BHK15 v Minister for Immigration

[2015] FCCA 3416

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHK15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3416

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection visa – Show Cause hearing – whether the application discloses an arguable case of jurisdictional error – no arguable case disclosed – application dismissed under r.44.12.

Legislation:

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

Federal Circuit Court Rules 2001, r.44.12

Applicant: BHK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1894 of 2015

Judgment of: Judge Street

Hearing date: 18 December 2015

Date of Last Submission: 18 December 2015

Delivered at: Sydney

Delivered on: 18 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms S Sangha
Mills Oakley

ORDERS

1. The application is dismissed pursuant to 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 $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1894 of 2015

BHK15

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 (Cth) in respect of a decision of the Tribunal made on 5 June 2015 affirming a decision of the delegate not to grant the application visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

2. On 12 May 2015, the applicant attended a hearing before the Tribunal to give evidence and present arguments and was assisted by an interpreter as well as being assisted by his registered migration agent.  Prior to the hearing, the applicant’s migration agent had provided submissions to the Tribunal dated 6 January 2015 which were identified as being the same submissions provided to the Tribunal on 5 May 2015 shortly before the hearing and the Tribunal identified and took into account further submissions provided after the hearing date 2 June 2015.

3. The applicant claimed to fear harm from the Karuna Group and the Sri Lankan army.  The applicant claimed his father had been shot by the SLA in 1985 when the applicant was a child.  The applicant claimed around March 2006 the Karuna Group and alleged that he was helping the LTTE.  The applicant denied this allegation and no further action was taken. 

4. The applicant claimed that on or around 9 September 2006, he was caught up in fighting at shopping centre between the LTTE and the Karuna Group.  The applicant alleged that someone from the Karuna Group hit him in the chest with a rifle butt.  The applicant travelled by boat to India in 2006 where he remained for six years before travelling by boat to Australia in June 2012. 

5. The delegate accepted that the Karuna Group questioned the applicant in his home in March 2006 about his imputed association with the LTTE and that the applicant was the subject of being struck by a rifle butt at a shopping precinct in September 2006 and accepted that the applicant’s father had been shot by the SLA.  However, on the basis of the country information, the delegate was not satisfied that the application faced a real risk of persecution or a real risk of significant harm. 

6. On 6 August 2015, a Registrar of the Court made orders providing an opportunity to the applicant for the filing of an amended application, further affidavit evidence and submissions. No such documents were filed. The Registrar on that date ordered the matter be listed today for hearing under r.44.12 of the Federal Circuit Court Rules 2001. At the commencement of the hearing today, the Court explained the nature of the hearing under r.44.12 of the Federal Circuit Court Rules 2001 and the applicant confirmed that he understood the nature of the hearing. 

7. The grounds in the applicant’s application are as follows:

   1. That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

   2. More details will be provided by the legal representative.

8. It is apparent from the Tribunal’s reasons that it identified the applicant’s claims, including the incident in the shopping centre and his father being shot and the questioning by the Karuna Group.  The Tribunal accepted certain of the applicant’s claims, but did not find that the incident in the shopping centre was one for a Convention reason and found it was a random event.  The Tribunal found that the applicant did not have a profile of someone who had actual perceived links with the LTTE.  The Tribunal did not accept that the Karuna Group continues to exist and operate. 

9. The Tribunal expressly referred to the taking into account of the PAM3 Guidelines and was not satisfied that there was a real risk the applicant would suffer serious harm in the reasonably foreseeable future for a Convention reason if he returned to Sri Lanka and did not accept that the applicant had a well-founded fear of persecution for Convention reasons. The Tribunal was not satisfied that there were reasonable grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there was a real risk that he would suffer significant harm. 

10. It was in those circumstances the Tribunal found the applicant was not a person in respect of whom Australia had a protection obligation and that the criteria under ss.36(2(a) and 36(2)(aa) had not been satisfied. 

11. Ground 1 is a generalised assertion of legal error and fails to identify any arguable jurisdictional error.  Ground 2 fails to identify in a matter that could constitute a jurisdictional error.  From the bar table, the applicant repeated some of his claims and maintained that he could not go back to Sri Lanka and that he was fearful for his life if so returned.  The applicant also made reference to his wife and child living in India.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error.  The application fails to disclose any arguable case.

12. I am satisfied that this is an appropriate matter in which to exercise the court’s powers under r.44.12. Accordingly, the application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 18 December 2015