CFA15 v Minister for Immigration

[2016] FCCA 706

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFA15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 706

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause hearing – whether the Tribunal failed consider the applicant’s claims and evidence – no arguable case – application dismissed pursuant to r.44.14 of the Federal Circuit Court Rules 2001.

Legislation:

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

Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: CFA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2902 of 2015

Judgment of: Judge Street

Hearing date: 1 April 2016

Date of Last Submission: 1 April 2016

Delivered at: Sydney

Delivered on: 1 April 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Mr D McLaren
Minter Ellison

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the costs of the first respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2902 of 2015

CFA15

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 8 October 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against the country.

2. The applicant arrived in Australia as an unauthorised maritime arrival on 24 June 2012.  The applicant applied for protection on 23 November 2012.  The applicant claimed to fear persecution if forced to return to Sri Lanka because he will be abducted or killed by the Karuna Group, or that they might frame him by planting a bomb in his house, which the CID would come and find.  The applicant contended that this was because they think the applicant is involved in opposition political party and could be associated with the LTTE.  The applicant also feared that they might use scars on his face from a bomb explosion on his farm to implicate him with an LTTE association. 

3. The applicant contended that he had a well-founded fear of persecution arising from his Tamil ethnicity, his imputed political opinion against the TMVP, Karuna Group, as a supporter of the LTTE and his membership of a particular social group of Tamil men who are perceived to be associated with the LTTE and a returned asylum seeker of Tamil ethnicity. 

4. On 4 February 2016, a registrar of the Court fixed the matter for hearing today as a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.  The registrar made directions providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  The applicant did file further affidavit evidence that purported to annex fresh material that was not before the Tribunal.  The Court refused to accept into evidence the material that had not been before the Tribunal.  The Court does not have jurisdiction to make fresh findings of fact in relation to the applicant’s claims and the material that the applicant wished to tender went to support his contention in support of the claims that he advanced. 

5. The material was accordingly irrelevant, given the confined jurisdiction of this Court, to the question of jurisdictional error by the Tribunal. At the commencement of the hearing, the Court explained to the applicant the nature of the r.44.12 show cause hearing and that it was to identify whether there was an arguable case. The Court explained that whether there was an arguable case depended on whether there was legal error shown in relation to the decision of the Tribunal. The Court explained that the legal error must be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.

6. The applicant confirmed that he understood the explanation of the nature of the hearing.  The applicant also had present with him in Court, a friend.  That friend endeavoured to address the Court, whilst the Court was delivering its ruling in relation to the evidence.  The Court indicated to the applicant and his friend that his friend would be heard, in addition to the applicant, at an appropriate stage. 

7. After identifying the affidavit evidence and marking the court book as an exhibit, the Court confirmed with the applicant that he had received the first respondent’s written submissions.  The applicant was then invited to put submissions in answer to the first respondent’s submissions and in support of his application.  The applicant identified that he contended the Tribunal had got wrong the assertion that his father had died and that he did not say that, and that the Tribunal had made an error in relation to his evidence concerning his brother.  The applicant sought to explain the circumstances in which he was taken away at a young age and explained that he was willing to go back if given a guarantee by the government as to his life.

8. The applicant also identified a problem with his leg and his ongoing medication that he needed in that regard.  The applicant said that because of his circumstances, he was affected by depression and had been taking medication and had had suicidal ideation.  The applicant contended that it was unsafe for him to return to Sri Lanka.  The Court also heard from the applicant’s friend.  Nothing said by the applicant’s friend identified any basis upon which there could be said to be any legal error by the Tribunal.  The applicant’s friend’s contentions all went to matters of compassion or the underlying merits. 

9. This Court does not have jurisdiction to re-visit the merits of the matter, nor does the Court have power to make a finding in relation to legal error on compassionate grounds.  The Court’s jurisdiction is confined to deliberation upon whether or not the Tribunal’s decision is affected by relevant legal error.  The solicitor for the first respondent then addressed the Court as to why the two grounds identified in the application failed to identify any arguable jurisdictional error.  The solicitor for the respondent also identified that the reference in the Tribunal’s findings to the contention that the applicant’s father had been killed, in para.37, arose from the submissions of the applicant provided after the hearing by the applicant’s migration representative.  Those submissions by the applicant’s migration agent dated 14 July 2015 at p.8 contended circumstances in which it was alleged the applicant’s father had passed away.

10. The Tribunal noted in para.37 that the applicant had, in fact, contended that his brother and parents were still living.  The solicitor for the first respondent submitted that nothing said by the applicant or the applicant’s friend identified any arguable legal error that would enliven this Court’s jurisdiction in relation to the Tribunal’s decision.  The applicant was heard by the Court in response to what was said by the solicitor for the first respondent.  Nothing said by the applicant or his friend identified any arguable jurisdictional error. 

11. The Court informed the applicant at the end of his submissions in reply that the Court did not have jurisdiction to make fresh findings of fact on the merits or a power to deal with a matter on compassionate grounds and the applicant was further invited to put any submissions in relation to whether there was any legal error by the Tribunal.  Nothing said by the applicant identified any arguable legal error. 

12. The grounds of the applicant are as follows:

    1. RRT decision is unsupported by any evidence.

    2. RRT did not fully deal with my problems.

13. This was a case where the Tribunal found the applicant was not truthful or was not a credible witness regarding his experiences in Sri Lanka and the reasons for his fears of persecution.  The Tribunal dealt with each of the applicant’s claims and relevantly found that it was not satisfied the applicant had a well-founded fear of persecution for a convention reason should he return to Sri Lanka now or in the reasonably foreseeable future.  The Tribunal also found that it was not satisfied that there was substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there would be a real risk that he would suffer harm which would amount to persecution.

14. It was in those circumstances the Tribunal found that the applicant did not meet the criteria under ss.36(2)(a) or 36(2)(aa) and affirmed the decision of the delegate. In relation to the first ground in the application, it is clear that the Tribunal engaged in a thorough analysis of the applicant’s evidence. The applicant was invited by a letter dated 9 June 2015 to attend a hearing on 7 July 2015, at which the applicant attended to give evidence and present arguments and was assisted by an interpreter, as well as being represented by his migration agent.

15. The generalised assertion that the Tribunal decision is unsupported by any evidence, is without substance and does not identify any arguable jurisdictional error.  Ground 1 fails to disclose any arguable jurisdictional error.  Ground 2 in relation to the assertion that “The RRT did not fully deal with my problems” is again, a generalised assertion that fails to identify any arguable jurisdictional error. I am satisfied that the application fails to disclose any arguable jurisdictional error. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules2001 and that the application should be dismissed.

16. Following the making of a costs orders, the applicant’s friend became abusive and violent, throwing pages towards to Court in a threatening manner onto the Court floor and aggressively insulting the Court.  The conduct of the applicant’s friend was entirely inappropriate although the Court refrained from having the person dealt with for contempt in the face of the Court. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2016