BEU16 v Minister for Immigration

[2017] FCCA 3385

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEU16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3385

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: BEU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1039 of 2016

Judgment of: Judge Riethmuller

Hearing date: 11 December 2017

Date of Last Submission: 11 December 2017

Delivered at: Melbourne

Delivered on: 11 December 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1039 of 2016

BEU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant arrived in Australia in July 2012 as an illegal maritime arrival.  The applicant’s claim is related to his and his father’s involvement in politics as set out at p.87 of the Court Book.  The applicant said that his father was a United National Party of Sri Lanka (“UNP”) voter, but never involved in politics.  The applicant said that in around 1993 or 1994 his father was asked to join the People Alliance Party (“PA”).  The applicant said that his father was badly beaten and a couple of months later committed suicide.

3. The applicant explained that he was very angry when he fully understood what happened to his father and so joined the UNP in 2006. The applicant said that six months later he was warned by the members of the PA to stop his involvement and the applicant went into hiding after being beaten on four or five occasions. 

4. The applicant said that he went to Qatar for 14 months, but around three months after he returned to Sri Lanka the problems commenced again.  The applicant also says that PA members have come looking for him since he has left Sri Lanka and that in 2016 two men told his wife that when the applicant comes back to Sri Lanka he must report to the PA village organiser.

5. The Tribunal member set out lengthy and detailed reasons as to why the member did not accept the applicant as a credible witness.  The member said:

   [set out paragraph 26 of the reasons]

6. For example, the applicant had said that he campaigned during the parliamentary elections in 2010, but the Tribunal noted that the elections occurred in April 2010 when the applicant was in Qatar. 

7. Although the Tribunal accepted the applicant’s evidence about his father, it did not accept that he joined the UNP in 2006.  The Tribunal noted that the incident with his father had occurred over 20 years ago when the applicant was a child.  As a result, the Tribunal did not find for the applicant on this claim.

8. The Tribunal carefully considered his claims to fear harm based upon returning as a person who departed illegally: see [36] to [42].  The Tribunal also considered all of the applicant’s circumstances cumulatively. 

9. In the proceedings before this Court, the applicant relies upon two grounds for review as follows:

   1. The Administrative Appeals Tribunal did not afford me procedural fairness.

   2. The Administrative Appeals Tribunal applied the wrong legal test.

Ground One

1. The applicant filed no written submissions explaining what he relied upon in support of this ground.  At the hearing before me, the applicant explained that he had told the Tribunal the true story and that they did not accept his evidence. 

2. There is no doubt that the applicant was given a hearing before the Tribunal.  The applicant had the assistance of an interpreter and a representative at that hearing.  Because the delegate had rejected his credibility, the applicant would have been on notice that credibility was a real issue for the Tribunal hearing.  There is nothing in the applicant’s case to indicate that he was denied procedural fairness. 

3. As a result, I find that the applicant has not made out this ground.

Ground Two

1. The applicant had no submissions with respect to this ground.  The applicant said that a lawyer put this ground in his form for him. 

2. The Tribunal set out the law at the commencement of their decision.  The Tribunal’s conclusions appear to be open to the Tribunal on the evidence.  In the circumstances, I therefore dismiss this ground. 

3. As the applicant has not established a ground for review, I dismiss the application.

   [Further argument ensued]

4. In this matter, the applicant has been unsuccessful.  The unsuccessful party to litigation ordinarily pays the successful party’s costs.  In this case, the Minister seeks costs at $5,800, which is less than the scale fee on the Court scale.  I find this is reasonable and will make the costs order accordingly.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 15 March 2018