BOG15 v Minister for Immigration
[2018] FCCA 643
•2 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOG15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 643 |
| Catchwords: MIGRATION – Protection (class XA) visa – where applicant failed to provide particulars of grounds of review – where applicant alleged mistreatment if returned – where applicant claimed a denial of procedural fairness – where applicant sought merits review – application dismissed. |
| Legislation: Migration Act 1958, ss.36, 36(2A) Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | BOG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1761 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 2 March 2018 |
| Date of Last Submission: | 2 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 2 March 2018 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: | Mr B. Petrie |
| Solicitors for the Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | None |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 30 July 2015 is dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1761 of 2015
| BOG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINSTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
By application filed in this court on 30 July 2015 the applicant sought judicial review of the decision of the Administrative Appeals Tribunal made on 6 July 2015. The Tribunal decided to affirm a decision made by the Minister’s delegate to not grant the applicant a protection (class XA) visa, application for which was made on 21 November 2012. In this court the applicant contended that the Tribunal’s decision was affected by error of law. The applicant gave no particulars of that assertion.
The applicant also contended that the Tribunal denied him procedural fairness. He gave no particulars of that assertion either. As an additional ground of his application to this court the applicant said he had applied for legal aid but he was awaiting a decision. Against that factual backdrop I am required to decide on his application.
Synopsis
For the reasons that follow, this application for judicial review failed. I dismiss this proceeding and order the applicant to pay the Minister’s costs.
A short factual recital
The applicant, a Sri Lankan male citizen of Tamil ethnicity, arrived on Cocos Island on 2 July 2012 on an unauthorised boat arrival at which time he was detained as an unlawful maritime arrival. He was transferred to Christmas Island on 4 July 2013. He was granted a bridging visa on 21 December 2013. Earlier, on 12 November 2012 or thereabouts, the applicant’s representative, Fragomen (Australia) Pty Limited (“Fragomen”) lodged the applicant’s application for a protection (class XA) visa. With his visa application, the applicant supplied a statutory declaration made on 2 November 2012.
In response to correspondence from the minister’s delegate, on 18 June 2013 Fragomen supplied further information to the delegate. In his reasons, the delegate stated that he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36 of the Migration Act 1958 (“the Act”). The delegate refused to grant the applicant the protection visa he sought. On 24 October 2013, on behalf of the applicant Fragomen applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal, for a merits review of the applicant’s application for a protection visa.
Fragomen supplied a written submission dated 30 January 2014. The Tribunal invited the applicant to attend the hearing and to give the evidence and present argument fixed for 19 January 2015. Fragomen accepted the hearing invitation on the applicant’s behalf. The hearing was duly convened. The Tribunal invited the applicant to provide further material. Fragomen responded by letter dated 20 January 2015. Fragomen supplied a further written submission on 5 March 2015 to which were appended several annexures.
On 6 July 2015 the Tribunal affirmed the delegate’s decision to not grant the applicant a protection visa. Before going to the Tribunal’s decision, let me point out that on 20 January 2016 a registrar of this court made consent orders listing this case for final hearing, bypassing the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules 2001. By consent, the registrar ordered the applicant to file an amended application 42 days prior to the date for final hearing. No amended application was filed nor did the applicant file written submissions as he was ordered to do.
In view of the fact that the applicant failed to provide particulars of his grounds of application in this court, nor an amended application, nor written submissions in respect of any of his bases for relief, it was extremely difficult to assess the merits or otherwise of his case. Several cases that bind me have held that an applicant’s failure to provide particulars of his grounds is a sufficient basis for dismissing the application for judicial review.
From the decision in WZATH v Minister for Immigration and Border Protection[1] Siopis J is taken to have concluded that in respect of a ground of review expressed in such generality that it could not be taken to be a meaningful ground of review, the proceeding was amenable to being dismissed on that basis alone.
[1] [2014] FCA 969.
Logan J stated in BHK15 v Minister for Immigration and Border Protection[2] that the applicant’s first ground of review in that case was expressed at such a level of generality as not to be meaningful in the absence of particularisation. Logan J took a similar view in a slightly later decision in AQN15 v Minister for Immigration and Border Protection[3] where his Honour held that no error was committed by the primary judge in that case, dismissing the proceeding by reason of the generality of and the absence in particularisation of the grounds of review.
[2] [2016] FCA 569.
[3] [2016] FCA 571.
In WZAVW v Minister for Immigration and Border Protection[4] Gilmour J held that an unparticularised assertion of jurisdictional error is vague when it does not specify the nature of the jurisdictional error allegedly committed and a failure to particularise a ground of review is a sufficient basis for the proceeding to be dismissed. In this case, the first two grounds of review were unparticularised.
[4] [2016] FCA 760.
Consistent with the decisions in WZATH, BHK15, AQN15 and WZAVW, those unparticularised assertions of the existence of jurisdictional error in this case give no insight at all into the nature of the error the Tribunal is alleged to have made. This proceeding is amenable to dismissal on that basis alone.
I dismiss this proceeding on that basis as well as on other bases to which I now turn. There are other bases why this proceeding should be dismissed more substantive in nature than the vagueness of the grounds of review. Let me move to them at once.
The Tribunal addressed the applicant’s assertion about his father’s presidency of a village. The Tribunal did not accept the applicant’s contention that his father was the village president because it said no objective evidence existed of that assertion and the Tribunal was unable to reach such a conclusion based on its own investigations. Nor did the Tribunal accept that the father was attacked, as alleged.
The Tribunal did not accept that the applicant was harassed on account of his father’s actions or that the applicant faced a real chance of persecution at the hands of the Sinhalese minister or bodyguards if the applicant returned to Sri Lanka. The Tribunal did not accept that the attack on the applicant’s father actually took place as there was no evidence of hospitalisation. The Tribunal addressed the matter in paragraphs 87 and 91 of its reasons. So far as the applicant’s race was concerned, the Tribunal accepted that the applicant would face some discrimination and harassment as a Tamil male but the Tribunal said that country information indicated improved circumstances, as revealed in paragraphs 93 and 94 of the Tribunal’s reasons.
So far as his status as a failed asylum seeker was concerned, the Tribunal accepted that the applicant would be returning to Sri Lanka as a failed asylum seeker but that (based on information from the Department of Foreign Affairs and Trade) failed asylum seekers are not treated differently from other returnees and that allegations of mistreatment are unsubstantiated. The Tribunal said the applicant may be charged under the Immigrants and Emigrants Act 1949 (Sri Lanka), but there was no real chance that the applicant would be mistreated or persecuted because of his membership of a particular social group or because he returned to Sri Lanka as a failed asylum seeker.
So far as short term detention was concerned, the Tribunal found that based on country information any short term detention and unsanitary conditions therein would not constitute significant harm under s.36(2A) of the Act.
In this court
Against that backdrop, the Minister contended –
a)the Tribunal’s decision was not affected by jurisdictional error, citing the High Court decision in Craig v State of South Australia;[5]
b)the Tribunal considered all of the applicant’s claims in detail; and
c)citing Minister for Immigration and Ethnic Affairs v Guo Wei Rong[6] in the High Court of Australia, the Tribunal was not bound to accept uncritically any or all of the claims advanced by the applicant.
[5] (1995) 184 CLR 163.
[6] (1997) 191 CLR 559.
I agree with each of those propositions.
So far as the Tribunal’s consideration of country information was concerned, the Minister submitted that it was a matter for the Tribunal as to the weight to be attached to country information, citing the decision of the Full Court of the Federal Court of Australia in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs.[7] To that, let me add that the choice and interpretation of country information is a factual matter for the Tribunal alone, as was held in NBKT v Minister for Immigration and Multicultural Affairs.[8] I agree with the Minister’s contentions in relation to country information.
[7] [2004] FCAFC 10.
[8] (2006) 156 FCR 419.
The Minister argued that the Tribunal was not required to consider unarticulated claims that did not clearly arise from the material, citing the decision of the Full Court of the Federal Court of Australia in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2).[9] The authorities on this point seem to me to be better distilled a little differently, as I did in my judgment in ACX15 v Minister for Immigration and Border Protection,[10] namely, that –
[9] (2004) 144 FCR 1.
[10] (2017) 322 FLR 247 at [21].
... the Tribunal was required to deal with –
a)a “substantial, clearly articulated argument relying on established facts”;[i]
b)a claim or claims and its or their integers;[ii]
c)evidence and material that the Tribunal accepts to raise a case not articulated;[iii]
d)an unarticulated claim that is raised squarely on the material available to the Tribunal;[iv] and
e)not an application or claim never made.[v]
[i] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24].
[ii] See Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136.
[iii] See Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.
[iv] See SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1.
[v] See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1.
It seemed to me that the Tribunal did in fact quite properly deal with all claims that were before it in this case. As to the suggestion that the applicant was not shown procedural fairness, in my view the contention was baseless. Several things must be said of the point. First, the applicant was represented throughout by Fragomen, which provided high quality representation especially with written submissions. Next, the applicant was invited to attend the hearing and he did in fact attend that hearing with the assistance of a representative. No complaint was made during the hearing of any want of procedural fairness. The applicant’s contention that the applicant was denied procedural fairness was without merit.
Finally, the applicant asserted that he applied for legal aid and that as at the date on which he filed his application in this court he had received no response to his application for legal aid. To my mind this is not a valid ground of review in that no jurisdictional error was identified. It amounted to the applicant alerting the court to the fact that he had applied for legal aid. I accept that he had in fact so applied. No evidence was adduced about events thereafter. But in any event, the fact of his applying for legal aid and having received no response thus far did not point to the existence of any of the classic formulations of jurisdictional error as propounded in such High Court authorities as Craig v State of South Australia[11] and Kirk v Industrial Relations Commission (NSW).[12]
[11] (1995) 184 CLR 163.
[12] (2010) 239 CLR 531.
Today the applicant appeared before me without legal assistance, although he did have an interpreter. When I asked him to tell me in his own words what he said the Tribunal did wrong he said, “I only know what problems I face and I was unable to tell them.” His reference to “them” was a reference to the Tribunal. That did not amount to jurisdictional error. He then rehearsed the factual incidents over which the Tribunal adjudicated. To the extent that he wanted me to conduct a merits review in respect of that material I am forbidden from doing so as the High Court has so held in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[13]
[13] (1996) 185 CLR 259.
Conclusion
This proceeding is dismissed and I order the applicant to pay the first respondent’s costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson
Associate:
Date: 15 March 2018
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