BZC15 v Minister for Immigration

[2016] FCCA 1448

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZC15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1448

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal assessed the applicant’s claims under the complementary protection criteria.

Legislation:
Migration Act 1958, ss.36(2)(aa), 36(2A), 424A

Applicant: BZC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2209 of 2015

Judgment of: Judge Riley

Hearing date: 26 May 2016

Date of last submission: 26 May 2016

Delivered at: Melbourne

Delivered on: 26 May 2016

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Natasha Bosnjak

Solicitors for the first respondent: Clayton Utz

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The oral application for an adjournment be refused.

2. The application filed on 28 September 2015 be dismissed.

3. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,825.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 2209 of 2015

BZC15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is, firstly, an application for an adjournment of a migration application.  The applicant sought a protection visa that was refused by a delegate of the Minister and then by the Tribunal.

2. The applicant filed the application in this court on 28 September 2015.  A directions hearing was held on 2 March 2016.  On that date, the matter was listed for final hearing today.  The applicant appeared in court today without the benefit of a lawyer but with an interpreter.

3. Some time into the hearing the applicant said that he needed more time.  He said he wanted an adjournment of two months to be able to get a lawyer.  He said that he had not been able to get a lawyer in the past.  He said that, previously, he worked full-time but now he worked on a casual basis in a carwash earning $425 per week.  He said that what had changed is that previously he had lost money because he had gone to Crown.  The implication was that the applicant would be able to save money now because he was no longer going to Crown.  He said that he thought that a lawyer to conduct the final hearing for him would cost $1,500.

4. The first respondent opposed the application for an adjournment.  The first respondent argued that the applicant had had ample time to obtain a lawyer.  The first respondent noted that Victoria Legal Aid provides duty solicitors at directions hearings which the applicant could have accessed if he had wished.  The first respondent also said that the application for an adjournment should be refused because the substantive application has no prospects of success and therefore there would be no utility in granting an adjournment. The applicant said, in reply, that when he was here at the directions hearing he did not know that lawyers were available.

5. It seems to me that there is not a realistic prospect that the applicant will be able to fund a lawyer if the matter were adjourned for two months.  The application was filed about eight or nine months ago.  That is ample time to find and fund a lawyer if the applicant had the ability to do so.  While the applicant implied that he would no longer go to Crown and lose money, there is little reason to believe that would be the case.  It is notoriously difficult to overcome a gambling habit.  Also, it seems unlikely that $1,500 would be sufficient to fund a lawyer to conduct the proceeding.

6. In these circumstances I do not consider that it is appropriate to grant an adjournment.  Consequently, the oral application for an adjournment is refused.

7. This is, secondly, an application for review of a decision of the Refugee Review Tribunal.  The applicant applied for a protection visa on 24 September 2013.  A delegate refused that visa on 21 July 2014 and the applicant then applied for review by the Tribunal.

8. The applicant claimed that he was an employee of a particular musical group in India.  He said that he was employed building sets for the group.  He said that he witnessed an accident in which two people died and another was injured. 

9. The applicant said that he told the owner of the building that he would make a statement to the police. He said that threats were made to him by the owner of the musical group and others in relation to his evidence.  He said that he was attacked and threatened and that he was not safe in India.

10. The Tribunal identified numerous inconsistencies between the applicant’s written claims and his statements to the Tribunal at the hearing.  On the basis of those inconsistencies, the Tribunal did not accept the applicant’s claims about working for a musical group, witnessing an accident, or being threatened or attacked.

11. The Tribunal said in its reasons for decision that it had put to the applicant its concerns about the applicant’s credibility and raised with the applicant the inconsistencies between his initial visa application and the evidence he gave at the hearing.  The Tribunal found that the applicant was not a credible witness, and  rejected the applicant’s claims virtually in their entirety.  The Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm if he were to return to India.  The Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations.

12. The application to this court set out grounds as follows (errors in original):

    I have applied for a protection visa which was refused by DIBP. Then I have made review in AAT which also went against me. The decision was given by AAT not to issue me a protection visa was on the basis of grounds that I didn’t meet alternatie criteria specified in s 36(2)(a), (aa), (b) or (c). The criteria for protection visa is set out in s.36 of the act and schedule 2 of the Migration regulation 1994.

    I firmly believe [illegible] be considering my case. AAT simply ignored the criterion set out in s 36(2)(aa) of the act. Therefore there is an error of law by ignoring the criterion specified in subsection of the act. AAT has ignored facts put forward by me which are relevant to s 36(2)(aa). I am surely confident that after I return to my home country I would be the target of significant harm.

    Significant harm for this purpose is elaborately defined in s 36(2A). S 5(1) explains A person will suffer significant harm if he or she will be arbitarily deprived of their life or the death penalty would be carried out on the person or the person is subject of torture.

    I have given my claims to AAT when opted for review which prove that if I return back to India. I would be the subject of torture. Hence s36(2A) applies to me. Making a decision on basis of ignoring a law or without taking every relevant section of the law into consideration is an error of law and hence the decision must be quashed.

13. As can be seen, the applicant focused in his application to this court on the complementary protection criterion.  The Tribunal  set out in two paragraphs at the commencement of its reasons for decision an accurate but brief summary of the complementary protection provisions.  It seems to me that in the context of this case, the Tribunal dealt adequately with the question of complementary protection.  The Tribunal rejected the applicant’s claims in a wholesale fashion on the grounds of credibility.  Having done so, nothing remained for the complementary protection provisions to operate on.  In these circumstances it was open to the Tribunal to conclude, as it did, that the applicant did not face a real risk of significant harm if he returned to India.

14. The applicant did not suggest in any way that he was at risk of harm in India for reasons other than the events involving the musical group.  This is not a case where some other claim might be seen to have arisen on the materials.

15. Before the court today, the applicant was unable to point to anything that might constitute a jurisdictional error.  He said that he did not attend the departmental interview because he told them that he had changed his address but they sent the correspondence to his old address.  That may be so but the court is not permitted to review the delegate’s procedures and decision.  The court is only permitted to review the Tribunal’s processes and decision. 

16. The Tribunal did note in paragraph 24 of its reasons for decision that the applicant did not attend his departmental interview.  That was simply stated as a bald fact.  The Tribunal did not rely on the applicant’s failure to attend his departmental interview in reaching its decision.  The Tribunal expressly relied in its reasons on the inconsistencies between the applicant’s initial visa application and the statements made by the applicant at the Tribunal hearing.  As any error the delegate may have made in his decision does not appear to have impacted on the Tribunal’s decision, this point is without merit.

17. Otherwise, the applicant did not advance any submissions to the court. I have read the Tribunal’s reasons for decision carefully. Those reasons indicate that the Tribunal conducted a hearing with the applicant. The Tribunal put its concerns about the applicant’s credibility and inconsistencies to the applicant at the hearing. The Tribunal does not appear to have relied upon any information that it was obliged to put to the applicant under s.424A of the Migration Act 1958.  I am unable to detect any breach of the rules of natural justice either under the common law or under the legislation. 

18. The Tribunal dealt with the question of complementary protection in a very brief manner.  However, that seems to me to have been adequate in the circumstances of this case.  I am unable to detect any manner in which the Tribunal misapplied the law.  It also appears that the Tribunal thoroughly considered all the claims made by the applicant.

19. All in all, I am unable to detect any jurisdictional error made by the Tribunal in this case.

20. Consequently, the application must be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  15 June 2016