BYQ15 v Minister for Immigration

[2016] FCCA 262

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYQ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 262

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (class XA) visa – whether the Tribunal was obliged to consider more than the complementary protection obligations – no jurisdictional error – application dismissed. 

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 476

Cases cited:
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: BYQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2618 of 2015

Judgment of: Judge Street

Hearing date: 11 February 2016

Date of Last Submission: 11 February 2016

Delivered at: Sydney

Delivered on: 11 February 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms F Taah
Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2618 of 2015

BYQ15

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 of s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 August 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant arrived in Australia on 23 July 2008 on a subclass 573 student visa. It was only on 1 March 2011 that the applicant first made an application for protection which was refused on 4 May 2011. That refusal was affirmed by the Refugee Review Tribunal on 17 January 2012. The applicant sought judicial review of that decision which was dismissed on 24 August 2012. Consistent with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, on 9 April 2013, the applicant lodged a second application for protection on complementary protection criterion under s.36(2)(aa) of the Act.

3. The applicant was found to be a citizen of Nepal and his claims were assessed against that country.

4. The applicant claimed that he was a supporter of the monarchy and had joined a party in support of the monarchy, the Rashtriya Prajatantra Party – Nepal (“the RPP-N”), in April 2003. The applicant alleged that while living in a particular location, he declined an invitation from Maoists to join their party, and consequently, they tried to abduct him.  The applicant alleged that he decided to move to another location where he started a restaurant and a lodge. The applicant alleged that due to his involvement in the RPP-N, in 2005 the Maoists captured his business which he then had to give up. The applicant alleged that officials were unable to assist him.

5. The applicant alleged that in May 2007, he had been attacked by Maoists when returning from an RPP-N meeting, and that he was stabbed with only minor injuries. The applicant alleged that he went into hiding and then left Nepal using faked documents as life had become impossible. The applicant returned to Nepal twice since his arrival in Australia, to care for sick parents. The applicant claimed that when he returned to Nepal, he was asked for donations and threatened by Maoists and that he returned to Australia because he felt unsafe.  The applicant’s wife and children remained in Nepal.

6. On 5 November 2015, a Registrar of the Court made orders fixing the matter for hearing and providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed an amended application which raises the following grounds:

   1. In assessing my claim for a complementary protection, the Second Respondent has improperly considered itself in deciding the application under the Refugee Convention and Protocol in my respect.

   2. The Second Respondent has made an error of law in dealing with my application for a complementary protection visa. The second respondent misinterpreted s48A in its assessment and determination in dealing with my application.

   (Errors in Original).

7. The Tribunal identified the applicant’s claims as well as the evidence and submissions adduced by the applicant, and made comprehensive adverse credit findings. The Tribunal found that key aspects of the applicant’s claims were manufactured. Those adverse findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.

8. The Court explained to the applicant the nature of the hearing.

9. Ground 1 fails to identify an arguable question of jurisdictional error. To the extent that Ground 1 suggests that the Tribunal should have dealt with the applicant’s second application by reconsidering whether the applicant was a refugee rather than focusing on the complementary protection grounds, it is without substance. The Tribunal was correct to assess the applicant’s claims in his second application solely against the complementary protection criterion under s.36(2)(aa) of the Act. Ground 1 fails to make out any jurisdictional error.

10. Ground 2 appears to be seeking to agitate the same proposition as Ground 1. The decision of the Full Court of the Federal Court of Australia in SZGIZ supports only an entitlement of an applicant, in relation to a second protection visa application made within the then applicable law, to have a criterion not addressed in the first protection application considered. In this case, that is the complementary protection criterion which the Tribunal properly considered. Ground 2 fails to make out any jurisdictional error.

11. Nothing said by the applicant from the bar table identifies any arguable jurisdictional error. 

12. The amended application is dismissed.

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

Date: 2 November 2016