EMI17 v Minister for Immigration and Anor

[2018] FCCA 3975

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMI17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3975

Catchwords:

MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), Pt.7AA

Applicant: EMI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2140 of 2017

Judgment of: Judge Riethmuller

Hearing date: 11 December 2018

Date of Last Submission: 11 December 2018

Delivered at: Melbourne

Delivered on: 11 December 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2140 of 2017

EMI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’).  The IAA affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. 

The Applicant’s Claims

1. The applicant came to Australia from Sri Lanka.  The applicant said that he had lived in the north central province where he worked as a tailor.  The applicant said that he had some involvement with politics by supporting a particular candidate.  As a result of that the applicant said that he received threats from one of the other candidates. 

2. The applicant said that he then went to Colombo while his family moved to a relative’s house.  The applicant said that in 2011 his house was burned and his wife went to the police, but the police would not take any action.  The applicant said that in 2012 he obtained a passport and tried to travel to Cyprus, but he could not leave because the opposition supporters operated the car park at the airport.  The applicant said that in 2012 two of his friends were killed. 

3. The IAA concluded that the applicant was a low-level SLFP supporter, although the IAA was not satisfied that the applicant knew the politician personally. 

The IAA’s Findings

1. The IAA did not believe the applicant’s evidence about the death threats.  The IAA did accept that two of his friends were murdered, but was not satisfied that the other politician’s supporters were responsible.  The IAA did not accept that the politician’s supporters influenced the airport enough to stop the applicant leaving.  The IAA was not satisfied that the applicant would face a real chance of harm if he were to return to Sri Lanka.  The IAA also considered whether the applicant would face harm as a result of being an illegal departee, but found that he would not face a real chance of serious harm in this regard. 

Grounds of Application

1. The applicant’s application sets out two grounds that are in very general terms.  Those grounds are as follows:

   1. The Administrative Appeals Tribunal did not afford me procedural fairness

   2. The Administrative Appeals Tribunal applied the wrong legal test.

2. The grounds refer to the Administrative Appeals Tribunal even though the IAA was the decision-maker in this case.  I have proceeded to consider the grounds on the basis that they refer to the IAA 

Ground 1

1. The first ground alleges that the IAA did not afford the applicant procedural fairness.  The IAA is required to review decisions without interviewing an applicant. 

2. Whilst in some circumstances the IAA can get new information, generally it reviews decisions on the information before the delegate. There is nothing to suggest that the IAA did not comply with the requirements of Pt.7AA of the Migration Act 1958 (Cth). In his oral submissions the applicant explained this ground as relating to him not receiving proper consideration from the decision-maker. When I asked the applicant for an example he said that he was not in a position to go back to Sri Lanka and referred to the death threats that he said were made to him.

3. This issue was considered by the IAA and discussed at [17] to [19] of their decision.  The applicant then submitted that he was basically unhappy he did not get a positive decision.  It is not open to this Court to review decisions on their merits.  The Court may only review for jurisdictional error, that is, putting it loosely, some error in the legal test or error in the procedure or some illogicality in the reasoning in the decision.  No errors of this type appear in this decision. 

4. I therefore refuse the first ground. 

Ground 2

1. The second ground alleges that the IAA applied the wrong legal test.  No submissions were made about this ground.  It appears clear that the IAA considered the test for a protection visa and the complementary protection obligations in the decision.  I do not find that this ground has been made out. 

2. In the circumstances, I must dismiss the application.

Costs

1. In this matter the Minister has been entirely successful.  The Minister should receive his costs.  The amount of costs sought is less than the court scale.  I am satisfied that the amount sought is reasonable and order accordingly.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  25 February 2019