BQH16 v Minister for Immigration

[2017] FCCA 2174

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQH16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2174

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12(1)(a)

Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa)

Applicant: BQH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1693 of 2016

Judgment of: Judge Manousaridis

Hearing date: 22 August 2017

Date of Last Submission: 22 August 2017

Delivered at: Sydney

Delivered on: 8 September 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitor for the First Respondent:

Ms B Rayment of

Mills Oakley Lawyers

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1693 of 2016

BQH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for judicial review be dismissed because the application does not raise an arguable case for the relief it seeks. By that application the applicant, a citizen of Fiji, seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. In her application for a Protection visa,[1] the applicant claimed her late husband was a police inspector in Fiji. In 2006, the year the military took over the government in Fiji, military officers beat people who were protesting at Parliament House. Those people were then taken to the police station where the applicant’s husband worked. The applicant offered to help clean their wounds, clothed and fed them. The applicant claimed the incident “haunted her life”. The applicant claimed her husband and the police force generally were not on good terms with the military forces. The applicant’s husband was affected both emotionally and physically and after two and a half years got sick and passed away in December 2009. The applicant said her husband’s sudden death affected her life and she believed the military rule was one of the “factors of harm” in her family’s welfare.

   [1] CB1-27

2. The applicant claimed anything can happen to her if she returns to Fiji and for this reason she fears for her life. The applicant feared if the military won the election in 2014 more harm will be experienced in Fiji and there will be another five years of fear and undemocratic leadership.

Tribunal decision

1. The Tribunal accepted the applicant’s husband was in the Fijian Police Force and passed away in 2009. The Tribunal acknowledged the applicant may have been exposed to events that were disturbing. The Tribunal, however, was not satisfied that on the basis of the applicant tending to a group of injured protestors some 10 or 16 years ago, noting the applicant provided different dates in her written application and oral evidence, that the applicant had suffered serious harm.[2] The Tribunal placed significant weight on the applicant’s only being involved in one incident which was a long time ago; the applicant’s not indicating she personally knew any of the protestors; and the applicant’s having travelled out of and back to Fiji seven times since 2000 finding that demonstrated she did not fear being in Fiji.[3]

   [2] CB100, [22]

   [3] CB100, [22]

2. In response to a question about the harm she fears if returned to Fiji, the applicant referred to her joining the Fijian Democracy Freedom Movement (FDFM) in Australia and claimed something might happen to her when she returns to Fiji for that reason. The applicant said she attended a number of meetings once or twice a month, joined as a financial member, and last attended a meeting in 2014. The applicant claimed she became involved with an organisation led by Oni Kirwan, although she could not remember the name of the organisation.[4] The applicant said she attended three meetings, the last meeting being about 3 weeks before the Tribunal hearing. The Tribunal, relying on independent country information indicating the political situation had stabilised significantly in Fiji, found there was no real chance or real risk the applicant would suffer serious or significant harm as a result of her political opinion.[5]  The Tribunal so found because it was not satisfied the applicant’s limited attendance at a number of meetings of either the FDFM or the PISAI meant she would be of interest to the authorities in Fiji; or that the applicant, based on the applicant’s current and past political involvement, will be anything but a low level political supporter.[6]

   [4] Pacific Indigenous Samaritan Association Inc (PISAI)

   [5] CB101, [27]

   [6] CB102, [34]

3. The Tribunal concluded the applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act 1958 (Cth) (Act) and was not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.[7]

   [7] CB103, [37]-[38]

Grounds of application

1. The grounds of application comprise 31 paragraphs, none of which refer to the Tribunal’s decision. The grounds consist of a statement given in the name of the applicant. After stating the name of the applicant, paragraph 1 states the applicant is “seeking political asylum in Australia”. The remaining grounds contain assertions of fact and submissions in support of a claim for asylum. Further, the grounds on which such claim is based go beyond the grounds on which the applicant relied in her application for a Protection visa.

2. The applicant also relies on an affidavit she filed in support of the application to this court. Like the grounds stated in the application, the affidavit does not address the Tribunal’s decision but instead purports to state a claim for protection. Further, the grounds on which the applicant relies in the affidavit go beyond the grounds on which the applicant relied in her application for a Protection visa. I read the affidavit subject to relevance.

3. At the hearing before me, the applicant, who is not legally represented, said that the matters stated in the application and in her affidavit were not true. The applicant said these documents had been prepared by Ms Oni Kirwan or persons within the group with which Ms Kirwan is associated, and that the applicant subsequently became aware that the matters stated in her application and her affidavit were similar to other affidavits and applications that had been filed by Fijian nationals whom Ms Kirwan and members of her group have purported to assist.

4. In these circumstances, the affidavit which the applicant filed is not relevant. Further, none of the matters set out in the application disclose any arguable case of jurisdictional error.

Other matters raised at hearing

1. Given the applicant’s frank acknowledgment to me that the documents she filed do not represent her position, I explained to the applicant the steps by which a person in Australia may apply for the grant of a Protection visa. I did so with a view to determining whether the applicant had any complaint about the hearing before the Tribunal which might give rise to an arguable case of jurisdictional error.

2. The applicant referred to the hearing before the delegate. The applicant said that in response to an answer she had given to a question asked by the delegate, the delegate asked why the applicant had not mentioned that before. The applicant said it was due to incorrect interpretation. The applicant said the question referred to whether the applicant was in Parliament. The delegate, in his decision, refers to asking the applicant whether she was involved in the protests in Parliament House in 2000, and the applicant’s answering “no”; and it is perhaps to this question that the applicant intended to refer. In any event, this Court does not have jurisdiction to consider whether the delegate made any jurisdictional error. Whether or not, therefore, a question the delegate asked of the applicant or whether an answer the applicant gave to the delegate had been incorrectly interpreted is not a matter that gives rise to an arguable case of jurisdictional error by the Tribunal.

3. I asked the applicant whether she had any complaint about the manner in which the Tribunal reviewed the applicant’s case. The applicant said she had no complaint. That is a proper concession. It is beyond argument that the Tribunal considered the applicant’s claims and affirmed the delegate’s decision for reasons that were reasonably open to it.

Disposition

1. There is nothing in the Tribunal’s decision or in the material that was before me that is capable of giving rise to an arguable case that the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 8 September 2017