BGP16 v Minister for Immigration (No. 2)

[2016] FCCA 2660

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGP16 v MINISTER FOR IMMIGRATION & ANOR (No. 2) [2016] FCCA 2660

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal complied with its statutory obligations – whether the Tribunal made adverse findings lacking an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.3, 476

Federal Circuit Court Rules 200, r.13.03C(1)(c)

Applicant: BGP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1315 of 2016

Judgment of: Judge Street

Hearing date: 13 October 2016

Date of Last Submission: 13 October 2016

Delivered at: Sydney

Delivered on: 13 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms G Doyle

Sparke Helmore

ORDERS

1. The Applicant’s oral application in a case to set aside the orders made under r.13.03c(1)(c) of the Federal Circuit Court Rules 2001 be heard forthwith and dispense with the need for the filing of any document in that regard.

2. Orders 1 and 2 made by the Court earlier today are set aside.

3. The matter is fixed for final hearing today at 3:00 PM.

4. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1315 of 2016

BGP16

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 the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 May 2016 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of India. 

2. The applicant applied for a subclass FA 600 (Business Visitor) visa on 7 May 2013 which was granted on 8 May 2013. On 2 June 2013, the applicant arrived in Australia as the holder of a subclass FA 600 (Business Visitor) visa valid until 1 May 2014. 

3. On 30 June 2013, the applicant departed Australia as the holder of a subclass FA 600 (Business Visitor) visa and travelled to India. The applicant re-entered Australia on that visa on 1 February 2014 and has not since departed Australia.  The applicant applied for protection on 30 April 2014.  The applicant claimed to fear harm from a group called the Naxalites.  The applicant claimed that on two occasions member of the Naxalites group approached the applicant in his home and invited him to join the Naxalites group which he declined. 

4. The applicant alleged two months later he was again approached and kidnapped and held captive in a jungle camp for about two months.  The applicant alleges that he somehow escaped and had the opportunity to go to Australia with his employer in June 2013.  When the application returned to India in June 2013 the applicant says he was again kidnapped for two months and taken into the jungle and tortured and threatened.  The applicant says he got a chance to escape and returned to Australia. 

The Delegate’s Decision

1. The applicant fears that if returned to India, he will be killed by the Naxalites. The delegate found the applicant’s claims, that he was abducted by the Naxalites in March 2013 and held for almost two months, to not be credible. The delegate found the Naxalites did not threaten to harm the applicant’s family. The delegate found the applicant’s claim that he was abducted a second time by the Naxalites in 2013 for more than two months not to be credible. The delegate found the applicant not to be a credible witness.

2. The delegate was not satisfied that the applicant had a real chance of persecution for a Refugees Convention reason and was not satisfied the applicant’s fear was well-founded. The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India there was a real risk the applicant will suffer significant harm. The delegate found on 12 January 2015 that Australia did not have protection obligations to the applicant and was not satisfied that the criterion under section 36(2) of the Act was met.

The Tribunal’s Decision

1. On 3 February 2015, the applicant applied for review to the Refugee Review Tribunal. By letter dated 8 April 2016, the applicant was invited to attend a hearing before the Administrative Appeals Tribunal on 28 April 2016.  The applicant appeared on that date to give evidence and present arguments. The applicant indicated at the hearing that he did not require an interpreter. A transcript of the hearing has been tendered and the transcript reveals the applicant was able to comprehend and understand and engage with the Tribunal Member in a responsive fashion, as the Tribunal Member raised concerns in relation to the applicant’s claims.

2. The applicant had a real and meaningful opportunity on the face of the transcript to give evidence and present arguments. The Tribunal identified the relevant law in an attachment to the Tribunal’s reasons.  The Tribunal identified the applicant’s claims and evidence. The Tribunal found the applicant to be a highly unreliable witness. The Tribunal found the applicant’s evidence about the Naxalites abducting him to be vague and implausible.  The Tribunal found the applicant had been inconsistent about his escaping from the Naxalites. 

3. The Tribunal did not accept that the applicant was a truthful witness for the reasons set out in the Tribunal’s reasons. The Tribunal did not accept that the applicant was abducted by the Naxalites prior to coming to Australia in June. The Tribunal found the applicant had fabricated claims about the second abduction as well. The Tribunal did not accept on the evidence before it, that the applicant or his family had been harassed by the Naxalites. The Tribunal was not satisfied that the Applicant faces a real chance of Convention-related persecution in India in the reasonably foreseeable future. 

4. The Tribunal found the applicant’s claimed fear of Convention-related persecution was not well-founded and that the applicant was not a refugee. The Tribunal found that the applicant did not satisfy the criterion under s.36(2)(a) of the Act. The Tribunal made reference to the comprehensive lack of reliability of the applicant as a witness and 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 India, there is a real risk the applicant will suffer significant harm.

5. The Tribunal was not satisfied that the applicant was a person whom Australia owed protection obligations under s.36(2)(aa) of the Act and found that the Applicant failed to meet the criteria under s.36(2) 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. These proceedings had originally been listed for hearing today at 10:15 am and orders were made under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 dismissing the application for want of appearance by the applicant. 

2. Later in the day, the applicant appeared before the Court and made an oral application to set aside the orders earlier made. The Court heard an explanation as to why the applicant had failed to appear and in the course of argument, the first respondent consented to the orders earlier made in the day being set aside. The Court then fixed the matter for hearing at 3:00 pm this afternoon. 

3. At the commencement of the hearing, the Court explained to the applicant that the matter was listed for final hearing. The Court explained that the final hearing was to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained, that in summary, this meant that the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair. The Court explained to the applicant that if it was satisfied that the Tribunal’s decision was affected by relevant legal error, the decision would be set aside and sent back for further hearing.  The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed. 

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

5. On 21 July 2016 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. Submissions were handed up in the Court today and an affidavit was filed annexing the transcript. No other document was filed. 

6. The submissions in writing by the applicant, advanced a proposition that the Tribunal misunderstood the applicant’s evidence in relation to the Naxalites. There is nothing in the transcript before the Court to identify any misunderstanding by the Tribunal of the applicant’s evidence.

7. The reasons of the Tribunal in relation to the applicant’s claims concerning the Naxalites equally do not disclose any misunderstanding by the Tribunal of the applicant’s evidence. From the bar table, the applicant maintained that he was telling the truth and that he did not know the exact dates. 

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

   1.   The Tribunal misunderstood my claim because of my poor language.

   2.   I will provide an amended application when I receive copy of my file as well as I will provide a Record of Interview.

   3.   The Tribunal took part of my evidence and was not satisfied that I am truthful witness. This issue is not based on strong evidence.

   (All errors in the original)

9. I accept the submission of the first respondent in relation to Ground 1, that the transcript reveals that the applicant was able to participate in a real and meaningful hearing. There is nothing on the face of the transcript to suggest that the applicant’s language gave rise to any difficulty in presenting the applicant’s evidence or presenting the applicant’s arguments. I am satisfied the applicant had a real and meaningful hearing before the Tribunal. On the face of the material before the Court, the Tribunal correctly identified the applicant’s claims and complied with the statutory obligations in the conduct of its review. 

10. There is nothing on the face of the material before the Court to establish any want of compliance with the obligations of procedural fairness by the Tribunal in the conduct of its review. I note in relation to Ground 1 that the applicant did not request an interpreter during the hearing before the Tribunal and that there was no complaint or expressed difficulty in understanding the Tribunal member in the course of that hearing.  Ground 1 fails to establish any jurisdictional error. 

11. Ground 2 is merely an assertion of fact and fails to identify any jurisdictional error. 

12. In relation to Ground 3, the adverse findings by the Tribunal in respect of the applicant’s credit were open on the material before the Tribunal.  The adverse findings cannot be said to lack an evident and intelligible justification.  Ground 3 fails to establish any jurisdictional error. 

13. The applicant’s written submissions and the applicant’s oral submissions were in substance, an invitation for this Court to engage in an impermissible merits review. This Court does not have the power to make fresh findings of fact or to review the merits.  Nothing said by the applicant from the bar table or in the written submissions identifies any jurisdictional error by the Tribunal. 

14. The application is dismissed. 

I certify that the preceding twenty-five 25 paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 October 2016