CLI15 v Minister for Immigration
[2016] FCCA 650
•29 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLI15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 650 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal considered the complementary protection provisions – whether the Tribunal failed to put adverse information to the applicant – whether the Tribunal was obliged to hold a second hearing – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA, 476 |
| Applicant: | CLI15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3184 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 29 March 2016 |
| Date of Last Submission: | 29 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2016 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the First Respondent: | Ms G Doyle Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $5800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3184 of 2015
| CLI15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 22 October 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant claimed to be a Tamil and was found by the Tribunal to be Sinhalese.
The applicant claims to have boarded a boat on July 2012 and arrived at Cocos Island on 13 August 2012, and was transferred to Christmas Island on 14 August 2014. The applicant applied for a protection visa on 1 July 2013 which the delegate refused on 24 March 2014. By letter, dated 7 September 2015, the applicant was informed that a different member now constituted the Tribunal, and by another letter of the same date the applicant was invited to attend a hearing to be held on 15 October 2015 to give evidence and present arguments. The applicant had earlier appeared before a differently constituted Tribunal on 13 March 2015.
The applicant appeared before the Tribunal on 15 October 2015 to give evidence and present arguments, and was assisted by an interpreter as well as being represented by his registered migration agent. The applicant claimed a fear if he returned to Sri Lanka from his brother-in-law to whom it was said he owed money. The applicant further asserted fear from the Sri Lankan authorities on the basis of his alleged Tamil ethnicity and because he was a failed asylum seeker.
The Tribunal accepted that the applicant borrowed money for the purpose of establishing a prawn farm business from his brother-in-law, and further accepted that the prawn farm had failed and that the applicant had made repayments from revenue generated by the business before it failed. However, the Tribunal found other aspects of the applicant’s evidence to be inconsistent and found the applicant’s claims lacking in credibility.
The Tribunal did not accept whether the applicant had ever been threatened by his brother-in-law, or that his brother-in-law would do so in the future. The Tribunal found the applicant’s evidence in relation to that fear not to be credible and provided reasons in support of that adverse finding that were open on the material before the Tribunal.
The Tribunal did not accept the applicant’s claim of being a Tamil for reasons given by the Tribunal that were open on the material before the Tribunal. The Tribunal also made adverse findings in relation to the applicant’s claimed fear by reason of being a failed asylum seeker, which adverse findings were open on the material before the Tribunal.
The grounds of the application are as follows:
Ground one
The RRT erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.
Ground two
The RRT made an error in law, with the error being a jurisdictional error, by not complying with section 424A and 424AA.
Particulars
The Respondent did not raise /or put to me in writing parts of the adverse decision for me to comment in writing.
Ground three
There is jurisdictional error as the RRT should have invited me for a second hearing to comment orally on the adverse information and without giving me the opportunity to invite me for a hearing involved denial of procedural fairness and legal unreasonableness in my circumstances.
I am willing to listen the RRT audio tapes to find any other legal errors and if I find it I will submit a transcript to this this court before a hearing date. I need a RRT audio tapes.
In relation to ground 1, it is apparent from para.5 and para.8 of the Tribunal’s reasons that it understood the law to be applied in relation to complementary protection, and it is apparent from paras.71, 72, 73 and 74 that the Tribunal considered the applicant’s claim in relation to complementary protection and made adverse findings in that regard. Accordingly, ground 1 fails to make out any jurisdictional error.
In relation to ground 2, no information was identified enlivening any obligation within s.424A or s.424AA. The making of adverse findings in relation to the applicant’s credibility does not, of itself, give rise to any obligation under s.424A or s.424AA. Those provisions only enliven an obligation upon the Tribunal to give clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that’s under review. There was no such information identified in the present case.
The applicant was found by the delegate not to be a credible witness, and the Tribunal’s reasons support it being apparent that whether the applicant was a Sinhalese was a live issue before the Tribunal. There is nothing in the Tribunal’s reasons that supports there being any information of a kind enlivening an obligation under ground 2. Ground 2, accordingly, fails to make out any jurisdictional error.
In relation to ground 3, the material in the court book supports the applicant being invited to attend a hearing, consistent with the statutory regime, and I am satisfied that the applicant had a genuine hearing before the Tribunal constituted by the member who conducted the hearing on 15 October 2015. There was no obligation upon the Tribunal in the circumstances of this case to hold any further hearing. The determination of the applicant’s application on material before the Tribunal was reasonable on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Ground 3 fails to make out any jurisdictional error.
The Court made orders on 21 October 2016, giving the applicant an opportunity to file and serve an amended application, affidavit evidence and submissions. No amended application or submissions were filed. The Court confirmed with the applicant the affidavit evidence upon which he relied, and that he had received the court book and the first respondent’s submissions. In response to the invitation to put submissions in answer to the first respondent’s submissions or in support of the application, the applicant stated that he will face threats if he returns. In response to the invitation as to whether there was anything further the applicant wished to say, the applicant said that was all he wanted to say.
The first respondent identified reliance upon the written submissions, the substance of which in relation to the three grounds failed to identify any jurisdictional error. The applicant was again invited as to whether there was anything he wished to say and did not put any further submission.
The reference to the applicant facing threats if he returns is, in substance, a reference to the merits of the matter which was for the Tribunal to determine. This Court only has jurisdiction to intervene if the Tribunal exceeded its statutory authority or denied the applicant procedural fairness. Nothing said by the applicant identified any jurisdictional error by the Tribunal.
For these reasons, the application is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 5 April 2016
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