BLB15 v Minister for Immigration

[2015] FCCA 3106

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLB15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3106

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – show cause hearing – whether adverse findings were open on the material before the Tribunal – no jurisdictional error – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), s.476

Applicant: BLB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1992 of 2015

Judgment of: Judge Street

Hearing date: 20 November 2015

Date of Last Submission: 20 November 2015

Delivered at: Sydney

Delivered on: 20 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Maddocks
DLA Piper

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 sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1992 of 2015

BLB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 24 June 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Iran, and his claims were assessed against that country.

2. The applicant was sent a letter dated 28 January 2015 inviting the applicant to appear before the Tribunal on 23 March 2015.  The applicant appeared before the Tribunal on that date to give evidence and present arguments, and was assisted by an interpreter and represented by his registered migration agent.

3. Prior to the hearing, the migration agent provided submissions to the Tribunal which were identified by the Tribunal at para.16.  Following the hearing, the applicant was given an opportunity to provide further submissions, and on 31 March 2015, further submissions were received from the applicant’s registered migration agent, which were also identified in the Tribunal’s reasons. 

4. In summary, the applicant claimed to fear persecution if returned to Iran by reason of his political opinion in perceived opposition to the Supreme Leader, his lack of religious belief, being an atheist, and his membership of a social group of returned asylum-seekers in Iran. The applicant also claimed to fear harm in relation to the complementary grounds: physical attacks, torture and arbitrary detention amounting to serious and significant harm by the Islamic Republic of Iran, whose associated security force is the Basij and the Sepah, who act on the instructions of and in support of the Supreme Leader in the Islamic Republic of Iran. 

5. On 20 August 2015 a Registrar of the Court fixed the matter for hearing and provided an opportunity for the applicant to file an amended application, affidavit evidence and submissions.  The applicant filed an affidavit annexing the transcript but no other documents.  The grounds in the application are as follows:

   1.  I am waiting for advice from my lawyer.

   2. I attach the decision

6. It is patent on the face of the grounds that they fail to identify any arguable jurisdictional error.  The applicant explained that he tried to obtain a lawyer and that he hoped, in light of the fact that he was not represented, close attention would be given to his case.  The Court explained to the applicant the nature of the Court’s jurisdiction, and the applicant raised the findings by the Tribunal of inconsistencies in his evidence. 

7. This is a case where the Tribunal found the applicant was not a witness of truth and had fabricated his material claims for the purpose of obtaining a protection visa.  The Tribunal did, however, accept that the applicant was an atheist and referred to country information in relation to atheists and relevantly found:

   31. On the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reason of religion if he returns to Iran now or in the reasonably foreseeable future.

8. The Tribunal made a finding in relation to the applicant’s evidence being inconsistent, implausible and unconvincing in para.48.  It was a matter for the Tribunal to make findings in relation to the applicant’s credit.  The adverse findings made by the Tribunal in relation to the applicant cannot be said to lack an evident and intelligible justification. 

9. There is more than one finding made in relation to the inconsistency in the applicant’s evidence and the implausibility of his explanations as giving rise to concerns in relation to the applicant’s credibility and veracity.  The applicant maintained that he was an atheist and that, as an atheist, his life was in danger if returned to Iran.  The applicant said the Tribunal did not believe anything the applicant said. 

10. It is clear that the Tribunal did accept the applicant was an atheist.  Adverse findings by the Tribunal in relation to the applicant’s fear of persecution by reason of being an atheist and the question of whether there was a real risk he would suffer significant harm by reason of being an atheist were the subject of adverse findings by the Tribunal that were open. 

11. The applicant also feared that if returned to Iran, he may be treated as a spy.  It is clear that the Tribunal identified that fear, but made an adverse finding in regard to that claim.  The applicant also raised his fear as a result of the confiscation of his laptop and the material on it, which was identified by the Tribunal and the subject of an adverse finding, which again cannot be said to lack an evident and intelligible justification. 

12. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. The application fails to disclose any arguable case. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12. 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:  24 November 2015