BRO15 v Minister for Immigration

[2015] FCCA 3283

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRO15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3283

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Refugees & Migration Division) – Protection (Class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claims and evidence – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), s.476

Applicant: BRO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2290 of 2015

Judgment of: Judge Street

Hearing date: 9 December 2015

Date of Last Submission: 9 December 2015

Delivered at: Sydney

Delivered on: 9 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms A Wong
DLA Piper

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2290 of 2015

BRO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 23 July 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant fears return to Bangladesh because of his and his family’s involvement in the Bangladesh National Party. The applicant also claimed fear of returning because he was involved in a campaign for a leading BNP politician, and he claims fear of return at the hands of a man named Raju, who is also connected to the Awami League, and his associates.

2. On 1 October 2015, the matter was fixed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 and orders were made providing an opportunity for the applicant to file an amended application, further affidavit evidence and submissions.  The applicant has filed a written submission, and other than an affidavit to support an adjournment of the matter that occurred on 27 November 2015, where the show cause matter was relisted for today’s date, no other affidavit evidence has been filed.  The grounds in the application are as follows:

   1. The Tribunal failed to assess my harm on the basis of my support to the BNP.

   2. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

   3. The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League Party as an independent claim.

   4. The Tribunal failed to assess the escalating political violence in Bangladesh since 2012.

3. In relation to grounds 1 and 3, the first respondent submits that it is clear that the Tribunal did consider the applicant’s claims involving the BNP and the Awami League Party and that these were rejected by the Tribunal at paras.53 to 58.  This is a case where the Tribunal made adverse findings in relation to the applicant’s credit and did not find the applicant to be a truthful or reliable witness and was of the view that the applicant had fabricated claims and concocted evidence to achieve a migration outcome.

4. The applicant arrived in Australia on 20 October 2004, having been granted a TU 572 Student visa.  On 14 November 2011, a further application for a TU 572 Further Stay Student visa was made and was refused on 10 February 2012, following which the applicant filed an applicant for review on 12 March 2012, and the Tribunal affirmed the refusal on 15 November 2013.  The application for protection by the applicant was then lodged on 24 December 2013.   The adverse findings made by the Tribunal in relation to the applicant’s credit were the subject of considered reasons, and the adverse findings were open on the material before the Tribunal.  Grounds 1 and 3 fail to make out any arguable case of jurisdictional error. 

5. Ground 2 is a generalised assertion of a failure to consider all aspects of the applicant’s claims and does not identify any arguable jurisdictional error.  It is clear from the Tribunal’s decision that the Tribunal identified the applicant’s claims at paras.24 to 34 and undertook an assessment of those claims at paras.36 to 58.  It is in those circumstances that ground 2 fails to identify any arguable case of jurisdictional error.  In relation to the alleged escalating political violence in Bangladesh, given the adverse findings by the Tribunal in respect to the applicant’s claims, it was not necessary for the Tribunal to address the issue of political violence in Bangladesh.  Accordingly, ground 4 fails to identify any arguable case of jurisdictional error. 

6. The applicant filed written submissions in which he repeated his fears and claims and sought a continuing chance to live in Australia.  The applicant also identified from the bar table that his circumstances here in Australia not being able to work were causing him misery.  Nothing in the applicant’s written submissions or anything said by the applicant from the bar table identified any arguable jurisdictional error. 

7. The applicant identified that he had been in Australia for 12 years and that he did not have, in those circumstances, documents to support his claims.  The applicant identified that if he was given more time, he may be able to get further papers.  The Court treated this as an application for an adjournment.  The application for an adjournment was opposed by the first respondent.  The first respondent identified that the obtaining of any further documents that were not before the Tribunal would not identify grounds upon which any jurisdictional error could be made out. I accept the first respondent’s submission.

8. Further, I am not satisfied that the granting of an adjournment would be of any utility as the applicant has been unable to obtain any documents to date. In those circumstances, the granting of an adjournment would only unnecessarily increase the cost to the parties and utilise limited Court time. For these reasons, the adjournment was refused. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.  I am satisfied that the application fails to identify any arguable case.  The application is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 December 2015