to Ground 3. Ground 3 fails to identify any arguable case of jurisdictional error.

Conclusion

1. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am satisfied that the application fails to disclose any arguable jurisdictional error.

2. The Court explained to the applicant that it did not have power to make fresh findings of fact in relation to the applicant’s claims. Nothing said by the applicant identified an arguable jurisdictional error.

3. I am satisfied this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. 

4. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 December 2016