BYY15 v Minister for Immigration
[2016] FCCA 2772
•13 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYY15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2772 |
| Catchwords: MIGRATION – Judicial review – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.32(2)(a), 425 Immigrants and Emigrants Act 1959 |
| Applicant: | BYY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2207 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 13 September 2016 |
| Date of Last Submission: | 13 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 13 September 2016 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondents: | Mr Cunynghame |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed 25 September 2015 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2207 of 2015
| BYY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review which was filed on 21 October 2015. The application does not disclose any grounds for review, although the affidavit in support refers to the Tribunal applying the wrong test, but is not further expanded upon. The Registrar made the usual directions on 2 March 2016 providing for a timetable for filing, including the application filing and serving any amended application with any additional grounds of review, any affidavits and submissions. The applicant has not filed any further documents, which is not uncommon when an applicant is self-represented.
The Minister’s representative filed written submissions, and the applicant acknowledged having received those submissions and having read them. The applicant arrived by boat to Australia in August 2012. He is a Sinhalese man from Sri Lanka. He prepared a statutory declaration in support of his claims, which appears in the Court Book (“CB”), together with several documents, including a translation of a police report which appears at CB at page 99.
The applicant gave evidence before the delegate, and, after the delegate refused the application for a visa, the applicant applied to the Tribunal for review. The applicant was assisted by a migration agent who prepared brief written submissions in advance of the Tribunal hearing and also appeared at the Tribunal hearing. The applicant was invited to appear before the Tribunal and make written submissions prior to the Tribunal, and that hearing invitation appears at CB pages 146 to 149. The Tribunal affirmed the delegate’s decision.
The applicant’s claims are summarised in the delegate’s decision and in the Tribunal’s decision. The claims essentially arise from a dispute that the applicant had with a man called Jemunu. He says that he asked him to arrange a visa for him, so he could return to Korea where he has previously worked. Jemunu had connections with, or worked for an MP and told the applicant he would be able to assist with the visa. That MP was shot, and Jemunu then said that he could no longer obtain the visa.
The applicant had paid Jemunu a sum of money in order to get the visa and wanted that money back. The applicant says he borrowed money for that purpose and was under pressure from creditors. At the hearing today, the applicant indicated that he disagrees with the findings of the Tribunal’s decision and, in particular, complains about findings that the Tribunal made with respect to the police report, which appears at CB page 99. He clarified that he accepts that the Tribunal considered the document but disagrees with the conclusion reached.
It is apparent that the delegate did not accept that that document was authentic so that the applicant was clearly on notice that there was an issue that he would need to address before the Tribunal. The Tribunal refers to that document at [19] of the decision and found that the letter was not authentic because there was nothing on the face of it to suggest it was an official document issued by Sri Lankan police, and there were a number of spelling errors in the document as well as inconsistencies with respect to the amount of money referred to in that document.
The Tribunal did not place any weight on that document. The issue of weight is a matter for the Tribunal and not the Court. Insofar as the applicant’s complaint with respect to that document, it is really inviting the Court to engage in an impermissible merits review. The applicant also referred to the Tribunal not considering evidence with respect to death threats. However, it is apparent from the decision record that the Tribunal did consider the evidence as to threats but did not accept the applicant’s veracity with respect to aspects of his claim. The Tribunal accepted that the applicant did have a dispute with Jemunu and accepted that it was possible that the applicant made a complaint to the police.
With respect to the moneylenders, the applicant’s own evidence was that he had repaid that sum accordingly there was no longer an issue with respect to them. A significant finding of the Tribunal is at [25] of the decision, which is the dispute that the applicant had with Jemunu was a dispute between non-state parties and was not for a Convention reason but was a dispute about money.
In order to comply with the requirements set out in section 32(2)(a) of the Migration Act1958 (Cth) (“Migration Act”), it is necessary to establish that the applicant has a well-founded fear of being persecuted for one of the Convention reasons, which include the applicant’s race, religion, nationality, membership of a particular social group or political opinion. The Tribunal found that the applicant did not satisfy that criteria. The Tribunal then considered the applicant’s claim that he feared harm as a illegal departee and failed asylum seeker.
The Tribunal refers to country information with respect to that and refers to the Immigrants and Emigrants Act 1959 and the likely circumstances of the applicant’s return and the fact that the Immigrants and Emigrants Act 1959 is a law of general application in Sri Lanka and that particular individuals are not targeted, refers to the applicant being detained, needing bail, needing a family member to provide surety and notes that the applicant has various family members in Sri Lanka, refers to a brief period of detention and possibility of a fine, but finds that those conditions do not amount to serious harm.
The Tribunal then goes on to consider the complementary protection grounds and notes, at [42] in particular, that it is not necessary for there to be Convention nexus when considering the complementary protection grounds but gives reasons as to why it is not satisfied that Australia owes the applicant protection under those complementary protection grounds. The respondent relies on his written submissions and submits that the Tribunal has not made any jurisdictional error. It is clear from the CB that the Tribunal complied with its obligations with respect to procedural fairness under Part 7 Division 4 and, in particular, section 425 of the Migration Act.
Having considered the material in the CB, the Tribunal’s decision and submissions made today, I find that the Tribunal has not made a jurisdictional error.
The first respondent sought an order for costs in his favour of $5,800 which is less than the amount allowed in the Federal Circuit Court scale of costs: Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3. I will make that order.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 27 October 2016
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