SZVSY v Minister for Immigration

[2016] FCCA 934

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVSY v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 934

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause hearing – whether Tribunal erred in finding no well-founded fear of prosecution – no arguable jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12

Applicant: SZVSY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3308 of 2014

Judgment of: Judge Street

Hearing date: 22 April 2016

Date of Last Submission: 22 April 2016

Delivered at: Sydney

Delivered on: 22 April 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. The name of the second respondent is changed to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

3. The applicant pay the costs of the first respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3308 of 2014

SZVSY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. 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 3 November 2014 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Lebanon and his claims were assessed against that country.

2. The applicant had travelled to Australia in January 1999, January 2001, September 2001 and February 2008 until his last arrival on 10 March 2013 on a tourist visa.  The applicant applied for protection on 16 May 2013.  The applicant claimed to fear harm if he returned to Lebanon because he would be targeted by Hezbollah.  In this regard, the applicant said his wife’s family were in the South Lebanese Army and Hezbollah believe that he is in communication with his wife’s brother-in-law, who now lives in Israel.  The applicant said his wife’s brother was also a member of the Southern Lebanese Army and was granted asylum in Germany.  The applicant said during the war his house was raided and he was interrogated.  The applicant said his business and home were damaged and that he did not receive compensation.  The applicant says that in May 2009 his car was firebombed.  The applicant says that in February 2011 his brother-in-law was arrested.  The applicant says whenever he leaves town he is questioned on his return.

3. The Tribunal made adverse credit findings in relation to the applicant’s claims and relevantly found the applicant has fabricated his claims to achieve an immigration outcome.

4. On 17 February 2015, a Judge of the Court fixed the matter for hearing and granted the applicant an opportunity to file an amended application, submissions and affidavit evidence.  An affidavit has been filed annexing the transcript and no other documents have been filed by the applicant.

5. The application identifies the following grounds:

   1. Contrary to the comment of the Tribunal my claims are genuine and the Member misunderstood my evidence and failed to see my well founded fear of persecution.

   2. I reserve my right to lodge the transcript which will demonstrate how the Tribunal misapplied the law and mistreated me.

6. The matter was listed today for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.  At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing.  The Court explained to the applicant that the Court had to be satisfied that the application disclosed an arguable case.  The Court explained that an arguable case involved a legal error in the decision making by the Tribunal.  The Court explained that the type of legal error that needed to be arguable was that the Tribunal had either exceeded its statutory powers or denied the applicant procedural fairness.  The Court explained to the applicant that if satisfied there was an arguable case the matter would be fixed for further hearing and, if not satisfied there is an arguable case, the application would be dismissed. The Court explained that it would identify next the evidence and hear from the applicant and then from the solicitor for the first respondent and then hear from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

7. From the bar table, the applicant explained his concerns about returning to Lebanon and the incident involving his car, his concern in relation to his children and the harassment that he had faced.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error in relation to ground 1 of the application.  It was for the Tribunal to determine the credibility of the applicant in relation to his claims.  The adverse findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.

8. There is nothing in the Tribunal’s reasons to suggest the Tribunal misunderstood the applicant’s evidence and there is nothing in the transcript to suggest that the Tribunal misunderstood the applicant’s evidence.  It is clear from the transcript and the annexure to the decision that the Tribunal correctly applied the law in relation to determining whether the applicant had a well-founded fear of persecution or whether the applicant was entitled to complementary protection.  Ground 1 fails to disclose any arguable jurisdictional error.

9. In relation to ground 2, there is nothing in the transcript to suggest that the applicant was mistreated and nothing in the transcript to support the contention that the Tribunal misapplied the law. The application fails to identify any arguable jurisdictional error. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  4 May 2016