CKN15 v Minister for Immigration

[2016] FCCA 1527

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKN15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1527

Catchwords:
MIGRATION – Judicial review – show cause hearing.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 44.12

Applicant: CKN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2546 of 2015

Judgment of: Judge Harland

Hearing date: 15 June 2016

Date of Last Submission: 15 June 2016

Delivered at: Melbourne

Delivered on: 23 June 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Young

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 17 November 2015 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2546 of 2015

CKN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The matter is listed for a show cause hearing.  The applicant appeared in person and had the assistance of an interpreter by telephone.  The applicant indicated that he had received and had read to him the respondents’ submissions but that he had trouble understanding them.  In those circumstances, and without objection by Mr Young appearing for the Minister, Mr Young gave his submissions orally so that they could be interpreted in Court and gave those submissions first so that the applicant would have an understanding of the nature of the issues before the Court, before having to make submissions himself.

2. Before Mr Young spoke to his written submissions, I explained to the applicant the limited nature of judicial review proceedings before the Court and the fact that the Court does not have the power to rehear his case but is limited to considering whether or not the Tribunal made a jurisdictional error. 

3. Show cause hearings are governed by rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).  The matter was listed for a show cause hearing because it was not apparent from the application that the applicant had raised an arguable case for relief.

4. Summarising the applicant’s grounds, he makes three points:

   a)Firstly being that he asked that the Court to give him a hearing of his story without any pressure in the Court;

   b)Secondly, that the Administrative Appeals Tribunal officer had stated there was a lack of evidence in the issue and he wanted to correct that misinterpretation; and

   c)Thirdly, it was such a hectic situation (and with regard to this Mr Young inferred that the applicant meant leaving Malaysia). He did not have any evidence, being paperwork, attached, so he could only provide evidence in writing and verbal evidence.

5. The material before the Tribunal was brief.  The applicant made an application for a protection visa on 24 January 2015, and the details in his application are very brief.  He was invited to attend an interview with the delegate but did not do so.  The delegate refused his application for a protection visa, referring to his evidence in his application as being “vague, limited in detail and have not been substantiated”.  The applicant then applied for review to the Tribunal and was invited to attend, and did attend, a hearing before the Tribunal and had the assistance of a Malay interpreter.

6. The applicant’s claim is that he has a well-founded fear of persecution based on his political opinion.  He claimed to be a student at the University of Islam Antarabangsa.  He and his friend had started a riot at the university against the authorities and the university. After that he had been harassed by the university and that the police had come to his house looking for him. 

7. The Tribunal found that the applicant’s evidence was vague and at times contradictory, even about when he started his studies and what he was allegedly studying at university.

8. The Tribunal made adverse credibility findings against the applicant, and specifically was not satisfied that the applicant was admitted or enrolled at the university, that he and his friends started a riot at the university, and that either the police or the university called the applicant to speak to him or that the police wanted to investigate his actions.  The issue of credibility is the sole domain of the Tribunal and not this Court.  Given that the Tribunal did not accept his claims and found that he was not a witness of truth, the Tribunal was not satisfied that he had a well-grounded fear of persecution and also was not satisfied that he was a person with respect to whom Australia had protection obligations and affirmed the delegate’s decision to dismiss his application.

9. The grounds the applicant sets out in his application are inviting the Court to engage in a merit review, which it does not have the power to do.  After hearing from Mr Young, the applicant said he had nothing to say on his behalf.  I asked him if he understood that that meant that his application would be dismissed because there was no arguable case; he said he did.  I explained to him that I have read all of the material before coming into Court and that I was satisfied that the Tribunal did not commit a jurisdictional error and that I would be dismissing the application.

10. Due to having the interpreter by telephone, I indicated that I would give formal reasons in writing, and then turn to the issue of costs.

11. The respondent seeks costs in the sum of $3416 in accordance with the Federal Circuit Court scale of costs.  The applicant did not make submissions opposing the order but asked how long he would have to pay.  Mr Young informed the applicant that he would be able to speak to the department about how long and how to pay and that the department was flexible about those arrangements.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 23 June 2016