EMR17 v Minister for Immigration and Anor

[2018] FCCA 3968

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMR17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3968

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

Legislation:

Migration Act 1958 (Cth)

Applicant: EMR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2155 of 2017

Judgment of: Judge Riethmuller

Hearing date: 12 December 2018

Date of Last Submission: 12 December 2018

Delivered at: Melbourne

Delivered on: 12 December 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr Aleksov

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2155 of 2017

EMR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’).  The Tribunal affirmed a decision by a delegate of the Minister to refuse to grant the applicant a protection visa. 

2. The applicant came to Australia in 2013 to compete in the Masters Athletics Games representing the Sri Lankan Police Department.  The applicant said she was an inspector of police in the president’s Security Service Unit in Sri Lanka.

3. The applicant claimed that her selection to compete as an athlete in the Masters Games was the subject of some controversy in Sri Lanka.  The applicant said that an official wanted other people to travel to the games rather than herself but she refused to step aside.  The applicant said she then received death threats and was ill-treated by high-ranking police officers. 

4. The Tribunal accepted that there may have been irregularities in the selection process for those who would compete in the Masters Games but did not accept the level of threats that the applicant alleged.

5. The Tribunal noted that she was permitted to travel to the Taiwan Masters Games in 2012 and she was permitted to travel to Australia in 2013.  The Tribunal also considered the other evidence the applicant put forward and for a number of reasons set out in the decision concluded that the applicant was not a credible witness.  For example, evidence about threats having been received by the applicant’s brother when she does not, in fact, have a brother. 

6. The Tribunal therefore refused her application.

Grounds of Application

1. In her application for judicial review, the applicant sets out two grounds as follows:

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

   2. The Administrative Appeals Tribunal applied the wrong test.

2. Orders were made by Registrar Luxton in June 2017 for the applicant to file written submissions in support of her application.  Despite being an inspector of police, who one would expect to have some reasonable knowledge of legal process, the applicant did not comply with the Registrar’s order and did not file any written submissions.  At the hearing before me, the applicant was not able to identify anything that would indicate a failure to afford her procedural fairness by the Tribunal.

3. With respect to the second ground, the applicant was not able to identify any legal error.  The applicant argued that the Tribunal had failed to take into account a statement by a superintendent of police that she provided to them.  The applicant eventually found that statement in the Court Book at CB p.158 or at least the details of the identity of that witness.  However, it is apparent from [74] of the decision that the evidence of that witness was carefully considered by the Tribunal.

4. It cannot be said that the Tribunal failed to have regard to that witness’s evidence.  The fact that the Tribunal rejected that evidence based upon their serious concerns about the credibility of the applicant is not an error of law. 

5. The other submissions of the applicant were seeking, effectively, merits review.  It is not open to this Court to engage in merits review of a decision of the Tribunal. 

6. In the circumstances, I therefore dismiss the application.

Costs

1. The applicant has been unsuccessful in these proceedings.  Costs ordinarily follow the event.  There is no reason why the applicant should not pay the Minister’s costs of this case.  The Minister seeks costs in the sum of $5400.  That is less than the scale fee.  I find that is a reasonable sum in this case.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  25 February 2019