BPI17 v Minister for Immigration
[2018] FCCA 356
•12 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPI17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 356 |
| Catchwords: MIGRATION – Protection visa – no arguable case raised by applicant for relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 Spencer v Commonwealthof Australia (2010) 241 CLR 118 |
| Applicant: | BPI17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 744 of 2017 |
| Judgment of: | Judge McNab |
| Hearing date: | 12 February 2018 |
| Date of Last Submission: | 12 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 February 2018 |
REPRESENTATION
| The Applicant in person |
| Solicitors for the Respondents: | Ms Stone, DLA Piper |
ORDERS
Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001, the application filed 12 April 2017 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3667.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 744 of 2017
| BPI17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore)
The applicant filed an application in the Federal Circuit Court on 12 April 2017 seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 3 April 2017. In that decision the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (class XA) visa.
On 25 October 2017 Registrar Luxton made orders for the filing and service of a court book by the respondent and giving the applicant an opportunity to file an amended application and written submissions.
The matter was listed for a show cause hearing pursuant to r.44.12 Federal Circuit Court Rules 2001 (Cth) on this day. Rule 44.12(1) provides:
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed -- adjourn the proceeding and order a respondent to show cause at a final hearing why an order for relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief mentioned in the application.
The Applicant’s submissions
The applicant appeared on his own behalf before the court. He filed submissions on 15 January 2018, which are dated 12 January 2018. Those submissions are comprehensive and raise for the court’s consideration matters that were raised before the Tribunal, and in particular, the applicant urges the court that the court’s power to summarily dismiss a proceedings should not be exercised lightly and referred to the High Court decision of Spencer v Commonwealthof Australia (2010) 241 CLR 118 and the Federal Court decision of AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30. I have had regard to these authorities when determining this matter.
The applicant asserted that his case was arguable. He raised that the Tribunal was required to consider if he had a well-founded fear of persecution or a real risk of significant harm in the reasonably foreseeable future if he returned to Sri Lanka and that it was required to consider if there was a real chance or a real possibility of him suffering persecution or harm upon his return. He submitted that the Tribunal had formed a mindset that his claim was contrived and then failed to properly address the issue of his fear of UNP political opponents, and that it had not taken into account the profile of his father in law.
The applicant submits that his father-in-law was an influential politician who was a former member of Parliament and that the then Prime Minister and future President of Sri Lanka was present at his wedding in 2001 and the current Prime Minister, UNP leader and speaker were all witnesses to his marriage. He states the very fact that he had politicians from major political parties at the wedding show that he had friends in both camps and could call on favours when required.
Paragraph [6] of his submissions states:
… [t]he Tribunal has failed to take these relevant factors into account and the factors detailed below when coming to its decision.
The submissions then raise that he was actively involved in supporting local UNP candidates in the 2010 general elections and presidential elections. In paragraph [8] he states:
It is well known that during elections, political violence is rife as there are acts of revenge committed by all political parties against each other…
The applicant goes on to note that in 2011 he remarried, his business picked up and he purchased land to build a house. He says that his father-in-law resumed threats and harassment and used his political influence to hurt him for being a strong supporter of the UNP and not paying a property settlement to his daughter.
He claims that he received threats from his father-in-law and had political thugs come to his workplace and threaten him. He challenged the credibility findings made by the Tribunal, and in particular, the findings that his story was contrived. He referred to the decision of CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 as authority for the proposition that adverse credibility findings do not shield the Tribunal from its decision-making process being scrutinised.
In his submissions, he raised that the credit findings should be reopened. He notes:
…I claim the Tribunal failed to properly assess my claim for a protection visa because of its mindset that mine was a contrived claim and it did not consider any of the cases cited above (being Minister for Immigration and Citizenship v SZRKT, SZLGP v Minister for Immigration and Citizenship and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship) and it should have assessed my credit, that my claim was contrived according to applicable law.
He also submitted that the Tribunal had failed to properly consider the complementary protection claim and whether there was a real risk that he would suffer significant harm given his religious and political beliefs. He raised the issue of being a failed asylum-seeker and that he may, in some instances, be detained in poor prison conditions. In paragraph [17] he notes: “[i]n other words, the tribunal should have evaluated the nature and gravity of that loss of liberty.”
In his oral submissions before the court the applicant raised that the Tribunal:
a)did not consider the claims in relation to his father-in-law’s political influence;
b)had not considered the claim to fear significant harm on his return to Sri Lanka;
c)there was a failure to explain what the country information was that was relevant to his return to Sri Lanka;
d)there was a failure on the part of the Tribunal to consider state protection on his return to Sri Lanka; and
e)there was a failure on the part of the Tribunal to accept that he had supported the UNP.
The applicant sought an adjournment of the matter in order so that he could brief counsel at a full hearing of the matter. He claimed that there were issues because the court was closed in December, which is clearly not the case and that barristers were not available to be briefed until about the end of January. Even if that was the case, which I do not accept, the applicant has still had the opportunity to obtain legal representation to appear on this day.
I further note that the written submissions that have been filed are quite clearly prepared by a person with significant background in this area and the applicant has had the opportunity to obtain advice in relation to his application which is detailed and directly relevant to his case.
In my view, the applicant has not established that he has an arguable case to establish that there is an error on the part of the Tribunal in the way that it considered his application.
The application filed on 12 April 2017 raises three grounds:
(1)The Decision of the AAT is affected by jurisdictional error:
(a)The tribunal was required to consider if the applicant had a well-founded fear of persecution or a real risk of significant harm in the reasonably foreseeable future if he returned to Sri Lanka. It was required to consider if there was a real chance or a real possibility of the applicant suffering persecution or harm upon his return and the AAT has formed a mindset that his claim was contrived and then failed to properly address the issue of his fear of UNP political opponents and not taken into account the profile of his father in law.
(b)Likewise the tribunal has given scant consideration to his fears of persecution because he was a Buddhist who converted to Christianity and had not considered the opportunities he would have to practise his religion openly and without fear of repercussions from nationalistic Buddhist organisations.
(c)The Tribunal has not considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm, given his religious & political beliefs.
In relation to ground one, the applicant before the Tribunal claimed to be a supporter of the UNP and to fear harm on that basis. The Tribunal considered his claims, but made a finding that he would not be harmed because of his and his family’s support for the UNP.[1]
[1] Court book [47] – [52].
The applicant raised that the Tribunal had failed to take into account documents and photographs that were raised in relation to his father-in-law’s political influence and connections. The Tribunal specifically referred to the photographs that were submitted in support of the applicant’s claim at paragraph [72]. Otherwise, the Tribunal took into account the applicant’s claims about his father-in-law’s political connections and came to the conclusion that there was an inconsistency in the evidence that the applicant gave about his father-in-law at paragraph [47] and [48]. The Tribunal rejected the applicant’s claims that he would be threatened by his father-in-law or associates of the father-in-law because of political connections.[2]
[2] Tribunal decision [98].
In relation to the applicant’s claims in relation to being detained as a failed asylum seeker due to the influence of his father-in-law and the allegation that the Tribunal failed to consider those claims, it is noteworthy that those claims were not advanced before the Tribunal. This is a case where the applicant did not depart Sri Lanka illegally nor is he is a Tamil. There is no other reason or suggestion raised why he would necessarily be assumed to have sought asylum in Australia when he returns to Sri Lanka.
The applicant has had a very extensive history of travel to and from Australia for holiday purposes since 1998 and otherwise he has enjoyed significant international travel from 2003 to 2013, where he has travelled for both business and pleasure.[3] There are 19 such trips identified in the applicant’s travel history as set out in the court book and the applicant has also given evidence of travel to Australia since 1998 for holiday purposes. He set that out in his written claims before the delegate.
[3] Court book, 261.
In relation to ground two, where it is raised that there was a failure to consider the applicant’s claims to fear harm as a result of converting from Buddhism to Christianity, the applicant claimed in his statement to the Tribunal that he had been ostracised by his family as a result of his conversion. The Tribunal found at [62] that this did not amount to serious or significant harm.[4] The Tribunal referred to evidence that the applicant had stated that Buddhist monks could cause some problems, but when asked by the Tribunal whether he had ever been affected by any sentiments from nationalist Buddhist groups in society, he stated that he had not. At paragraph [61] the Tribunal noted that the applicant had identified his religion and his marriage location at the time of his application and made no reference to any conversion or any issues that arose from any conversion, including problems with his family, in that application.
[4] Tribunal decision [62].
The Tribunal noted that the applicant had failed to mention any conversion, despite his previous religious practices, and that this was a matter of concern to the Tribunal. The Tribunal considered that he did not fear harm from such groups. That finding reflected country information which the Tribunal referred to in paragraph [57] of its decision. The Tribunal concluded that the applicant did not have a real chance of serious harm or a real risk of significant harm arising from being a convert or a practicing Christian in Sri Lanka. I can see no error in the approach that has been taken by the Tribunal. It specifically referenced the submissions and evidence put before it and formed the conclusion taking into account the matters raised by the applicant.
In relation to ground three, which asserts that the Tribunal failed to consider the complementary protection criteria in s.36(2)(aa) of the Act, the Tribunal dealt with this matter at paragraphs [101] to [103] of its decision. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa). The Tribunal’s conclusion was based on its finding that the applicant did not meet the refugee criterion in s.36(2)(a). As a result of the findings of fact, the Tribunal did not accept that as a necessary or foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm on his return.
In relation to the claim that there was a failure to consider state protection, in my view, there was no need for the Tribunal to consider that because of the factual findings that were made.
Otherwise in relation to business issues and the alleged failure on the part of the Tribunal to consider the role of the father-in-law and his capacity to cause significant harm, the Tribunal rejected those claims in a comprehensive and clearly intelligible way from paragraphs [94] – [96]. It concluded in relation to the ex-father-in-law, that the applicant does not have a well-founded fear of persecution in relation to anything arising from the father-in-law, his political connections or business connections. For those reasons, the Court finds that there is no arguable case that has been raised by the applicant for the relief claimed.
The court dismisses his application filed on 12 April 2017 and orders that the applicant pay the first respondent’s costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 16 February 2018
2
2