BMI15 v Minister for Immigration

[2016] FCCA 1389

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMI15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1389

Catchwords:
MIGRATION – Show cause application – complementary protection claim persisted in following rejection of the Convention-based protection claim by the delegate, the Tribunal, the Full Court of the Federal Court and, on the hearing of a special leave application, the High Court – no arguable case for the existence of jurisdictional error found – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44

Migration Act 1958 (Cth), s.36

Cases cited:

Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham [2000] HCA 1

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

First Applicant: BMI15

Second Applicant: BMJ15

Third Applicant: BMK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1693 of 2015

Judgment of: Judge Wilson

Hearing date: 20 May 2016

Date of Last Submission: 20 May 2016

Delivered at: Melbourne

Delivered on: 20 May 2016

REPRESENTATION

First Applicant in person

Counsel for the First Respondent: Mr T. Smyth

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed 23 July 2015 is dismissed.

2. The applicants pay the costs of the first respondent fixed in the sum of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1693 of 2015

BMI15

First Applicant

BMJ15

Second Applicant

BMK15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. Pursuant to consent orders made on 9 December 2015, the hearing of a show cause application in this proceeding came before me on

   
   

   20 May 2016. The applicants were before the Court and represented,

   
   

   at least notionally, by the first applicant, who, through an interpreter, informed me of their position in this proceeding.

2. Before addressing the substantive merits of the point of this show cause application, I wish to record my gratitude to Mr T. Smyth, counsel for the first respondent, who acceded to my request for him to place before the Court the most favourable slant of the case that the applicants could make, had they been legally represented. In an even-handed and entirely fair way, the case for the applicants was presented by counsel for the first respondent in a way that could probably have not been otherwise done.

3. I am satisfied that every point that could have been made, had the applicants been represented, was in fact made, as I say, in an

   
   

   even-handed and balanced way, at times with the construction of events most favourable to the applicants.

Background

1. This application is a show cause application under r.44 of the

   
   Federal Circuit Court Rules 2001

   (Cth). An applicant in an application of this sort must show the existence of an arguable case for the existence of jurisdictional error. A show cause application can be determined in a number of ways, one of which may be to accede to the request of the first respondent for the dismissal of the application in the overall. It may lead to the grant of a more full and exhaustive hearing in an appropriate circumstance, or it might lead to other outcomes. In this case, it appeared to me that the application was brought with good reason because I am not satisfied that there is an arguable case in this case.

2. The history of this litigation is rather long and tortured by reason of the fact that the applicants have already had aspects of their case determined by the delegate, by the then Refugee Review Tribunal

   
   

   (now the Administrative Appeals Tribunal) (“the Tribunal”), by a single Judge of this Court, by a Judge of the Federal Court of Australia and by members of the High Court of Australia on the hearing of a special leave application, all of which were unsuccessful for the applicants. Those orders and hearings were concerned with a convention protection visa application, again, unsuccessfully for the applicants. The complementary protection aspect of the application survived which is presently before this Court.

3. In making those observations, the applicants have had the benefit already of considerable judicial consideration of the facts and surrounding circumstances of this case. However, as the

   
   

   first respondent conceded, the applicants are entitled to separate consideration by me of the residual aspect of this application, being the complementary protection aspect of the case. I am required to examine the approach that the Tribunal took to the determination of the complementary protection aspect of this case with a view to ascertaining whether or not the Tribunal made jurisdictional error.

4. The first respondent invited me to engage in that consideration on

   
   

   two grounds. This first was on the basis of an evaluative error and the second was on the basis of the existence of an error of law, both of which may amount to jurisdictional error had the circumstances shown as much.

5. At the outset, it is necessary to identify the test against which this application was determined below and which I have undertaken for the existence of an arguable case. The Tribunal’s task on the review application from the delegate was to determine whether it was satisfied that substantial grounds existed for a belief that, as the necessary and foreseeable consequence of the applicants’ removal, there was a risk that they would suffer significant harm if returned to India. For the purposes of the Migration Act 1958 (Cth) (“the Act”), that is to say, s.36(2A) of the Act, significant harm encompasses the arbitrary deprivation of life, imposition of the death penalty,

   
   

   the subjection to torture, the subjection to cruel or inhuman treatment or punishment or the subjection to degrading treatment or punishment. The Tribunal determined those matters, as it happened, adversely to the applicant.

6. Authority at the highest level in the case of SZGIZ v Minister for Immigration and Citizenship[1] stands for the proposition that where a protection visa has been decided on convention criteria, as was the case here, an applicant is nevertheless entitled to a consideration of the complementary protection visa aspects of this case, which is front and centre in the determination of this case. It fell to the applicants to demonstrate that they had an arguable case in respect of that issue.

   [1] [2013] FCAFC 71.

The Tribunal’s decision

1. To understand how the case was put, it is necessary to say a little about the background facts of the case. In the Tribunal, the applicants identified what fell for the Tribunal’s determination. It was two-fold and the Tribunal articulated correctly what those matters were.

2. The first claim was that, as a Hindu and a supporter of a Hindu nationalist party, the first applicant had been harassed by a group loosely described as the ‘Muslim Mafia’ which supported the

   
   

   Congress Party to which members of the mafia occasionally asked him to donate.

3. As the second ground, the first applicant claimed that a particular Muslim person identified as ‘Iqbal’ had some control over or influence of that group styled as the Muslim Mafia and wished to form a relationship with the first applicant’s wife, the second applicant,

   
   

   who Iqbal asserted he knew from school. It was contended before the Tribunal that Iqbal had harassed the first applicant’s supervisor at work, had ransacked his house and sought revenge on the

   
   

   first applicant. It therefore fell to the Tribunal to give consideration to those claims.

4. In addressing those matters, the Tribunal put the factual situation under close scrutiny between paragraphs [28] and [33] of its reasons.[2] So far as the claim about Iqbal was concerned, the Tribunal said this -

   [2] Court Book filed 29 April 2016 at pp.307-309.

   Having considered the evidence in its entirety, I accept that

   
   [the first applicant]

   was born in Gujarat and raised in Mumbai.[3]

   [3] Court Book filed 29 April 2016, p.307 at [28].

5. The Tribunal said that it accepted that in the last few years before he and the second applicant came to Australia, he ran a garment business in Mumbai that involved travel to Ahmedabad back in Gujarat.

   
   

   The Tribunal went on to say that, with regard to the claims about Iqbal or his pursuit of the applicants or his involvement with or manipulation of a Muslim Mafia faction, the Tribunal was not satisfied on the vague and inconsistent evidence before it that those claims were truthful. The Tribunal found that it did not accept on the inconsistent evidence before the Tribunal that the applicants fled Mumbai or Ahmedabad or that they were pursued there or harmed or threatened there by Iqbal or the Muslim Mafia. The Tribunal found that it did not accept that the story about the burning of the vehicle put in issue before it was a truthful story.

6. Pausing there, a conclusion to that effect being a factual conclusion was a matter that involved the exercise of a function of the Tribunal to which it was placed par excellence to determine according to the observations of McHugh J in Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham.[4] An attempt to overturn a factual finding of the sort recorded in [28] of the Tribunal’s reasons would necessarily involve me embarking on an unscrambling of the factual material before the Tribunal, thereby engaging in a merits review, a function that I am prohibited from undertaking by learning of considerable veneration. 

   [4] [2000] HCA 1.

7. That is not to say that I am not entitled to look at the findings recorded in [28] of the Tribunal’s reasons with a view to being satisfied that the conclusions there expressed were not open on the material. I have done that and it appears that those findings were open. It follows that I should not engage in a merits review with a view to disentangling the conclusions thereby reached. In all events, the conclusions reached in [28] appear to be factually well-founded, open on the material and legitimately available by way of the Tribunal as to so conclude.

8. Other factual findings made by the Tribunal were recorded in paragraphs [30], [32] and [33] of the Tribunal’s reasons. A fair reading of the material recorded in those paragraphs shows the due consideration given by the Tribunal of the material and conclusions thereby reached. One conclusion which repeatedly resounds in the paragraphs to which I have referred is a finding to the effect that the Tribunal found that the story given by the first applicant was so inconsistent that the Tribunal was not satisfied as to the truthfulness of the applicant having been caught up in any interparty rivalry in India.

9. The Tribunal then addressed the claims about interparty violence and concluded that it was not satisfied on the evidence before the Tribunal that substantial grounds existed for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there was a real risk of the suffering of significant harm. The Tribunal observed that in the evidence in the overall the Tribunal was not satisfied that it had substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India there was a real risk that they would suffer significant harm. Those findings led to the expression of the Tribunal’s satisfaction that the elements set out in s.36(2A) of the Act were not met. The Tribunal therefore reached the end result that the applicants were unable to satisfy the criteria set out in ss.36(2B) or 36(2C) of the Act and that the criteria for the protection visa were not met on the facts of the case.

10. In examining those reasons, the approach properly open with a view to distilling jurisdictional error was to approach the case, as was done in this case, by assessing whether, on an evaluative basis, error was made as well as by assessing whether an error of law had been made.

    
    

    On both grounds, the first respondent contended that there was no such error. Quite openly and candidly, Mr Smyth suggested that the approach adopted by the Tribunal was procedurally unimpeachable.

    
    

    I agree. The reasons of the Tribunal reflect a degree of care in considering and assessing the claims that were made and the dispatch of those claims.

Grounds of review

1. In this proceeding, the applicants agitate two grounds of review -

   1.  I applied for PROTECTION VISA second time to department of immigration which was refused (sic).

   2.  Then I apply to RRT for review of that decision. Which is affirms by tribunal on 29/06/2015 (sic).[5]

   [5] Application filed 23 July 2015 at p.2.

Consideration

1. Recognising as I do that the first applicant’s command of the English language is less than perfect, he having spoken to me during the hearing through an interpreter, I appreciate that his command of the English language and the subtle nuances of the migration law may have led to the grounds of review being rather inelegantly expressed. However, even on a charitable construction of those grounds, it is well-nigh impossible to distil the existence of jurisdictional error raised by them. I am unable to ascertain what those grounds of review amount to.

2. It therefore becomes relevant to examine whether any purpose is served by permitting this case to go further to a more full and exhaustive hearing given that any such further time would be spent examining grounds that have no factual or legal provenance, still less jurisdictional basis. There is merit in the Tribunal’s conclusions that the first applicant’s evidence was vague and contradictory as recorded in paragraphs [28] and [32] of the Tribunal’s reasons. The position did not get better before me.

3. So far as the two bases upon which jurisdictional error might have been asserted, namely, on an evaluative basis or on an error of law basis,

   
   

   the Tribunal’s conclusion seems to me to be unassailable. I am not persuaded that an arguable case is raised on the material before me and it follows that I am satisfied that there is no purpose served in permitting this case to go beyond today. An arguable case has not been raised. This gives voice to the procedural benefit of the show cause procedure.

4. I have searched with a view most benevolent to the applicants to try to divine what might be said about the facts of this case that could give rise to jurisdictional error and have been unable to distil any. Lamentable though that may be for the applicants in this case because it brings to a halt their application for a grant of a complementary protection visa, the case is without merit and the case is one to which the show cause procedure is justly applied. In my judgment,

   
   

   the first respondent’s submissions are well-founded and it seems to me that an order should be made in terms sought by the first respondent for the dismissal of this application and that costs against the applicants be ordered in the sum of $3,416.00.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 8 June 2016