BIA16 v Minister for Immigration and Border Protection
[2018] FCA 95
•13 February 2018
FEDERAL COURT OF AUSTRALIA
BIA16 v Minister for Immigration and Border Protection [2018] FCA 95
Appeal from: Application for leave to appeal: BIA16 v Minister for Immigration and Border Protection [2017] FCCA 2066 File number: VID 935 of 2017 Judge: TRACEY J Date of judgment: 13 February 2018 Date of publication of reasons: 14 February 2018 Catchwords: MIGRATION – application for leave to appeal from an order of the Federal Circuit Court (“FCC”) – where the FCC had made an order dismissing an application for judicial review pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) because the application did not raise an arguable case for the relief claimed – where the applicant had applied to the FCC following a decision by the Administrative Appeals Tribunal affirming a decision by a delegate of the Minister to refuse to grant him a protection (class XA) visa – where the applicant claimed to fear persecution from the Sri Lankan authorities because of his suspected involvement with the Liberation Tigers of Tamil Eelam – whether sufficient doubt attends the correctness of the FCC’s judgment and whether substantial injustice would be suffered by the applicant if leave to appeal were refused Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a) Cases cited: BIA16 v Minister for Immigration and Border Protection [2017] FCCA 2066
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844
Date of hearing: 13 February 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms M Stone of DLA Piper Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 935 of 2017 BETWEEN: BIA16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
13 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The applicant’s application for leave to appeal be refused.
2.The applicant pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
TRACEY J:
This is an application for leave to appeal from a judgment of the Federal Circuit Court (“the FCC”) in BIA16 v Minister for Immigration and Border Protection [2017] FCCA 2066. The primary judge dismissed an application by BIA16 for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal had affirmed the decision of the Minister not to grant BIA16 a protection (class XA) visa. The primary judge made her order pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
BIA16 arrived in Australia as an unlawful maritime arrival in July 2012. He is a Sri Lankan citizen. Later that year he applied for the visa. He made various claims. In particular, he claimed to fear harm from the Sri Lankan Criminal Investigation Department because they suspected him of involvement with the Liberation Tigers of Tamil Eelam. A delegate of the Minister refused the application.
BIA16 appealed to the Tribunal. He was represented before the Tribunal by a migration agent. A large volume of country information was provided to the Tribunal by both BIA16’s agent and by the Department. Having considered this material and submissions made on behalf of BIA16 the Tribunal concluded that he did not face a real risk of significant harm for a convention reason upon return to Sri Lanka or because any such return would be in the capacity as a failed asylum seeker.
BIA16 sought judicial review of the Tribunal’s decision in the FCC. His ground was that the decision was affected by jurisdictional error. Three particulars were provided:
a.The Tribunal has again miscarried in its statutory task, namely by failing to form for itself, on the material before it, the requisite state of satisfaction under s 65 of the Migration Act 1958 (Cth) (“the Act”) in respect of the Applicant’s claim that he was at real risk of serious or significant harm as a result of returning to Sri Lanka without a Sri Lankan passport as a failed asylum seeker from ‘the West’ and/or in its assessment of the accumulation of his claims including that claim.
b.The Tribunal’s lack of discussion of the question of bail which is often discussed at a variety of Country Reports was not raised by the tribunal, i.e. that the Applicant or his family or someone else would be able and willing to provide the guarantee required for the Applicant’s bail when he returned to the country was not discussed and this is a relevant factor which was “adverse” to the Applicant.
c.The Tribunal did not give the Applicant “the opportunity of ascertaining” that issue or the opportunity “to be informed of the nature and content of adverse material” in relation to that issue.
BIA16 appeared in person before the FCC. As a result the primary judge carefully examined the Tribunal’s reasons. Her Honour was unable to discern any reviewable error in those reasons and concluded that BIA16 had failed to raise any arguable case of jurisdictional error by the Tribunal. She dismissed the application.
BIA16 has now sought leave to appeal from the FCC’s decision. He has not filed a draft notice of appeal. He has, however, in his application for leave to appeal, identified one ground. It was that the decision of the FCC was affected by jurisdictional error. The same three particulars as appeared in the ground relied on by him in the FCC were subjoined to this ground. BIA16 said that the ground and particulars had been drafted for him by him by a lawyer. He had no personal understanding of what had been written. I have, as a result, proceeded on the basis that BIA16 contends that the FCC erred by not upholding his application in that case.
BIA16 appeared in person this afternoon. He had the assistance of a Tamil interpreter. The FCC’s decision and the Minister’s submissions to this Court were translated for BIA16 prior to the hearing.
When invited to make any submissions which he wished in support of his application BIA16 said that he had tried many lawyers but had been unable to find one who he was able to afford. Legal Aid was not able to take his case. He said that if he had more time he might be able to find a lawyer. I took this to be an application for an adjournment for an indefinite period.
As counsel for the Minister pointed out a similar application had been made in the FCC. At the time of the hearing in that court 14 months had elapsed since the filing of his application for judicial review. I note that a further six months has elapsed since that hearing. In these circumstances I have no confidence that any further delay would result in BIA16 obtaining legal representation.
In order to succeed on his application BIA16 must satisfy this Court that sufficient doubt attends the correctness of the FCC’s judgment to warrant review and, further, on the assumption that the judgment was wrong, that substantial injustice would be suffered by BIA16 if leave to appeal were to be refused: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844.
I have carefully examined the reasons of the Tribunal and those of the primary judge. Like the primary judge I am unable to discern any jurisdictional error which would warrant curial intervention to disturb the Tribunal’s decision. Nor am I able to discern any appealable error in the reasoning of the primary judge.
In these circumstances I do not consider that the FCC’s judgment gives rise to any sufficient doubt which would warrant intervention by this Court.
The application must be refused with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 14 February 2018
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