BFN15 v Minister for Immigration

[2016] FCCA 1427

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFN15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1427

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – show cause hearing – whether the Tribunal erred in making adverse credibility findings – real chance test – whether the applicant had a genuine hearing – whether the Tribunal made a jurisdictional error – show cause hearing – no jurisdictional error identified – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12.

Migration Act 1958 (Cth), ss.36(2), 476.

Cases cited:

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

Applicant: BFN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1822 of 2015

Judgment of: Judge Street

Hearing date: 10 June 2016

Date of Last Submission: 10 June 2016

Delivered at: Sydney

Delivered on: 10 June 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the First Respondent: Ms B Griffin
Australian Government Solicitor

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 $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1822 of 2015

BFN15

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 in respect of a decision of the Tribunal made on 26 May 2015, 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 India and his claims were assessed against that country.  The applicant has a long migration history.  The applicant first arrived in Australia on 24 May 2008 on a subclass 573 visa using his Indian passport.

2. The applicant’s second student visa was cancelled on 27 January 2012.  The decision was affirmed by the Tribunal on 25 March 2013.  The applicant unsuccessfully sought ministerial intervention and was informed on 27 November 2013 that he did not meet the guidelines. The applicant then remained unlawfully in Australia from 28 January 2012 until 13 May 2013.  In summary, the applicant claimed to fear harm because his mother had financed his studies in Australia by borrowing from money lenders, which he could not afford to repay.

3. The applicant alleged he feared harm by the money lenders who had links to corrupt politicians and police and would kill him if he returned to India.  The applicant also claimed that he did not want to return to India because he felt that his student visa had been unfairly cancelled.  The applicant also claimed that his mother advised him not to return to India because the relevant creditor would kill her or the applicant.  The delegate found that the applicant did not have any genuine fear of persecution in India and found that the applicant’s claims of being threatened by his mother’s creditor were not credible. 

4. It was in those circumstances on 7 July 2014 that the delegate refused to grant the applicant a protection visa.  On 5 August 2014 the applicant sought review.  On 7 April 2015 the Tribunal invited the applicant to attend the hearing on 4 May 2015.  The applicant attended on that day to give evidence and present arguments.  The Tribunal referred to the delegate having found the applicant was not a truthful witness.  The Tribunal said that, having considered all the evidence, it did not accept the applicant was a truthful witness.

5. The Tribunal considered that the applicant showed a considerable willingness to manufacture evidence and to alter evidence when inconsistency or concerns were raised with him.  The Tribunal considered that the applicant has manufactured his claims in an attempt to delay his stay or remain in Australia.  The Tribunal found the applicant had provided untruthful evidence about his studies and since being in Australia he has completed only one course.  The Tribunal found that the applicant’s pursuit of the ministerial intervention was another means of the applicant remaining in Australia and that it was for this reason that he lodged an application for protection relying on fabricated claims.

6. The Tribunal found that it did not accept the applicant’s claims and found the applicant is an untruthful witness who has fabricated the totality of his claims to fear harm in India.  The Tribunal did not accept that the loan document provided to the Department and the Tribunal was a genuine document.  The Tribunal found that it was fabricated for the purpose of the application and gave it no weight.  The Tribunal found that the applicant did not have a well-founded fear of persecution if he returns to India now and in the reasonably foreseeable future.

7. The Tribunal also found that it was not satisfied there is a real risk the applicant would suffer significant harm if removed from Australia to India. It was in those circumstances that the Tribunal found that the applicant did not meet the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the Tribunal. 

8. On 23 July 2015, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.

9. On 8 April 2016, this matter was fixed for a show cause hearing today and a further opportunity was given to the applicant to file an amended application, affidavit evidence and submissions.  No such documents were filed.  At the commencement of the hearing the Court explained to the applicant that a show cause hearing was to determine whether or not the applicant had an arguable case.  The Court explained that the applicant had to show an arguable case of legal error in the decision of the Tribunal.

10. The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that this meant, in summary, the Court had to be satisfied that there was a reasonable argument that the Tribunal’s decision was not made lawfully or was unfairly made.  The Court explained that it would have identified the evidence and then hear submissions from the applicant and, provided that the applicant put submissions, the Court would hear submissions from the first respondent and then hear the applicant in reply.

11. The applicant confirmed that he understood the nature of the hearing as explained by the Court.  The ground of the application is as follows

    1. I am not satisfied with tribunal decision

12. The applicant indicated that whatever he had to say was in the documents and he did not have anything else he wanted to put.  It was in those circumstances that the Court indicated that it did not need to hear from the solicitor for the first respondent.  The grounds identified in the application are patently insufficient to identify any arguable legal error.

13. The applicant’s dissatisfaction with the decision of the Tribunal is not a ground that constitutes any error in the decision-making of the Tribunal.  It is apparent from the material before the Court that the applicant had a genuine hearing and that the Tribunal complied with its statutory obligations in the conduct of that hearing.  There is nothing on the face of the material before the Court to support the contention that the applicant was denied procedural fairness in the conduct of the hearing or the decision of the Tribunal.

14. I take into account the principles and caution in  Spencer v the Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, and, in particular, [24]-[25] and [59]-[60]. I am satisfied that the application fails to disclose any arguable jurisdictional error. I am satisfied that this is an appropriate manner in which to exercise the Court’s powers under r.44.12 in the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules2001.

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

Date: 22 June 2016