CLG17 v Minister for Immigration

[2018] FCCA 695

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLG17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 695

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – Procedural matters – Applications – Time for lodging and extension – long delay – arguable grounds – no prejudice to respondent.

Applicant: CLG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 525 of 2017

Judgment of: Judge Jarrett

Hearing date: 16 March 2018

Date of Last Submission: 16 March 2018

Delivered at: Brisbane

Delivered on: 16 March 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed 6 June, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 525 of 2017

CLG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal.  The Tribunal’s decision affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Protection (Class XA) visa. 

2. The applicant is a citizen of Nepal.  He arrived in Australia on 17 June, 2010.  At that time, he held a student visa.  On 11 July, 2014 he made an application for a protection visa.  In his protection visa application he claimed to fear harm from the Communist Party of Nepal and the All Nepal Free Student Union (Revolutionary) because of his political opinion.

3. He claimed that he had been threatened by Maoist activists and so escaped by taking another person’s passport to come to Australia and save his life.  He claimed that he supported a student political party called the All Nepal National Free Student Union, which was influenced by the Communist Party of Nepal (Unified Marxist-Leninist) organisation and he also advocated for them. 

4. In March, 2005 there was a meeting of the All Nepal National Free Student Union organisation and then soon after that, he received a warning letter which stated that he had to quit the All Nepal National Free Student Union.  He was required by the letter apparently to join the Maoist.  Two weeks later he was again told to quit the party by some other people. 

5. On 15 July, 2015 10 people came and took him to their district leaders to convince him to quit the All Nepal National Free Student Union and to support the Maoists.  He says that he was threatened, severely beaten and left on the side of the road. 

6. On 28 January, 2015 a delegate of the first respondent refused to grant the applicant a protection visa.  He sought review by the Administrative Appeals Tribunal of that decision.

7. The Tribunal could not make a decision on his application in his favour on the material before it and so it invited him to a hearing to give evidence and present arguments.  The hearing took place on 12 January, 2016.  The applicant provided some more evidence to the Tribunal at that hearing and made some submissions. 

8. On 15 May, however, the Tribunal affirmed the delegate’s decision.  The Tribunal determined the application against the applicant on a credibility finding.  It determined that he had fabricated all of his claims in order to be granted the visa.

9. The Tribunal did not accept that the applicant was a member of the organisations of which he claimed to be a member or that he was ever assaulted.  The Tribunal did not accept that the applicant was ever threatened, as he claimed he had been, or that his family had ever been threatened.  The Tribunal’s reasons set out clearly, in my view, why it reached those findings about his credibility.  The Tribunal’s reasons are transparent in that regard. 

10. The Tribunal referred to country information and determined that the documents that the applicant relied upon were unreliable.  It explained why it gave no weight to any of the documents that the applicant relied upon in support of his application.

11. The Tribunal affirmed the decision under review. 

12. In this application, the applicant says in his application for review:

    I’m not happy with the decision.  I summon all original document to them and I don’t allowed to working here since 2010.  Just I want to save my life so I stay here really.  I not make money here.  I spend my family money in here to save my life and how they can say I’m safe in Nepal, what’s the reason I want to stay here.  If I make money.  Okay.  I won’t stay here for money, but I can’t work and spend my family money, so I’m not happy for decision.

13. As the first respondent points out in the very useful written submissions delivered on his behalf, the application for review does not raise a recognisable ground of review.  There is no suggestion of jurisdictional error on the part of the Tribunal, but rather, the purported grounds express dissatisfaction with the Tribunal’s decision and its factual findings.  It is, as the first respondent submits, an impermissible attempt to engage this Court in a merits review.  I have already indicated that the Tribunal’s explanation for its refusal to accept the applicant’s credit was transparently set out in its reasons.

14. I have had regard to those reasons, but cannot see within them any suggestion that the Tribunal has committed any jurisdictional error in any way when it determined the application that was before it.  There is, it seems to me, no want of procedural fairness and no failure by the Tribunal to carry out its statutory task.  It seems, in my view, to have carried out that task in a wholly unexceptional way. 

15. In those circumstances, the application for review must be dismissed with costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  4 April 2018