BBI15 v Minister for Immigration and Border Protection [2016] FCA 226

FEDERAL COURT OF AUSTRALIA

BBI15 v Minister for Immigration and Border Protection [2016] FCA 226 Appeal from: BBI15 v Minister for Immigration & Anor [2015] FCCA 3047

File number(s): NSD 1505 of 2015

Judge(s): JAGOT J

Date of judgment: 1 March 2016

Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12 Migration Act 1958 (Cth)

Cases cited: BBI15 v Minister for Immigration & Anor [2015] FCCA 3047 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Date of hearing: 1 March 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 10

Counsel for the Applicant: The Applicant appeared in person

Solicitor for the Respondents: Ms C Hillary of DLA Piper Australia

ORDERS NSD 1505 of 2015

BETWEEN: BBI15 Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: JAGOT J DATE OF ORDER: 1 MARCH 2016

THE COURT ORDERS THAT:

1. The application for leave to appeal dated 26 November 2015 be dismissed. 2. The applicant pay the first respondent's costs of the appeal as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J: 1 This is an application for leave to appeal against orders made by the Federal Circuit Court of Australia (the FCCA) dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the Rules). Leave to appeal is required because such a decision is interlocutory (see rule 44.12(2) of the Rules). 2 In order to obtain a grant of leave to appeal I have to be satisfied that the decision of the FCCA is attended by sufficient doubt such as to warrant reconsideration of the decision (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397). 3 On 25 May 2015, the Tribunal affirmed a decision of the Minister's delegate not to grant the applicant a protection visa under the Migration Act 1958 (Cth). The Tribunal did not accept the key claims made by the applicant and therefore decided that the applicant is not a person who is entitled to a protection visa. 4 The applicant applied to the FCCA to review the decision of the Tribunal, relying on three grounds, which are set out in [9] of the decision of the primary judge (BBI15 v Minister for Immigration & Anor [2015] FCCA 3047). Those grounds appeared as follows: 1. The second respondent failed to comply with the mandatory requirement under section 424A (read with 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information. Particular: The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act. 2. The Tribunal constructively failed to exercise its jurisdiction; Particular: The applicant provided membership certificate to the delegate to corroborate his claims. The delegate and Tribunal ultimately gave the document no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the document corroborated his claim. 3. The Tribunal's decision was unjust and made without taking in to account the full gravity of Applicant's circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Muslim extremists. 5 As set out in [8] of the decision of the primary judge, on 13 July 2015 a Registrar of the FCCA fixed the application for a show cause hearing and made directions giving the applicant an opportunity to file an amended application, affidavit evidence and submissions in support of the application. No documents were filed. 6 On 13 November 2015, the matter came before the primary judge for a show cause hearing. The primary judge dealt with each of the three grounds in the application and determined that none of those grounds could be sustained. In [15] of his decision, the primary judge noted that the applicant referred to a document, which the Tribunal had dealt with in paragraphs 29 and 30 of its reasons for decision. Paragraphs 29 and 30 of the Tribunal's reasons for decision appear at [4] of the primary judge's reasons. Those paragraphs are as follows: 29. The document claiming that he was the Vice President of Youth Wing of "Bharathiya Janatha Yava Murcha Nileshwar Municipal Committee since 2009, is dated 4 October 2013. On its face, the document is claiming that he held that position for about four years from 2009 and is not consistent with the applicant's claims that he held the position for 18 months in 2008-2009. He specifically said that after 2011 he was busy with work and his family said to look after his family and his work first. The Tribunal does not accept his explanation for the inconsistency between the document and his evidence, that is, that he continued to hold the position but was not active. 30. Further, on the letterhead of the document and in its body, "Janata" is mis-spelt. That is inconsistent with the document being genuine. It is also the same mis-spelling that appears in his statement that accompanied his visa application. The Tribunal accepts the applicant's evidence that he prepared his visa application without assistance. 7 At paragraph 31 of its reasons the Tribunal said that it gave the document no weight. In his reasons for decision at [15] the primary judge said that it was open to the Tribunal to give the document no weight and that nothing the applicant had said identified any arguable jurisdictional error. In his oral submissions before me today the applicant also raised this document, saying that the document was true despite any inconsistency about the date, and that his claims were also true. However, as the primary judge said, it was a matter for the Tribunal to assess the credibility of both the document referred to in paragraphs 29 and 30 of the Tribunal's reasons and the credibility of the applicant. 8 Apart from this, the grounds of the application for leave were two in number as follows: 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of the AAT. 9 The first ground of the application for leave to appeal cannot be accepted, having regard to the Tribunal's reasons, which assessed the material before it and reached the view that the applicant's claims were not credible. The second ground of the application also cannot be sustained. There is nothing in any of the material before me which suggests that the primary judge was in error in concluding that the application failed to disclose any arguable case. 10 For these reasons, the decision of the FCCA is not attended by any doubt and the application for leave to appeal must be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.