BRQ16 v Minister for Immigration

[2017] FCCA 1360

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRQ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1360

Catchwords:
MIGRATION – Show Cause Hearing – Applicant made new claims before the Court regarding the identity of an uncle – new claims directly contradict earlier claims – no arguable case.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth)

Applicant: BRQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1434 of 2016

Judgment of: Judge McNab

Hearing date: 5 June 2017

Date of Last Submission: 5 June 2017

Delivered at: Melbourne

Delivered on: 5 June 2017

REPRESENTATION

The Applicant in person

Counsel for the Respondent: Ms Wong

Solicitors for the Respondent: Mills Oakley

ORDERS

1. The application filed 7 July 2016 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1434 of 2016

BRQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This matter comes before the Court by way of an application made by the applicant seeking review of the decision of the Tribunal. The application was filed on 6 July 2016. 

2. The grounds of the application are that the decision of the Tribunal, dated 17 June 2016:

   a)is affected by an error of law; and

   b)denied the applicant procedural fairness. 

3. On 7 December 2016, orders were made by Registrar Caporale, fixing this application for a Show Cause Hearing, pursuant to r.44.12 of the Federal Circuit Court Rules 2011 (Cth) on this day. Order 2 of the orders made provision for the applicant to file and serve 28 days before the Show Cause Hearing any amended application with proper particulars of the grounds for the application and the supplementary court book and written submission. No amended application with particulars was filed or served.

4. The applicant was asked whether he had any submissions to make in relation to the grounds of review and he stated to the Court that the error in the decision is that the Tribunal confused references to an uncle. He said that there was continuous confusion and that the uncle who had caused all his problems was an uncle who had died in 2007.

5. The Tribunal decision at [67] refers to an uncle who was shot in 1997, wherein the Tribunal said:

   I accept too that he had an uncle that was shot in 1997 and the family was not aware whether he was or was not involved with the LTTE. I do not accept that the 1997 incident indicates any ongoing adverse attention from the authorities to the applicant or his father or his family more broadly and the applicant has not made such a claim.

6. The Tribunal made reference in its decision to statements made by the applicant that a particular uncle who had been involved with the LTTE was the cause of attention being directed to the applicant by authorities. I asked the applicant the name of the uncle who had died in 2007 who had caused all the problems, and I was referred by the applicant to the person named in [7] of a statement of the applicant, set out at pages 78 to 84 of the court book. That person’s name starts with T.

7. That statement goes on to make reference to another maternal uncle whose name starts with N, who was said to be a senior LTTE member. Paragraph 8 of the statement notes that he was arrested some time in 2007, and also that in 2006 when the applicant’s father and his brother (the applicant’s uncle with the name starting with the letter N) were abducted and tortured. It is said in [12] that immediately after the arrest of his uncle with the name commencing with the letter N in 2007, the police frequently began coming to the applicant’s residence, and that the police would interrogate the applicant’s father and him, because they believed his family responsible for sheltering his uncle.

8. The applicant made a further statement which was before the Tribunal, which is found at court book page 256, which purports to clarify the earlier statement made, and specifically refers to the uncle with the name commencing with the letter N.[1] The Tribunal considered the statements made in relation to the applicant’s uncle N, in particular at [49] – [52] and [55] – [69]. In my view, the claims now made have no reasonable prospect of success where it is put on the basis that the Tribunal has failed to consider claims made by the applicant before it.

   [1] See [9], [10], [11], [16].

9. The claim is that the uncle who caused all these problems to the applicant was in fact the uncle who was referred to in the decision at [67] with the name starting with “T”, who is the same uncle referred to in [7] of the applicant’s statement.[2] I am of the view that there is no reasonable prospect of succeeding at a hearing that there has been a failure to take into account relevant evidence. The claim that the applicant is now making to the court is completely different to and contradicts the claims he made before the Tribunal. That proposition is established by the written statements of the applicant before the Tribunal.

   [2] Court book, 78.

10. Otherwise, I have read the submissions of the first respondent which set out in a comprehensive way the nature of the background and claims made by the applicant.

11. I also refer to the summary of the Tribunal’s decision, which accurately summarises the reasons for decision.

12. The Tribunal has comprehensively canvassed all the claims made by the applicant in support of his application for a Protection visa, and has reached a conclusion in relation to the merits of those claims on the material placed before it by the applicant and his representative. No material has been placed before the Court, which may establish that there has been an error of law or a failure to provide procedural fairness. For those reasons, I dismiss the application pursuant to r.44.12(1A) of the Federal Circuit Court Rules 2001 (Cth) on the basis that the application has not raised an arguable case for the relief claimed. In the circumstances I order that the applicant pay the respondent’s costs fixed in the sum of $3,606.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  21 June 2017