Esd18 v Minister for Immigration

[2020] FCCA 653

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESD18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 653

Catchwords:
PRACTICE AND PROCEDURE – Application in a case – applicant seeking to have set aside consent orders dismissing the proceedings – no basis for setting aside consent orders made out – application in a case dismissed. 

MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal failed to give proper consideration to information – whether the Tribunal took into account irrelevant considerations – no jurisdictional error made out.

Legislation:

Migration Act 1958 (Cth), ss.36, 438

Applicant: ESD18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2555 of 2018

Judgment of: Judge Street

Hearing date: 23 March 2020

Date of Last Submission: 23 March 2020

Delivered at: Sydney

Delivered on: 23 March 2020

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr M Gao, Australian Government Solicitor, via telephone

ORDERS

1. The application in a case filed on 14 February 2020 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $1,300.00.

DATE OF ORDER: 23 March 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2555 of 2018

ESD18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed on 14 February 2020 to set aside consent orders dismissing the proceedings made on 11 February 2019. 

2. The Court made orders on 14 February 2020 giving the applicant an opportunity to file evidence and submissions in support of the application in a case. No such documents have been filed. 

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing in relation to the application in a case. 

4. The applicant put submissions in relation to his substantive claims and why he disagreed with the reasons of the Administrative Appeals Tribunal (“the Tribunal”). The applicant did not explain any basis upon which the order made by consent through his legal practitioner was the subject of any ground to have the same set aside. 

5. There is a public interest in ensuring that consent orders dismissing proceedings are not lightly set aside. They may be set aside, for example, where there is proof that there had been operative fraud, mistake or other serious ground making it necessary in the interests of administration of justice to set aside the order.

6. Nothing said by the applicant identified any proper basis upon which this Court should set aside the consent orders made on 11 February 2019.  No evidence at all was adduced by the applicant, let alone any evidence of mistake or fraud.

7. The alleged merits of the underlying application are not a proper basis upon which to set aside the consent orders dismissing the proceedings. 

8. In any event, the underlying grounds lack sufficient merit to warrant an order setting aside the consent order, even if some proper ground had been made out by the applicant. 

9. The substantive orders sought a Constitutional writ in respect of a decision of the Tribunal made on 21 August 2018. 

10. The applicant was found to be a citizen of Lebanon and his claims were assessed against that country. 

11. The applicant travelled to Australia on a student visa on 15 January 2012.  It was not until 9 October 2012 that the applicant applied for protection. 

12. The applicant claimed to fear harm by reason of being of Alawi Muslim faith and to fear harm from Sunnis. 

13. The applicant also alleged that his family lived in a particular location that was predominantly Sunni. 

14. On 9 March 2016, a delegate of the first respondent found that the applicant failed to meet the criteria for the grant of a Protection visa. 

15. By letter dated 9 July 2018, the applicant was invited to attend a hearing before the Tribunal on 2 August 2018. The applicant appeared on that date, together with his migration representative. 

16. The Tribunal summarised the applicant’s claims and the background to the applicant’s migration history. 

17. The Tribunal referred to an invalid s 438 certificate under the Migration Act 1958 (Cth) (“the Act”) and treated the certificate as invalid and treated the documents in the usual way as if there was no certificate. No practical injustice arises to the applicant in relation to the existence of the invalid certificate or the documents the subject of the certificate in the present case.

18. The Tribunal found the applicant not to be a credible and truthful witness. 

19. The Tribunal referred to the applicant’s assertion as to the location of his family and preferred the contents of a Residential Statement that was put to the applicant. The Tribunal found that the applicant’s family reside in a predominantly Sunni suburb. 

20. In relation to the applicant’s claims of being an Alawi Muslim, the Tribunal found that the applicant’s members of his family identify as Sunnis, not as Alawi. 

21. The Tribunal did not accept that the applicant and his family or any member of his family relocated due to safety concerns. The Tribunal found that neither the applicant nor any member of his family had been subjected to any harm, let alone serious or significant harm, residing in their home village. The Tribunal did not accept that the applicant is an adherent or practicing member of the Alawi faith. The Tribunal did not accept that there is a real chance or real risk that the applicant would be subjected to serious or significant harm if he were to return to his home village or anywhere else in Lebanon. 

22. The Tribunal found that the applicant does not have a well-founded fear of persecution and found that the applicant did not meet the criteria in s 36(2)(a) of the Act or s 36(2)(aa) of the Act.

23. Consequently, the Tribunal affirmed the decision under review. 

The grounds

1. The grounds in the originating application are as follows:

   1.The Tribunal failed to take into account properly or failed to give sufficient weight the information provided in respect of the residence of the applicant mother in Jabal Mohsen adjacent to Tripoli and rejected evidence of google earth map provided to identify the family house. This issue was important to determine whether the applicant being Alawi suffered serious harm in his country of residence, therefore Tribunal made an error.

   PARTICULRS

   Paragraph 52 and 53

   2.The Tribunal error by considering irrelevant consideration to reach to the subject decision. The Tribunal failed to ask correct question which is whether the applicant is an Alawi and the evidence provided in support from the President of the Islamic Alawite Council is genuine.

PARTICULARS

Paragraph 56, 57 and 58

1. Ground 1 concerns the Tribunal’s findings in respect of where the applicant’s family resided and is nothing more than an invitation to engage in merits review. 

2. From the bar table, the applicant sought to provide further documents in relation to where his family resided. The Court did not accept those documents into evidence as the Court is not in a position to make fresh findings in respect of the applicant’s substantive claims. The documents were clearly irrelevant. 

3. The applicant put oral submissions disagreeing with the adverse findings by the Tribunal, which again invited merits review. 

4. The applicant also maintained that a particular document referred to in the Tribunal’s reasons is genuine. It is apparent from the Tribunal’s reasons that the Tribunal referred to a particular document dated 11 February 2016. The Tribunal preferred other evidence and found that the applicant and his family identify as Sunnis, not Alawis. The Tribunal took into account the letter dated 11 February 2016. The Tribunal was prepared to treat the letter as genuine but preferred other evidence. 

5. From the bar table, the applicant also referred to another document allegedly before the Tribunal from the Islamic Alawite Council. It is not necessary for the Tribunal to refer to every piece of evidence before the Tribunal. The Tribunal’s adverse findings in relation to the applicant’s family and where they reside and in relation to the applicant in respect of his religion and his family were open to the Tribunal and do not reflect any illogical, irrational or unreasonable finding. 

6. No arguable case of relevant error is identified by ground 2 of the application. 

7. The underlying merits of the applicant’s application are sufficiently lacking, by reason of which it is not necessary in the interests of the administration of justice to set aside the consent orders, even if other grounds had been made out to do so. Given the want of merits, there would be no utility in making such an order. 

8. For these reasons, the application in a case filed on 14 February 2020 is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 23 March 2020.

Associate: 

Date: 18 May 2020