Afc15 v Minister for Immigration

[2016] FCCA 982

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFC15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 982

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001(Cth)

Migration Act 1958 (Cth), s.476

Cases cited:
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
Shrestha v Minister for Immigration [2015] FCAFC 87
SZWBH v Minister for Immigration [2015] FCAFC 88

Applicant: AFC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 705 of 2015

Judgment of: Judge Driver

Hearing date: 27 April 2016

Delivered at: Sydney

Delivered on: 27 April 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Blake of Clayton Utz

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 705 of 2015

AFC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 2 March 2015.  The Tribunal confirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. 

2. Background facts concerning the applicant’s claim to protection, and the Tribunal’s decision on those claims, is set out in the Minister’s outline of legal submissions filed on 19 April 2016.

Background

1. The applicant is a citizen of Nepal.[1] On 10 July 2013, she arrived in Australia on a tourist visa.[2]

   [1] Court Book (CB) 4.

   [2] CB 5.

2. On 23 July 2013, the applicant applied for a protection visa.[3]

   [3] CB 3-42.

3. On 31 January 2014, the Minister’s Delegate refused to grant the applicant a protection visa.[4]

   [4] CB 79.

4. On 21 February 2014, the applicant applied to the Tribunal for review of the Delegate's decision.[5]

   [5] CB 103-108.

5. On 8 December 2014, the applicant attended a hearing before the Tribunal to give evidence and present arguments relating to the issues in her case.[6]

   [6] CB 132.

6. On 2 March 2015, the Tribunal affirmed the Delegate's decision refusing the protection visa.[7]

   [7] CB 131-156.

7. On 16 March 2015, the applicant commenced judicial review proceedings in the this Court. On 9 April 2015, the Court summarily dismissed the applicant's application at the first court date.

8. On 22 April 2015, the applicant filed an application for extension of time and leave to appeal in the Federal Court. On 12 August 2015, Griffiths J made orders by consent remitting the matter to this Court, differently constituted, on the basis that the Court erred in summarily dismissing the proceedings at the first court date without prior notice to the applicant, in the manner and circumstances identified in Shrestha v Minister for Immigration[8] and SZWBH v Minister for Immigration.[9] 

   [8] [2015] FCAFC 87.

   [9] [2015] FCAFC 88.

The applicant's claims

1. The applicant's claims in support of her claim of persecution were set out in her statement of 19 July 2013,[10] her protection visa application[11] and a letter to the Tribunal dated 18 February 2016.[12] The applicant supplemented her written claims orally before the Delegate[13] and the Tribunal.[14]

   [10] CB 1-2.

   [11] CB 9-12.

   [12] CB 102.

   [13] CB 86-87.

   [14] CB 135.

2. In short, the applicant claims to fear harm from the "Madhesi" (the original inhabitants of the “Terai” being the lowlands region in the South and South East of Nepal) and Madhesi political parties, namely the Janatantrik Terai Mukti Morch (JTMM). The applicant alleges that she is targeted for harm on the basis of:

   a)her race and ethnicity as a Pahade (hill people);[15]

   b)political opinion, as she is a member of the Nepali Congress.[16]

   [15] CB 4.

   [16] CB 9.

3. The Madhesi have not shared in political power in Nepal and claim exclusion and domination by the Pahade population who have government jobs, such as the applicant.

Current proceedings

1. These proceedings began with a show cause application filed on 16 March 2015.  The applicant continues to rely upon that application.  There are two grounds in the application which are reproduced at [14] of the Minister’s submissions:

   1.DIBP failed to take my personal circumstances when Minister Delegate made his decision.

   2.RRT decision was based on wrong assumption.

2. The application is supported by an affidavit filed with it which repeats those grounds.  I received the affidavit as a submission. 

3. A registrar made procedural orders on 24 September 2015 to prepare the case for a hearing today.  The applicant was given an opportunity in those orders to file and serve an amended application and additional evidence and also further submissions.  She has not taken up those opportunities.

4. The Minister, in accordance with the registrar’s orders, has filed a court book which I have before me as evidence. 

5. I invited oral submissions from the applicant today.  I explained to her that I was unable to review the decision of the Minister’s delegate and my jurisdiction in relation to the Tribunal’s decision was limited to legal issues going to the Tribunal’s jurisdiction. 

6. The applicant was unable to make any legal submissions.  She maintains that her claims for protection were based on the truth.  However, that goes to the merits of the Tribunal’s decision which are beyond the scope of this proceeding. 

7. The Minister’s submissions deal with the grounds in the application.  I agree with those submissions.

Ground One

1. Ground One is based upon a misconception as to the review jurisdiction of this Court in migration decisions. The decision of a Delegate of the Minister is a "primary decision" which by reason of s.476(2)(a) of the Migration Act 1958 (Cth) (Migration Act), this Court has no jurisdiction to review.

2. Noting that the applicant is unrepresented, the Minister’s solicitor and I also considered whether, notwithstanding its infelicitous drafting, Ground One is intended to be directed to the Tribunal's conduct or decision. Even on this generous interpretation, Ground One is devoid of merit.

3. The Tribunal's decision is rich in detail and contains a comprehensive assessment of the applicant's claims. Patently, whatever the circumstances the applicant claims, which is not made clear in the judicial review application or the submission proffered by the applicant in support of that application, her circumstances were taken into account.[17] Indeed at [20] of its decision, the Tribunal set out in detail every document to which it had regard.

   [17] CB 135-138.

4. Ground One could not be understood as anything other than a plea to the merits and, if so, it must fail.

Ground Two

1. Like Ground One, Ground Two is an un-particularised assertion of error. It would fail on that basis alone.

2. Contrary to the pleaded ground, the Tribunal's decision was not based on "assumptions". The Tribunal engaged in a process of indicative reasoning and made findings that were open to it on the available evidence.  The rejection of the applicant’s claims and evidence was due to the fact that they were not credible and she was not believed.  An assessment of credibility is, to use an oft quoted expression, a matter par excellence for the Tribunal.[18]

   [18] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. A credibility finding is sound if it was "open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility": see Kopalapillai v Minister for Immigration (1998) 86 FCR 547.

3. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001(Cth) (Federal Circuit Court Rules).

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.  The applicant was uncertain what she should say in relation to costs.  I explained the basis for the assessment of costs and the consequences of making an order in a fixed amount.  The applicant did not make any further submissions.

5. I will order the applicant to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 May 2016