BUA15 v Minister for Immigration

[2016] FCCA 158

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUA15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 158

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claim – whether the Immigration & Emigrants Act 1949 is a law of general application – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 476

Applicant: BUA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2430 of 2015

Judgment of: Judge Street

Hearing date: 2 February 2016

Date of Last Submission: 2 February 2016

Delivered at: Sydney

Delivered on: 2 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent:

Ms H Musgrove

Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2430 of 2015

BUA15

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 11 August 2015.

2. The applicant was found to be a citizen of Sri Lanka, and arrived in Australia as an unauthorised boat arrival on 12 August 2012.  The applicant alleged a well-founded fear of persecution because of an imputed political opinion of being affiliated with the LTTE and because of his membership of a particular social group of Sri Lankans forcibly recruited by the LTTE against their will, and thereby imputed with the LTTE political opinion by Sri Lankan authorities, and by reason of having fled Sri Lanka illegally.

3. By a letter dated 19 March 2015 the applicant was invited to attend a hearing before the Tribunal on 12 May 2015 which the applicant attended together with his representative to give evidence and present arguments.

4. On 15 October 2015 a Registrar of the Court fixed this matter for hearing and provided an opportunity for the applicant to file an amended application, affidavit evidence or submissions.  No such documents were filed.  The grounds in the application are as follows:

   1. The Tribunal erred by failing to make a relevant consideration as to what constituted significant harm.

   Particulars

   a. The Tribunal failed to consider whether the enactment of the Immigrants & Emigrants Act by the Sri Lankan Parliament constituted an act for the purposes of the definition of degrading punishment or treatment in s5(1) of the Act.

5. The Tribunal made adverse credibility findings in relation to the applicant’s claims for identified reasons, that were open on the material before the Tribunal.  In dealing with the issue of illegal departure, the Tribunal found that the treatment to which the applicant would be exposed as a result of being an illegal departee would be no more than the consequence of the application of a non-discriminatory enforcement of a law of general application.

6. The ground raised in the application focuses upon the enactment of the Act falling within the definition of s.5(1) of the Migration Act 1958 in relation to complementary protection and the risk of suffering significant harm. The Tribunal expressly referred to s.5(1) in paras.58 and 60.

7. The findings made by the Tribunal that the Act was a non-discriminatory law of general application are inconsistent with the proposition that the Act enactment of the statute constitutes an Act for the purposes of the definition within s.5(1). That finding by the Tribunal that the Immigrants and Emigrants Act was a non-discriminatory law of general application is inconsistent with the assertion raised by ground 1, and accordingly, ground 1 does not make out any jurisdictional error.

8. Further, I accept the submission of the first respondent that no such fear of significant harm, as alleged in ground 1, was articulated before the Tribunal.  Accordingly, the Tribunal was not required to deal with an issue not raised by the applicant, and the argument advanced was not an issue that squarely arose on the papers before the Tribunal.

9. Further, it is clear from the Tribunal’s reasoning that the Tribunal took into account the conditions and treatment to which the applicant would be exposed in respect of the application of the Immigrants and Emigrants Act, and those findings are inconsistent with the substance of ground 1.  Ground 1 fails to make out any jurisdictional error.

10. From the bar table the applicant raised criticisms of the process that had occurred before the delegate.  This Court does not have jurisdiction in relation to the delegate’s decision.  The applicant also complained as to the process before the Tribunal, and that the Tribunal had not given proper consideration to his claims.  That contention is inconsistent with the careful summary by the Tribunal of the applicant’s claims and evidence and the detailed reasons in relation to the adverse credibility findings which were open on the material before the Tribunal.

11. The applicant also sought to advance details of what had occurred in relation to his experiences from 1984 as a Singhalese fisherman and the particular village from which he came, and what had occurred to his relatives.  In this regard I accept the first respondent’s submission that the applicant was, in essence, seeking an impermissible merits review.  This Court does not have jurisdiction to make fresh findings of fact in relation to the applicant’s claims, and nothing said by the applicant in that regard identified any jurisdictional error by the Tribunal.

12. The applicant also raised a concern that he would suffer significant harm as a result of his detention and being arrested, and made reference to a concern that he had been a people smuggler or that he might be identified as a people smuggler.  That was an issue that the Tribunal clearly took into account at paras.53 and 54.  The treatment and processes to which the applicant would be subjected as a result of being detained or arrested were the subject of consideration and adverse findings by the Tribunal in paras.58 to 62.

13. The applicant also complained as to the adverse credit findings made by the Tribunal, and maintained that he would be subjected to significant harm, and believed that he would be subjected to human rights violations.  As indicated above, the adverse credit findings were open and the applicant is seeking an impermissible merits review. 

14. Nothing said by the applicant identified any jurisdictional error by the Tribunal.  For these reasons, the application is dismissed.

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

Date: 8 February 2016