BGS15 v Minister for Immigration

[2016] FCCA 1416

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGS15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1416

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause – whether the Tribunal fully considered the applicant’s circumstances – whether the Tribunal failed to consider an integer of the applicant’s claims – real chance test – 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: BGS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1866 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: Mr M Weise
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 $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1866 of 2015

BGS15

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 15 June 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 Sri Lanka and his claims were assessed against that country.

2. The applicant arrived in Australia as an irregular maritime arrival on 20 June 2012.  The applicant claims to fear harm by reason of his ethnicity, being a Tamil and imputed political opinion, and by reason of being a member of particular social groups. 

3. On 30 September 2013, the delegate rejected the applicant’s application for a protection visa.  The applicant applied for review on 3 October 2013, and the applicant was invited by letter dated 17 December 2014, to appear before the Tribunal.  On 14 January 2015, the applicant appeared on that date to give evidence and present arguments and the hearing was conducted with the assistance of an interpreter. The applicant was represented by his registered migration agent.

4. The Tribunal noted that the applicant did not claim to face racially motivated harm in Sri Lanka and the Tribunal found it was not satisfied the applicant faced a real chance of being seriously harmed by Sri Lankan authorities on account of his race as a Tamil if he returns to Sri Lanka.  The Tribunal found that it was not satisfied that the applicant faced serious harm amounting to persecution for any Convention reason because of his Tamil race/ethnicity, his actual or imputed political opinion or his membership of a particular social group if returned to Sri Lanka.

5. The Tribunal found that the applicant’s fear of persecution for Convention reasons was not well-founded.  The Tribunal was not satisfied there are substantial grounds for believing that there was a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm during any period which he may spend in prison or remand.

6. It is in those circumstances, the Tribunal found in relation to complementary protection, that it was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will be deprived of his life or that the death penalty will be carried out on him or that he will be subject to torture or cruel or inhumane treatment, or punishment or subject to degrading treatment or punishment. 

7. 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 delegate.

8. On 30 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. The ground of the application is as follows:

   1. If I return to Sri Lanka I will be persecuted as I am a Tamil. RRT did not look at this in great detail.

10. On 8 April 2016, the matter was listed for a show cause hearing for today.  A further opportunity was given to the applicant to file amended application, affidavit and some submissions.  No such documents were filed. 

11. The Court explained to the applicant the nature of the show cause hearing. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

12. The Tribunal addressed the applicant’s claimed fear of harm by reason of being a Tamil, and made an adverse finding of fact.  Ground 1 of the application fails to identify any arguable jurisdictional error.  The applicant indicated that he did not want to return to Sri Lanka and wanted another chance to be heard before the Tribunal.  Nothing said by the applicant identified any arguable jurisdictional error.

13. I take into account the principles and caution in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, and, in particular paras.[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 matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2016