BKS16 v Minister for Immigration
[2018] FCCA 3602
•4 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKS16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3602 |
| Catchwords: MIGRATION – Protection visa – very limited information given to support protection claim – applicant failed to persuade tribunal of his claims – no jurisdictional error. |
| Legislation: Migration Act 1958, ss 36, 425, 425A, 426A, 430 |
| Cases Cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 BYM16 v Minister for Immigration and Border Protection [2017] FCA 326 CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 MZARG v Minister for Immigration and Border Protection [2018] FCA 624 SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | BKS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1210 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing dates: | 15 November and 4 December 2018 |
| Date of Last Submission: | 4 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 4 December 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application filed 9 June 2016 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5 400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1210 of 2016
| BKS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
On 15 November 2018 I adjourned the further hearing of this application to enable the applicant to obtain legal advice because he said he wanted to advance certain propositions of fact and law. I fixed the further hearing of this case for today. Today the applicant informed me that he had, in the intervening period, consulted a migration agent and that he had obtained legal advice from that migration agent. The migration agent apparently was not a legal practitioner and therefore did not represent the applicant before me today.
The applicant applied to adjourn the further hearing of this case before me today. He said he had been unable to secure an appointment with the same legal practitioner who had advised him about his legal position in 2016. With the benefit of that information, it struck me that the applicant had received advice about his case in 2016 and, more recently within the last two weeks of today, with a consequence that he had obtained time to obtain whatever legal advice he needed for the purposes of this application for judicial review. Ms Nyabally, who appeared for the minister, opposed the grant of any further adjournment.
Refusal of further adjournment
In my view the application to adjourn had no merit and I refuse it and proceed to deliver reasons for judgment.
Synopsis
In my view this application filed 9 June 2016 should be dismissed and I order the respondent’s costs to be paid by the applicant fixed at $5 400.
Short factual recital
On 30 June 2007 the applicant, a male citizen of India, arrived in Australia as the holder of a student visit visa.
He subsequently applied for and was granted two student visas and a skilled (graduate) (subclass 485) visa. His application for a skilled (resident) (subclass 885) visa was refused on 27 March 2014. He remained in Australia as an unlawful non-citizen between April and August 2014.
On 1 October 2014 he lodged a valid application for the visa in issue in this case.
In his visa application he claimed to fear harm on several grounds. Those were extracted by the tribunal in its reasons given on 16 May 2016. Relevantly paraphrased, the applicant contended to fear harm –
a)as life is very hard in India and he did not have any job prospects or opportunity;
b)his family were not supportive;
c)there was too much violence and tension in India with people in his village fighting and wasting time;
d)he would be caught up in the fighting and in the violence in his village;
e)other people and youth gangs would harm or mistreat him; and
f)the authorities would not protect them became police did not care what happened in his village.
On 6 March 2015 a delegate of the minister refused his visa application.
On 23 March 2015 the applicant applied to the tribunal for a merits review.
On 30 March 2016 the applicant was invited by the tribunal to attend a hearing scheduled for 13 May 2016.
On 8 April 2016 the applicant informed the tribunal that he would attend the scheduled hearing
On 11 May 2016 the applicant’s representative, then appointed, wrote to the tribunal requesting the postponement of the hearing and on 12 May 2016 the tribunal refused the postponement request.
On 13 May 2016 the applicant’s representative telephoned the tribunal to inform the tribunal that the applicant was unwell and may not attend the hearing.
After being told of the consequences of not attending, the applicant did not attend the hearing on 13 May 2016.
On 16 May 2016 the tribunal affirmed the delegate’s decision to refuse the visa.
The tribunal’s reasoning
It is instructive to examine the more important aspects of the reasoning of the tribunal.
In paragraph 3 of its reasons the tribunal stated that it proceeded to make its decision without taking any step to enable the applicant to appear before it and that the tribunal did so pursuant to s 426A and s 430 of the Migration Act (“Act”).
Between paragraphs 11 and 13 of its reasons the tribunal identified the claims the applicant made for protection.
Between paragraphs 18 and 26 of its reasons the tribunal addressed the applicant’s claims.
In paragraph 18 of its reasons the tribunal stated that the applicant provided very little evidence in relation to his protection application and no detail at all as to the harm he had experienced, when he allegedly experienced that harm, the circumstances in which he suffered the alleged harm and who was responsible for harming him.
In paragraph 19 the tribunal said the applicant had not elaborated on the way his life was allegedly hard for him in India, why he had no job prospects or opportunities and why his family would not support him.
In paragraph 20 the tribunal recorded that the applicant provided scant details about the alleged fighting and violence in his village including who was responsible for it or why he would be targeted for that harm.
In paragraph 21 of its reasons the tribunal recorded that the applicant had returned to India on six occasions with his last trip being in 2014 leading to the tribunal expressing serious concerns about his assertion that he would routinely return to India in circumstances where the applicant was fearful of being caught up in fighting and violence in his village in the way he asserted.
Between paragraphs 23 and 26 of its reasons the tribunal stated that based on the very limited evidence before it and on account of the applicant’s failure to attend the hearing to explore his claims, the tribunal was not satisfied that the applicant had a well-founded fear of persecution or was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act or alternatively under s 36(2)(aa) of the Act.
In this court
In his application to commence this proceeding in this court filed 9 June 2016, the applicant relied on one ground. It was as follows (with errors in the original) –
The member erred in applying the correct legal criteria for Protection Visa pursuant to s.36 of the Act and Schedule 2 of the Migration Regulations 1994 (the Regulations).
This application was listed for hearing before me originally on 15 November 2018. Two years earlier, the applicant attended a directions hearing before a registrar of this court and entered into consent orders made on 9 November 2016. Those orders made provisions for the filing of the usual interlocutory documents. On 14 March 2018 notice of the listing of the hearing on 15 November 2018 was provided to the applicant. He denied receiving that notice. He acknowledged receiving a letter dated 31 October 2018 from the minister’s solicitors. That letter was service of the minister’s submissions in support of its contentions in this case. It was not a notice of listing.
The applicant asserted that he was unable to proceed on 15 November 2018 because he was in a fragile mental state, he wanted to obtain legal assistance but had not yet been able to obtain any and he wanted to advance his propositions in this case, he being legally unrepresented. When pressed, the applicant said he did not provide any medical evidence to support his medical state. He said he once had legal representation but that he was no longer represented. He said he had not taken recent steps to obtain legal representation with the imminence of this hearing on 15 November 2018. He said he needed time to prepare as he wished to advance his case in a more structured way.
At the time his reasons struck me as unpersuasive. They were unsupported by medical or other evidence. However, the minister’s solicitor, Ms Nybally, agreed that it was appropriate to give the applicant some time to enable him to appear properly with whatever legal representation he was able to obtain. The applicant asked for several months to obtain his new legal representation. Ms Nybally opposed any lengthy adjournment. I gave the applicant until today within which to obtain legal assistance and return to provide an update of his stated preparation in this case. I told him that it was essential that he was to do all reasonable things and take all reasonable steps to obtain legal assistance that he said he needed. He agreed to do that. Accordingly I listed the case for hearing today.
In the intervening period, the applicant obtained legal advice from a migration agent but the case was not otherwise markedly altered. It seemed to me to be appropriate to press on with the case, which I did.
Ground of review
The one ground on which the applicant relied was not the subject of particulars. A long line of authorities (ever-growing in its number) has held that in the absence of particulars of the ground of review, the court hearing the judicial review application is entitled to dismiss the proceeding on the basis that the applicant has not advanced propositions of fact and law to demonstrate the existence of jurisdictional error. The authorities include SZNXA v Minister for Immigration and Citizenship,[1] WZATH v Minister for Immigration and Border Protection,[2] AQN15 v Minister for Immigration and Border Protection,[3] WZAVW v Minister for Immigration and Border Protection,[4] CNN15v Minister for Immigration and Border Protection,[5] BYM16 v Minister for Immigration and Border Protection,[6] MZARG v Minister for Immigration and Border Protection[7] and DQQ17 v Minister for Immigration and Border Protection.[8]
[1] [2010] FCA 775
[2] [2014] FCA 969
[3] [2016] FCA 571
[4] [2016] FCA 760
[5] [2017] FCA 579
[6] [2017] FCA 326
[7] [2018] FCA 624
[8] [2018] FCA 784
Despite being given an opportunity to correct his application the applicant chose not to do so. It was impossible to tell on what basis the applicant claimed the existence of jurisdictional error by the tribunal. The minister contended that it was open to the tribunal to conclude that he was not owed protection obligations under s 36 of the Act. The minister said the tribunal’s reasons did not indicate the existence of error.
I agree. I detected no error. The applicant failed to make out his ground of review.
Conclusion
Today I asked the applicant to tell me in his own words what he said the tribunal did wrong. He said the MRT did not give him a right. He was referring to the Administrative Appeals Tribunal in its migration and refugee division. I told him I did not understand his answer and I asked him to elaborate on what he meant. He told me he had not travelled to India recently. His answer was otherwise non-responsive. He did not tell me or give me any inkling of the jurisdictional error from which he said the tribunal’s reasons suffered. I detected none.
It fell to the applicant to demonstrate that he was entitled to the visa that he sought. He failed to do that. Such of the material as the tribunal considered did not demonstrate to the tribunal’s satisfaction that the applicant had met the criteria for the grant of a protection visa. It seemed to me that the material before the tribunal properly supported the conclusions at which the tribunal arrived. In other words, based on material that the tribunal considered and which was before it, the applicant failed to demonstrate that Australia owed him protection obligations under the relevant provisions of the Act.
I saw no error in the tribunal’s affirmation of the delegate’s decision to refuse to grant the protection visa the applicant sought. Without having any insight into the basis upon which the applicant asserted the existence of jurisdictional error, in my view the tribunal was correct. It was apparent that the tribunal followed s 425 as well as s 425A of the Act. Further, the applicant’s agent was put on notice about the consequences of the applicant not attending and yet the applicant’s agent failed to engage with the review process. The tribunal was entitled to proceed under s 426A in the manner that it did, it seemed to me.
In my view the tribunal made no error.
The application filed 9 June 2016 for judicial review is dismissed.
I order the applicant to pay the minister’s costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 6 December 2018
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