BSV15 v Minister for Immigration

[2016] FCCA 2461

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSV15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2461

Catchwords:
MIGRATION – Application for a protection (class XA) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal considered the applicant’s fears of persecution in relocating to Lahore upon return to Pakistan – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Applicant sought leave to amend application outside of court timetable – no evidence or explanation for failure to comply with court timetable – leave to amend refused.

Legislation:

Migration Act 1958 (Cth), s.474

Applicant: BSV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2371 of 2015

Judgment of: Judge Smith

Hearing date: 30 August 2016

Date of Last Submission: 30 August 2016

Delivered at: Sydney

Delivered on: 30 August 2016

REPRESENTATION

Counsel for the Applicant: Mr J. Williams

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2371 of 2015

BSV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant seeks leave to amend his application in the form of the document sent to the Court as correspondence by an email dated on 16 August 2016. On 13 October 2015, I made orders including that the applicant had “leave to file and serve any amended application giving complete particulars of each ground of review relied upon by 7 January 2016”. No amended application was filed by that date.

2. On 16 March 2016, I ordered by consent “that the applicant be granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 24 March 2016”. Again, no amended application was filed by that date. Mr Williams, who appeared as counsel for the applicant at the hearing, has not filed any evidence in support of his application to explain the reason for the failure to comply with the court timetable. Nor has he filed any application in the case which is ordinarily required by the rules. Nevertheless, I will deal with it on an informal basis given, as he says, that the applicant would otherwise have been unrepresented.

3. Ordinarily when an application for amendment is to be made late in the day such as in this case, there would be an explanation given, supported by evidence, of the reason for that lateness. As I have said, there is no such evidence in this case.

4. The grounds themselves raise, in my view, no reasonably arguable case. I set out the ground in full.

   Ground 1: Relocation to Lahore

   1.The Tribunal erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the relocation of the applicant to Lahore in Pakistan. Having accepted that the applicant has a well-founded fear of being persecuted for a convention or complementary reason if he is returned to Parachinar, Pakistan, objectively, there was an appreciable risk of the feared persecution occurring if the applicant was relocated in Lahore. Alternatively, it was unreasonable, in the sense of being practicable, to expect the applicant to be relocated to Lahore having regard to a) the particular circumstances of the applicant, b) the circumstances the applicant would reasonably be expected to face in the place of relocation, or c) the impact on the applicant of being relocated to Lahore.

   Particulars

   Appreciable Risk of Harm if Relocated to Lahore

   a)At [72], the Tribunal erred by finding that it is reasonable, in the sense of practicable, having regard to all of the applicant’s circumstances, for him to relocate to Lahore where… there is objectively, no appreciable risk of the occurrence of the persecution which he fears.

   Reasonableness of Relocating to Lahore

   b)At [76], the Tribunal found that it is ‘reasonable for the applicant to relocate to an area of the country outside Parachinar and FATA, such as Lahore, where there would not be a real risk that he will suffer significant harm.’

5. There appear to be two assertions contained in ground 1, which is the only ground in the proposed amended application. The first is that in light of the Tribunal having accepted a well-founded fear of persecution upon return to a particular area in Pakistan, “objectively, there was an appreciable risk of the feared persecution occurring if the applicant was relocated in Lahore”.

6. On its face, that is a statement of fact which was a matter for the Tribunal and dealt with by the Tribunal comprehensively in its statement of reasons.

7. The second, and alternative basis for the first ground, is that it was unreasonable:

   …in the sense of being practicable, to expect the applicant to be relocated to Lahore having regard to a) the particular circumstances of the applicant, b) the circumstances the applicant would reasonably be expected to face in the place of relocation, or c) the impact on the applicant of being relocated to Lahore.

8. The Tribunal dealt with each of those matters, which are, on their face, matters of fact for determination by the Tribunal and not by this Court. In light of that, the grounds as they are raised in the proposed amended application would not, even if accepted, amount to jurisdictional error.

9. As the Court only has power to make the orders sought by the applicant in circumstances where the Tribunal’s decision is affected by jurisdictional error[1], the ground as proposed has little, if any, prospects of success. In light of that, to allow the amendment would be futile and the application is refused.

   [1] See s.474 of the Migration Act 1958 (Cth)

Conclusion

1. There being no other ground pressed, the application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     26 September 2016