BRL15 v Minister for Immigration

[2016] FCCA 1529

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1529

Catchwords:
MIGRATION – Judicial review – adjournment – protection visa.

Cases cited:

Aon Risk Services Australia Limited v Australia National University [2009] HCA 27.

Applicant: BRL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1901 of 2015

Judgment of: Judge Harland

Hearing date: 17 June 2016

Date of Last Submission: 17 June 2016

Delivered at: Melbourne

Delivered on: 23 June 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms Mitchell

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application filed 22 July 2015 is dismissed.

2. The applicant to pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1901 of 2015

BRL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Tribunal affirming the delegate’s decision to refuse the applicant’s application for a protection visa.  The applicant appeared today with the assistance of an interpreter but was unrepresented.  It was clear from what the applicant said that whilst he had received the respondent’s written submissions he did not understand the content of those submissions and said that he wanted more time to arrange for a lawyer to act for him. 

2. The applicant made an oral application for an adjournment. I refused his application for an adjournment and noted that he had not contacted the respondent before today to seek an adjournment for the following reasons: 

   a)The application was filed in this court on 22 July 2015, almost a year ago;

   b)Registrar Caporale made the usual directions and listed the matter for hearing before me today on 3 February 2016.

3. Therefore, the applicant has had many months to secure legal representation and prepare for today’s hearing.  It is a reality in this Court and in migration matters as well as other matters that many people are unable to afford legal representation and appear without that assistance.  In refusing the adjournment, I was mindful of the principles set out by the High Court in its decision of Aon Risk Services Australia Limited v Australia National University [2009] HCA 27.

4. It is apparent from the content of the application for judicial review that the applicant had some assistance with preparing the grounds for review, but the grounds are somewhat difficult to follow in the way they are drafted, particularly with respect to ground 1(a). I went through the grounds with the applicant in as plain English as I could as as he had also indicated that he did not fully understand the claims set out in his application.

5. The first ground alleges that the Tribunal made a jurisdictional error and failed to consider the full integers of his claim.  In particular, ground 1 complains about paragraph 78 of the Administrative Appeals Tribunal decision.  As I indicated to the applicant, paragraph 78 is merely a summary paragraph near the conclusion of the decision and it is necessary to consider the previous paragraphs to decide whether or not the Tribunal had considered the whole of his claim.

6. The second ground complains that the Tribunal failed to consider his membership of a social group, including his ethnicity, place of residence and whether or not he was at risk of harm because of his membership of that particular social group. 

7. The final ground complains that the Tribunal failed to aggregate all of his claims. 

8. Given the applicant’s indication that he was not able to understand the respondent’s written submissions I imposed upon the respondent’s solicitor to speak to those submissions prior to hearing from the applicant, then gave the respondent a further opportunity to respond to anything arising.

9. I explained to the parties that I was doing this to ensure as best as possible in the circumstances that the applicant understood the nature of the argument against him before he spoke to his application.  Ms Mitchell helpfully and succinctly summarised the chronology of this matter and outlined the nature of the applicant’s claims and the manner in which the Tribunal dealt with those claims.  The applicant had the assistance of a lawyer in preparing his application for a protection visa, his interview with the delegate and his representative also prepared detailed submissions prior to the Tribunal hearing and also attended the Tribunal hearing with him.

10. The written submissions prepared by his representative summarised the issues for determination before the Tribunal as the following:

    a)Does the applicant have a well-founded fear of persecution for reason of his race, being Tamil, and an imputed political opinion, being pro LTTE; 

    b)Does the applicant have a well-founded fear of persecution for reasons of his membership with a particular social group, being Failed Sri Lankan Asylum Seekers; and

    c)Is he entitled to complementary protection.

11. The complaint by the applicant that the Tribunal did not consider his ethnicity, place of residence and his membership with a social group cannot be made out.  The Tribunal refers to his Tamil ethnicity at paragraphs 37, 40, 68 through to 73 and also deals with his imputed political opinion in those paragraphs.  It is clear that the Tribunal was aware that the applicant is a young Tamil male from the north of Sri Lanka and considered those matters.  The Tribunal also considered in some detail the applicant’s claim to fear harm as a result of his interactions with an altercation with a man called Rias.

12. I will not go into the applicant’s claims with respect to Rias in detail as it is well summarised and referred to in the respondent’s written submissions and in the Tribunal’s decision itself.  In particular, I refer to paragraph 8 of the respondent’s written submissions in that regard.  The Tribunal considers that matter in some detail at Court Book (“CB”) 285 to 286 and concluded that the applicant had fabricated significant aspects of his claim with respect to Rias and did not accept that the applicant feared harm from Rias for any reason.

13. It was also clear that one of the issues was that any fear of harm the applicant had with respect to Rias was not for a convention reason.  In any event, the Tribunal rejected that aspect of the applicant’s claim.  The Tribunal also dealt with the issue of the applicant’s fear of harm from Sri Lankan authorities generally with respect to returning to Sri Lanka as a failed asylum seeker and also having left Sri Lanka illegally.  The Tribunal dealt with those claims by referring to the country information.  These are dealt within the CB at paragraphs 37, 40, 61, 64 and 74 to 76 and concluded that whilst the applicant would be questioned and fined the authorities would not apply the law in a discriminatory manner and that it would not amount to persecution.

14. It made similar findings with respect to the applicant having departed from Sri Lanka illegally.  It is clear from a fair reading of the Tribunal decision that the Tribunal did consider all aspects of the applicant’s claim made before the Tribunal.  The Tribunal does not have an obligation to make a claim for the applicant.  Given the detailed submissions made by the applicant’s then lawyer the Tribunal clearly dealt with the issues arising out of those submissions and specifically refers to those submissions in its decision at paragraph 40.

15. Having rejected the applicant’s claim with respect to Rias and finding that he was not a credible witness, there was no further obligation on the Tribunal to further aggregate those claims.  It is clear from a fair reading of the decision that the Tribunal did consider the applicant’s claims separately and cumulatively.  The applicant, unsurprisingly given the fact that he appears without legal representation, was not able to identify any further details as to why he says the Tribunal fell into jurisdictional error.

16. He referred to it being impossible to obtain documents from Sri Lanka to put those documents before the tribunal and refers to difficulties that his wife had at the time, having given birth to a child shortly before he left Sri Lanka and her mother having passed away and that his wife was only able to obtain three documents for the Tribunal.  Those documents which were untranslated appear in the CB and were summarised by his lawyer.

17. Those issues are not raising a proper ground for review as the applicant is restricted to what was put before the Tribunal and those documents were considered.   The issue of whether or not he could have obtained any other documents isn’t a matter that arises on review.  He also referred to being very concerned about Rias.  That is really inviting a merits review and is something that was clearly dealt with in the Tribunal’s decision. 

18. Having considered all of the above, I am satisfied that the Tribunal did not make a jurisdictional error and the application must be dismissed. The respondent seeks costs and as costs ordinarily follow the event in matters of this type I will order accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 23 June 2016