BYN15 v Minister for Immigration and Border Protection
[2017] FCA 1049
•10 August 2017
FEDERAL COURT OF AUSTRALIA
BYN15 v Minister for Immigration and Border Protection [2017] FCA 1049
Appeal from: BYN15 v Minister for Immigration and Border Protection [2017] FCCA 395 File number: VID 273 of 2017 Judge: O'CALLAGHAN J Date of judgment: 10 August 2017 Date of publication of reasons: 1 September 2017 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia – whether primary judge misapplied the definition of “refugee” Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 422B(1), 426A Date of hearing: 10 August 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr C Hibbard Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 273 of 2017 BETWEEN: BYN15
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
10 AUGUST 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(revised from transcript)O’CALLAGHAN J:
This is an appeal from a decision of the Federal Circuit Court of Australia (the FCCA) made on 6 March 2017. The FCCA dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), made on 7 September 2015. The Tribunal affirmed the decision of a delegate of the first respondent, not to grant the appellant a Protection (Class XA) visa (the visa).
The notice of appeal to this Court was filed on 20 March 2017. The appellant was directed by the Registrar to file and serve a written outline of submissions no later than 10 days before the hearing date, namely 1 August 2017. No such submissions were filed.
When the matter was called on for hearing on 10 August 2017, I asked the appellant if he had any submissions that he wished to make in support of his case. He replied “Not really”. The first respondent largely sought to rely on his written submissions. In the circumstances, I dismissed the appeal, and gave ex tempore reasons for doing so. These are those reasons.
PROCEDURAL HISTORY
The appellant is a 26-year-old Sikh citizen of India. He first arrived in Australia on 15 February 2009 holding a student visa. Two further student visas were granted to him, with the final visa cancelled on 6 July 2012. The appellant applied for review of the cancellation, which was refused in May 2013. On 17 September 2014, the appellant applied to the Department of Immigration and Border Protection for the visa. In his application, the appellant claimed that he feared harm from Hindus due to his Sikh religion.
On 28 January 2015, a delegate of the first respondent refused to grant the visa. On 6 February 2015, the appellant applied to the Tribunal for review of the delegate’s decision. Although the appellant indicated that he would attend the Tribunal with a representative, in the events that occurred, neither the representative nor the appellant attended the hearing before the Tribunal which took place on 31 August 2015.
On 7 September 2015, the Tribunal affirmed the decision of the delegate not to grant the visa. In its decision, the Tribunal:
(1)explained the basis for making a decision under s 426A of the Migration Act 1958 (Cth) (the Act) without taking any further action to enable the appellant to appear before it;
(2)set out the appellant’s claims;
(3)based on country information, accepted that some discrimination exists for Sikhs in India, but did not accept the appellant’s claims that Hindus are fighting with minority groups and that no one will be spared;
(4)did not accept the appellant’s claims, as they were vague and lacked detail;
(5)considered the appellant’s current migration history, the claims made in his visa application and the lack of substantive material and evidence to support his claims, and found that the appellant does not face a real chance of persecution for any reason, convention or non-convention related;
(6)was not satisfied that there were substantial grounds for accepting that, as a necessary and foreseeable consequence of being removed from Australia to India, there was a real risk of the appellant suffering significant harm; and
(7)was not satisfied that the appellant was owed protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Act.
On 23 September 2015, the appellant applied for judicial review of the Tribunal’s decision.
On 6 March 2017, the FCCA dismissed the appellant’s application for judicial review. It concluded, relevantly:
The Tribunal’s decision was made on the basis that there was a lack of substantive material and evidence to support the applicant’s claims before the Tribunal. Such a finding was one which a reasonable decision-maker would reach, and the findings of the Tribunal do not disclose any error.
The FCCA further found that the Tribunal complied with its obligations under Div 4 of Pt 7 of the Act, which is “… an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”: see s 422B(1) of the Act.
The appellant then appealed to this Court.
THE APPEAL
An appeal to this Court from orders of the FCCA is an appeal by way of rehearing, and this Court can exercise its powers if it is satisfied that the orders the subject of the appeal are the result of some legal, factual, or discretionary error on the part of the FCCA.
The first respondent submits in the present case that the FCCA was correct to order that the application be dismissed and that the Tribunal’s decision was not affected by any jurisdictional error. The appellant in this Court, although he has not sought to advance any submissions in support of them, proffered two grounds in his notice of appeal. The first ground is that the FCCA misinterpreted the definition of “refugee”. The second ground reads:
I believe I have genuine fear for my life upon return back to my home country. That’s the reason I would like to appeal to Federal Court to take fresh look at this matter.
The notice of appeal further states that the appellant would be “submitting affidavits and supporting evidence to support [his] application”. No such affidavits, or any other evidence, were filed.
As to the first ground, namely that the FCCA misinterpreted the definition of refugee, I reject that contention. As the first respondent submitted, the Tribunal correctly summarised the refugee criterion as it applied to the appellant at [7]-[16] of its decision. It then went on to consider the appellant’s claims in the context of that criterion. After concluding that it did not accept any of the appellant’s claims, it found that the appellant “does not have a real chance of persecution for any reason, convention or non-convention related”.
It went on to make a finding that the appellant did not meet the requirements of the refugee criterion contained in section 36(2)(a) of the Act. In my view, the Tribunal correctly applied the refugee criterion to the appellant’s claims, and the FCCA was correct to make that finding, as it did at [24] of its reasons.
As to the second purported ground of appeal, that ground seeks to do no more than to agitate the merits of the decision made by the Tribunal. It forms no part of the function of this Court to engage in such an exercise.
DISPOSITION
For the reasons given above, on 10 August 2017, I dismissed the appeal and ordered that the appellant pay the first respondent’s costs, as agreed or assessed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Callaghan. Associate:
Dated: 1 September 2017
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