CYE16 v Minister for Immigration

[2018] FCCA 1467

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYE16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1467

Catchwords:
MIGRATION – Protection visa – application for review of decision by the Administrative Appeals Tribunal – where the applicant did not appear at the hearing – where the grounds of review are unparticularised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 65

Cases cited:

WZAVW v Minister for Immigration and Border Protection & Anor [2016] FCA 760

Applicant: CYE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2178 of 2016

Judgment of: Judge Kirton

Hearing date: 23 May 2018

Date of Last Submission: 23 May 2018

Delivered at: Melbourne

Delivered on: 23 May 2018

REPRESENTATION

No appearance for the Applicant

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Clayton Utz

ORDERS

1. The Application is dismissed.

2. The Applicant pay the First Respondent’s costs in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2178 of 2016

CYE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

1. This matter comes before the Court by way of an application filed on 7 October 2016 (“Application”) where the applicant applies for an order granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“Migration Act”).

2. The migration decision the applicant seeks orders in relation to is the decision of the Administrative Appeals Tribunal (“Tribunal”) made on 16 September 2016 (“Tribunal Decision”). The Tribunal Decision upheld a decision by the delegate of the First Respondent (“Delegate”) to refuse the applicant a protection visa under s.65 of the Migration Act.

3. The grounds of application set out in the application are generic and are unparticularised. 

4. The Application is supported by an affidavit filed on 7 October 2016 and affirmed on 5 October 2016 by the applicant (“Affidavit”).  The Affidavit annexes a copy of the Tribunal Decision as annexure TVN-1.

Background

1. The applicant is a national of Vietnam.  He arrived in Australia on 19 May 2013 by boat from Indonesia.  On 1 July 2014 he made an application for a protection visa.[1] On 10 December 2014, the applicant was granted a bridging visa.[2]

   [1] Court Book (“CB”) 128-129.

   [2] CB 128.

2. The applicant’s claims of harm were summarised by the Tribunal at paragraphs [20] and [21] of the Tribunal Decision. 

3. On 16 January 2015, the Delegate refused the application for a protection visa (“Delegate’s Decision”).[3]  On 21 January 2015, the applicant sought a review of the Delegate’s Decision before the then Refugee Review Tribunal.[4] 

   [3] CB 130-145.

   [4] CB 148-155.

4. The applicant attended a hearing before the Tribunal on 13 September 2016.[5]  The Tribunal did not accept that the applicant was a credible witness and it set out its reasons in paragraph [33] of the Tribunal Decision.  The Tribunal in paragraphs [54] to [57] of the Tribunal Decision did not accept that the applicant was at real risk of significant harm and found that he did not meet the refugee criteria or the complementary protection criteria.[6] 

   [5] CB 185-189.

   [6] CB 231-232.

5. On 16 September 2016, the Tribunal affirmed the Delegate’s Decision.[7]

   [7] CB 219-233.

Current Proceeding

1. In the Application filed in this Court on 7 October 2016, the applicant seeks:

   a)An order that the Tribunal decision be quashed;

   b)A writ of mandamus directed to the Tribunal requiring it to determine the applicant’s application according to law.

   c)A declaration of the Tribunal Decision was not made in accordance with law by reason of the grounds of this application and is void and of no force or effect.

   d)An injunction restraining the First Respondent, by himself or by his Department officers, delegates or agents from making the future decision or taking the other action the subject of the proceedings.

   e)Costs.

   f)Such further or other order or other relief the Court deems appropriate.

2. The applicant also specifies in the Application the following grounds of application:

   1.      The decision of the Tribunal:

   (a) is affected by error of law (“Ground (1)(a)”);  and

   (b) denied the applicant procedural fairness (“Ground (1)(b)”).

   2. I have made an application for legal assistance through Victoria Legal Aid and am waiting for a decision.

3. The Response to Application of the First Respondent filed on 19 October 2016 opposes the Application and states:

   1. The Administrative Appeals Tribunal (Tribunal) decision dated 16 September 2016 is not affected by jurisdictional error and is therefore a privative clause decision within the meaning of s.474(2) of the Migration Act 1958. The Tribunal’s decision therefore is:

   (a)   final and conclusive;

   (b) must not be challenged, appealed against, reviewed, quashed or called into question in any court;  and

   (c) is not subject to prohibition, mandamus, injunction declaration or certiorari  in any court on any account.

4. The First Respondent seeks the following orders:

   1. the application filed on 7 October 2016 be dismissed;  and

   2. the applicant by the first respondent’s costs.

5. By orders made on 29 March 2017, the applicant was to file and serve 28 days before the final hearing date:

   a)any amended application with proper particulars of the grounds of the application;

   b)supplementary court book, if any; and

   c)written submissions.

6. As at the date of the hearing of the application, the applicant had not filed any amended application or written submissions. 

Consideration

1. The First Respondent in written submissions filed on 9 May 2018 submits that neither of the two grounds of review specified in the Application have any merit in the absence of particulars.  It is submitted that there is simply no identification of the circumstances or issues that found the applicant’s complaint. 

2. In respect to Ground (1)(a), that the decision of the Tribunal is affected by an error of law, it is submitted that to assert an error of law is meaningless without identification of some kind of error.  Counsel for the First Respondent submits that this ground should therefore fail. 

3. In respect to Ground (1)(b), that the decision of the Tribunal denied the applicant procedural fairness, it is submitted that the applicant was given an opportunity to attend before the Tribunal and to present his claims.  It is submitted on behalf of the First Respondent that the Tribunal explored with the applicant, to the extent that it was able, the matters he had earlier set out in writing.  It is further submitted by counsel for the First Respondent that there is no material filed to suggest that he was not able to put his case.  Counsel for the First Respondent submits that there was no basis for the allegation of lack of procedural fairness and this ground should be dismissed. 

4. I agree with the submissions of the First Respondent.  In my opinion, the applicant has failed to particularise the nature of the jurisdictional error that is said to impugn the Tribunal’s decision.  I rely upon the following passage from the decision of Gilmour J in WZAVW v Minister for Immigration and Border Protection & Anor [2016] FCA 760 at [35] where his Honour said:

   … an unparticularised assertion of jurisdictional error is vague and meaningless.  It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is.  Failure to particularise the ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

5. As Ground (1)(a) and (1)(b) are unparticularised, I find that they are meaningless grounds of review.  It is impossible to say what matters of fact and law underpin the contention of the existence of jurisdictional error. 

6. As to the ground of application that states, “I have made an application for assistance through Victoria Legal Aid and am waiting for a decision,” I find that this is not a ground of judicial review but rather a statement of fact relating to the applicant’s status of legal representation.

7. Accordingly, I will dismiss the Application and order that the applicant pay the First Respondent’s costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Associate: 

Date:  6 June 2018