BPL15 v Minister for Immigration and Anor (No.2)

[2016] FCCA 2048

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPL15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 2048

Catchwords:
MIGRATION – Application to reinstate proceedings – real chance test – whether the Tribunal failed to have regard to relevant evidence – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error identified – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 91R, 476

Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a)
Immigrations and Emigrants Act (Sri Lanka)

Cases cited:
MZYEZ v Minister for Immigration and Citizenship & Anor [2010] FCA 530

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: BPL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2153 of 2015

Judgment of: Judge Street

Hearing date: 10 August 2016

Date of Last Submission: 10 August 2016

Delivered at: Sydney

Delivered on: 10 August 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Ms A Lucchese
Sparke Helmore

ORDERS

1. The application in a case is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $2,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2153 of 2015

BPL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application in a case under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 to set aside orders made on 8 April 2016 dismissing the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 for want of appearance by the applicant on that day.  The applicant has had read an affidavit explaining why he failed to attend on the relevant day.  That explanation was that the applicant had moved house and did not realise that he had to advise the Court of his change of address because he thought the Court date had already been set. 

2. At the commencement of the hearing, the Court explained to the applicant that this was a hearing to determine whether the orders made by the Court on 8 April 2016 should be set aside.  The Court explained that the relevant issues in this case were the adequacy of the applicant’s explanation for the failure to appear and whether there was a sufficiently arguable case to warrant an order setting aside the orders made on 8 April 2016.  The Court explained that a sufficiently arguable case required a reasonable argument that the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. 

3. The Court explained that in summary this meant the Court was considering whether there was a reasonably arguable case that the Tribunal’s decision was unlawful or a reasonably arguable case that the Tribunal’s decision was unfair.  The applicant confirmed that he understood what had been said by the Court.  The Court explained to the applicant that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the first respondent and then hear submissions from the applicant in reply.  The applicant confirmed he understood the nature of the hearing as explained by the Court. 

4. In relation to the applicant’s explanation for the failure to appear, this was a case where the callover was moved forward, and whilst the applicant should have appreciated the importance of communicating his change of address to the first respondent, the Court accepts the explanation advanced by the applicant.  However, in the present case, the critical issue is whether there is any utility in making an order setting aside the default order made on 8 April 2016. 

5. This is not a case where there is any suggestion of prejudice, and the material two issues as identified by Ryan J in MZYEZ v Minister for Immigration and Citizenship & Anor [2010] FCA 530 at [7] are the adequacy of the excuse for the failure to appear and whether there is a sufficiently arguable case to warrant a setting aside of the order made on 8 April 2016. For the reasons I have given, the Court accepts that there is a reasonable excuse in the circumstances of the present case as to why the applicant failed to appear. It is the second issue, however, to which the Court now turns. The grounds in the application are as follows:

   1. RRT decision is unsupported by any evidence.

   2. RRT did not fully deal with my problems.

6. The applicant was found to be a citizen of Sri Lanka.  On 8 July 2015, the Tribunal affirmed a decision of the delegate not to grant the applicant a Protection (Class XA) visa. 

7. The applicant claimed to fear harm by reason of his ethnicity, being a Tamil, and by reason of an imputed political opinion as an LTTE supporter, membership of a particular social group, namely, failed asylum seekers, and being a Tamil fisherman from the particular area significant in relation to LTTE presence and/or LTTE recruitment, as well as being a Tamil fisherman and a family member of suspected LTTE supporters.  The applicant also claimed fear by reason of having departed Sri Lanka illegally and being a failed asylum seeker from a western country.

8. On 19 July 2013, the delegate refused to grant the applicant a protection visa.  The delegate was not satisfied that there was a real chance of the applicant being persecuted for a Refugees Convention reason, and found that the applicant’s fear of persecution was not well founded.  The delegate was not satisfied that Australia had protection obligations to the applicant because there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm.

9. The applicant applied for review on 23 July 2013.  The applicant was invited by letter dated 20 January 2015 to a hearing to take place on 16 March 2016.  The applicant appeared on that date to give evidence and present arguments, and was represented by a migration agent.  The applicant was invited to attend a further hearing by letter dated 24 March to take place on 1 May 2015.  The applicant appeared on that date to give evidence and present arguments, and was again represented by his migration agent. 

10. The Tribunal in its reasons identified the applicant’s claims and evidence, as well as setting out the relevant law to be applied.  The Tribunal found the applicant was not a witness of truth and was not satisfied that he had told the truth in relation to critical aspects of his claims.  The Tribunal found that the applicant had fabricated his more recent claims in order to strengthen his application.  Those adverse credibility findings were supported by detailed reasons.  The adverse credibility findings cannot be said to lack an evident and intelligent justification.  The Tribunal accepted that there was a real chance the applicant would come to the attention of the authorities at the airport on return to Sri Lanka and may be arrested for breaching the Immigrants and Emigrants Act (Sri Lanka). 

11. The Tribunal found that this will be the result of the non-discriminatory enforcement of a law of general application. The Tribunal also took into account the prison conditions in Sri Lanka. The Tribunal found that it did not accept that those conditions would be for one or more of the five Convention reasons as required by s.91R(1)(a) of the Migration Act 1958.  The Tribunal was not satisfied there was a real chance the applicant would suffer persecution on return to Sri Lanka because of his illegal departure from Sri Lanka or because he claimed asylum in Australia, being a western country, or for being a failed asylum seeker returning to Sri Lanka. 

12. The Tribunal found that it was not satisfied that there was a real chance on return of the applicant to Sri Lanka, he would suffer serious harm for reasons of his illegal departure from Sri Lanka or because he claimed asylum in Australia, being a western country, or for being a failed asylum seeker returning to Sri Lanka.  The Tribunal did not accept that there was a real chance the applicant would be killed or suffer serious harm, abduction, torture, detention, physical harassment, physical assault and possibly death or be denied the ability to travel freely outside his area to earn a livelihood and access basic services that would threaten his ability to subsist by the Sri Lankan government or authorities or the Sri Lankan army, navy, CID, EPDP, criminal elements having connection to the Sri Lankan slavery networks. 

13. The Tribunal was not satisfied there was a real chance the applicant would suffer serious harm or harm of any kind on return to Sri Lanka for the reasons he claimed.  The Tribunal found that it was not satisfied the applicant had a well-founded fear of persecution for a Convention reason should he return to Sri Lanka now or in the reasonably foreseeable future.  The Tribunal turned to the issue of complementary protection and found that it did not accept there was a real risk the applicant would suffer significant harm or harm of any kind on return to Sri Lanka for the reasons claimed. 

14. The Tribunal did not accept that the applicant was of adverse interest to anyone in Sri Lanka. The Tribunal was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that the applicant would suffer significant harm. The Tribunal found that the applicant did not satisfy the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate. 

15. From the bar table, the applicant maintained that whatever he told the Tribunal was true and that the events that he alleged occurred have taken place.  The solicitor for the first respondent submitted that what was said by the applicant from the bar table was merely cavilling with the findings of the Tribunal and inviting an impermissible merits review, which this Court has no power to conduct.

16. In relation to ground 1, the solicitor for the first respondent submitted that the Tribunal’s reasons identified the evidence supporting the findings made by the Tribunal and that this was a case where there were adverse credibility findings that were open on the material before the Tribunal, and that ground 1 fails to identify any sufficiently arguable case to warrant the Court setting aside the order made on 8 April 2016.

17. In relation to ground 2, the solicitor for the first respondent submitted that the ground lacks sufficient content to be meaningful.  The solicitor for the first respondent submitted that the Tribunal conducted its review in an orthodox way, that the reasons identified the applicant’s claims and evidence, and that the findings were open and took into account the country information. It was submitted that ground 2 failed to identify any sufficiently arguable case to warrant setting aside the order made on 8 April 2016.

18. I accept the submissions of the first respondent that ground 1 fails to identify any reasonably arguable ground of jurisdictional error.  It is apparent that the Tribunal’s decision was supported by an analysis of the applicant’s claims and evidence and the adverse findings were open to the Tribunal.  It is also apparent that the Tribunal took into account country information.  Ground 1 fails to identify any arguable jurisdictional error. 

19. I accept the submissions of the first respondent in relation to ground 2. Ground 2 fails to articulate any meaningful ground of jurisdictional error.  I accept the submissions of the first respondent that it is apparent that the Tribunal dealt with the applicant’s claims and evidence and made findings that were open to it.  Ground 2 fails to identify any arguable jurisdictional error.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error.  I accept the submissions of the first respondent that what was said by the applicant from the bar table invited an impermissible merits review by this Court in respect of which this Court does not have jurisdiction. 

20. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am not satisfied that there is any reasonably arguable ground of jurisdictional error to warrant a setting aside of the order made on 8 April 2016 in the interests of the administration of justice. I am satisfied that there would be no utility in setting aside the order made on 8 April 2016. I am satisfied that there is no arguable case of jurisdictional error in the application on the material before the Court.

21. The Tribunal’s decision was made in accordance with the statutory regime and there is nothing to suggest from the material before the court that the Tribunal failed to comply with the dictates of procedural fairness.  The application in a case is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 August 2016