CFM15 v Minister for Immigration

[2016] FCCA 1149

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFM15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1149

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.424A, 424AA, 425

Applicant: CFM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2913 of 2015

Judgment of: Judge Driver

Hearing date: 12 May 2016

Delivered at: Sydney

Delivered on: 12 May 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2913 of 2015

CFM15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 24 September 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Sri Lanka and is Singhalese.  He claims to have left Sri Lanka fearing harm from a particular named politician.  He claims that his leg was broken by thugs engaged by the politician and that his best friend was killed by them.  The applicant claims he feels he will be killed by this politician as he was a supporter of the UNP political party, as was his father.  The applicant claims that he was involved in an aggressive election campaign prior to leaving Sri Lanka. 

2. The applicant arrived in Australia on 2 October 2013 on a tourist visa.  He had been interviewed by the Australian High Commission in Colombo on 21 August 2013.  He obtained the visa in order to participate in the Australian Masters Games.  The applicant applied for a protection visa on 11 October 2013.  A delegate of the Minister refused to grant the visa on 29 August 2014.  The applicant sought review before the Tribunal.  He provided a copy of the delegate’s decision, together with other documents. 

3. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing on 16 September 2015, which he did. At the hearing the applicant re-iterated his claims in more detail. The Tribunal expressed some credibility concerns about his claims. The Tribunal was concerned that the applicant’s claim to have been beaten and have his leg broken on 16 July 2013 was inconsistent with his coming to Australia shortly after to compete in the Masters Games. Among other things, the applicant had claimed in support of his visitor visa that he had won the long jump in Colombo at the Masters Games at a time shortly after the time when his leg was allegedly broken. Information derived from the applicant’s visitor visa application was put to him at the hearing pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act).

4. The applicant provided medical information that he was operated on at Concord Repatriation Hospital on 10 March 2014 for a tibial fracture.  The fracture was described as old.  He provided other material including articles about the named Sri Lankan politician who the applicant fears.  The Tribunal’s decision record records that it discussed with the applicant the fact that the Tribunal had been unable to locate any information relating to the alleged murder of the applicant’s friend.  At [28] of its decision record[1], the Tribunal records that the applicant provided three pieces of paper which his wife had found which allegedly related to the claimed murder.  The three pieces of paper were copied and placed on file.  The Tribunal records that none indicated the name of a person, or of any newspaper or a date.  The cut-outs are reproduced at CB 111. 

   [1] Court Book (CB) 127

5. The Tribunal rejected the applicant’s factual claims.  The Tribunal found that the applicant is an amateur athlete from Sri Lanka who came to Australia to represent his country and that he then fabricated a claim so as to remain here.  The Tribunal found that the pieces of paper presented by the applicant which named no person or any newspaper and gave no date did not corroborate the applicant’s claim concerning the death of his friend.  At [51] of its decision record, the Tribunal accepted that the applicant was operated on in Australia in March 2014 for a fractured tibia.  The Tribunal accepted that the facture was an old one.  The Tribunal accepted that the applicant had pins in his knee as a result of that procedure.  The Tribunal concluded that the injury was most probably caused by the applicant’s past athletic activity.  The Tribunal concluded that the applicant is not a person to whom Australia owes protection obligations, either under the Refugees or the Complementary Protection criteria. 

6. These proceedings began with a show cause application filed on 27 October 2015.  The applicant continues to rely upon that application.  There is one particularised ground in that application:

   1. The Tribunal denied me procedural fairness by not putting the adverse finding to me for comment in relation to the newspaper cutting I provided about the murder of my friend.

   Particulars

   a. At 49.4 of the Tribunal Decision, the Tribunal made the adverse finding but did not raise this issue with me.

7. The application is supported by a short affidavit filed with it, which I received.

8. I also have before me as evidence the court book filed on 25 January 2016.  Neither the applicant nor the Minister took up the opportunity afforded by orders made by a registrar on 3 December 2015 to file and serve pre-hearing submissions. 

9. I invited oral submissions from the applicant.  Initially, he declined to make submissions.  However, when I expressed my doubts about the ground in his application, he sought further details of those doubts from me.  I explained to the applicant that it did not appear to me that the ground advanced points to any jurisdictional error.  In his closing submissions, the applicant expressed his fears about returning to Sri Lanka.  He also said that he requires another operation to remove the pins from his knee, and he believes that operation needs to be undertaken in Australia.  That is something that could be raised with the Minister’s Department.  It is beyond the scope of these proceedings. 

10. The Minister submits that the Tribunal decision is free from any jurisdictional error.  I accept that submission.  The ground advanced by the applicant takes issue with dot point 4 at [49] of the Tribunal’s decision record[2]:

    I do not accept that anyone was killed on 16 July 2013.  The pieces of cut out provided by the applicant do not evidence this.  There is no name of a person, no name of a newspaper and no date.  I consider that if a person was killed on that day as claimed it would have been reported on, and the applicant in such circumstances should be able to provide evidence of this and substantiate the claim.  That he hasn’t indicates that no such event took place.

    [2] CB 130-131

11. The applicant contends that that finding should have been discussed with him, presumably, at the Tribunal hearing. Apart from the fact that the Tribunal could not discuss its conclusions prior to making them, there are a number of difficulties with the applicant’s proposition. The first is that the dispositive issue in this review was the applicant’s credibility. The applicant was on notice from the delegate’s decision that his general credibility was in issue. The applicant provided the delegate’s decision to the Tribunal and the Tribunal was, in my opinion, under no obligation, either under s.424A or s.425 of the Migration Act, to raise general issues of credibility with the applicant.

12. Further, the Tribunal is under no obligation to give a running commentary on its thought processes. In any event, the Tribunal’s decision record does disclose that the Tribunal raised with and discussed with the applicant its various credibility concerns. Of particular importance was the adverse information the Tribunal derived from the applicant’s visitor visa application. The Tribunal met its obligation to invite comment on that information pursuant to s.424AA of the Migration Act.

13. The cut-out pieces of paper presented by the applicant were, in my opinion, of marginal significance.  They were put forward in apparent support of the applicant’s claim concerning the death of his friend.  The Tribunal’s conclusion is that they did not prove that.  Indeed, it is hard to say that they proved anything.  The Tribunal was, in my opinion, under no obligation to discuss its conclusions on that material with the applicant prior to drawing those conclusions. 

14. I conclude that the application does not establish any arguable case of jurisdictional error by the Tribunal, neither is an arguable case of error apparent from my own reading of the material. 

15. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

16. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant made no submissions on costs.

17. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  16 May 2016