BLP16 v Minister for Immigration

[2016] FCCA 3361

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLP16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3361

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – no proper grounds of review – impermissible attempt at merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: BLP16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 532 of 2016

Judgment of: Judge Jarrett

Hearing date: 2 December 2016

Date of Last Submission: 2 December 2016

Delivered at: Brisbane

Delivered on: 2 December 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance.

THE COURT ORDERS THAT:

1. The application filed on 14 June 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum $5800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 532 of 2016

BLP16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal that was made on 30 May, 2016.  By that decision, the Tribunal affirmed a decision of a delegate of the first respondent that was made on 19 November, 2015 to refuse to grant the applicant a Protection (Class XA) visa. 

2. The material reveals that the applicant is a citizen of Malaysia.  She arrived in Australia on 3 April, 2013 on a tourist visa.  Her visa expired on 3 July, 2013 but she remained in Australia thereafter.

3. She lodged an application for a protection visa, the application the subject of these proceedings, on 10 June, 2015.  The basis of her application was that she left Malaysia because her ex-boyfriend, a person called Vincent, wanted to kill her.  She claimed that he had chased her from Malaysia and followed her to Singapore.  She says that he found her in Singapore and threatened again to kill her and himself.  The Tribunal summarises the claims in its reasons for decision. 

4. There is nothing to which I have been taken, or which I could find myself, which leads me to the conclusion that the Tribunal did not understand the applicant’s claims.  Between paragraphs 3 and 11 of its reasons, the Tribunal accurately, it seems, summarised the evidence given by the applicant at the Tribunal’s hearing.  The Tribunal affirmed the decision under review, essentially because it did not find the applicant’s claims credible.  The Tribunal dealt with the concerns that it had about the applicant’s evidence from paragraph 12 onwards in its reason for decision.

5. The Tribunal did not accept that the applicant had a boyfriend called Vincent.  It did not accept that Vincent had threatened to kill her or that he had mental health problems as she alleged.  It did not accept any of her claims, essentially. 

6. The Tribunal gave reasons for rejecting the applicant’s claims.  Those reasons are not illogical.  The Tribunal has exposed its reasoning. 

7. The Tribunal also pointed out that the applicant had delayed her application for the protection visa for some two years.  The Tribunal thought it inconsistent that if she left Malaysia to escape the threats of her boyfriend, as she had claimed, she would not delay for two years after she arrived in Australia to apply for protection. 

8. The Tribunal considered whether the applicant would be at risk of significant harm if she was to return to Malaysia and determined that she would not be and therefore, she did not engage s.36(2)(aa) of the Migration Act 1958 (Cth). The Tribunal affirmed the decision under review.

9. By this application for review, the applicant raises three grounds, as specified in the application filed by the applicant on 14 June, 2016.  The first ground is in these terms:

   The Tribunal failed to afford procedural fairness.

10. There is no particularisation of that ground.  It is not clear how the applicant asserts that the Tribunal did not afford her procedural fairness.  There were directions made, when this matter came before the Court on its first Court date, for the applicant to file written submissions in support of her case and to file an amended application if she thought she needed to do so.  Neither of those things happened, and so there was no particularisation of her claims in any way.  Today at the hearing before me, the applicant has not expanded on her claim that the Tribunal did not afford her procedural fairness.

11. I accept the first respondent’s submissions that there is no evidence that would suggest that the Tribunal did not afford the applicant procedural fairness, as it was required to do pursuant to Part 7 of the Migration Act. The Tribunal was not able to make a decision on the review favourable to the applicant without a hearing, and so invited the applicant to a hearing to give evidence and make submissions. She took up that opportunity. There is nothing to suggest that the Tribunal did not conduct that hearing appropriately, or that the applicant was in some way disadvantaged at that hearing.

12. Today she suggests that the Tribunal was biased, but there is nothing in the Tribunal’s reasons that would establish either actual or apprehended bias.  In any event, the test for establishing either of those is very stringent, and as I say, there is no suggestion in the reasons, to which I have had regard, that would suggest that the Tribunal did or said anything that would give rise to an apprehension of bias. 

13. The second ground raised by the applicant in her application is:

    The Tribunal made a finding without enough evidence or provision of country information.

14. The first respondent points out in his written submissions the law that relates to a “no evidence” ground, but here the real difficulty with the applicant’s claim under this head is that the Tribunal, in fact, made no findings, let alone findings that were not supported by evidence.  Rather, the Tribunal expressed that it was not satisfied about the claims that the applicant made.  There is a difference between making a finding and having evidence upon which that finding might be based and expressing an inability to be satisfied about the claims that were being made.

15. On a proper reading of the Tribunal’s reasons for decision, it seems to me that having regard to the rejection of the applicant’s credit and the claims that she made, the Tribunal thereafter could not be satisfied that she was a person that attracted Australia’s refugee obligations.  The Tribunal explained its reasoning in a transparent way, in my view, in its reasons for decision.  This ground reveals no jurisdictional error. 

16. The last ground relied upon by the applicant is in these terms:

    The Tribunal failed to consider the matter objectively, but rather rely upon the member’s personally subjective opinion.

17. It is difficult to understand what this ground of review in fact means, but doing the best that I can, it seems to me that it is either an allegation of bias – I have already dealt with that – or it is an allegation that the Tribunal did not properly consider the merits of the applicant’s application.  The reasons for decision demonstrate that the Tribunal conducted a review, as it was required to do, and made the relevant determinations about the matters before it as it was required to do. 

18. There is no evidence that would suggest that there was either actual or apprehended bias in the way in which the Tribunal approached the matter.  In my view, this ground simply seeks merits review of the Tribunal’s decision.  That is unavailable in this Court. 

19. For all of those reasons, the application for review does not raise any jurisdictional error.  The tribunal’s reasons for decision, independently of the applicant’s submissions, do not reveal any jurisdictional error. The application for review must be dismissed.  The first respondent seeks his costs of the application fixed in the sum of $5,800.

20. Ordinarily, in these applications, costs follow the event.  That is, the unsuccessful party pays the successful party’s costs.  In this case, the applicant was unsuccessful and the first respondent was successful.  The ordinary rule applies, unless there are special circumstances that suggest that the usual rule ought not apply.  That somebody does not have any money to pay the costs is generally not seen as a special circumstance. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 2 December, 2016.

Date: 23 December 2016