BZC15 v Minister for Immigration and Border Protection [2016] FCA 1401

FEDERAL COURT OF AUSTRALIA

BZC15 v Minister for Immigration and Border Protection [2016] FCA 1401 Appeal from: BZC15 v Minister for Immigration & Border Protection & Anor [2016] FCCA 1448

File number: VID 630 of 2016

Judge: NORTH J

Date of judgment: 16 November 2016

Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1AA)(b)(ii)

Date of hearing: 16 November 2016

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 21

Counsel for the Appellant: The Appellant appeared in person.

Counsel for the Respondents: Mr B Petrie

Solicitor for the Respondents: Clayton Utz

ORDERS VID 630 of 2016

BETWEEN: BZC15 Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATION APPEALS TRIBUNAL Second Respondent

JUDGE: NORTH J DATE OF ORDER: 15 NOVEMBER 2016

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH J: 1 Before the Court is an appeal from a judgment of the Federal Circuit Court delivered on 26 May 2016. The Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal made on 4 September 2015. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the appellant a protection visa. 2 The appellant is a national of India born in 1983. He came to Australia in September 2013 on an entertainment visa. Shortly thereafter, he made his protection visa application. 3 In the hearing before the Tribunal the appellant claimed that he worked for a company which was shooting footage of a musical event (the film company). The appellant says that he was involved in setting up the stage for the event and noticed that there was a crack in the metal pillar supporting the stage area. In due course the pillar fell and two people were killed. The appellant said that he would report the incident to the police and he claimed that the owner had tried to stop him. He said that the owner was influential and would manipulate the police. He feared that he would be harmed by the company owner if he returned to India. The Tribunal examined the facts and found that the appellant's claim was not credible. 4 Between [100] and [105] in the Tribunal's decision, the Tribunal outlined a number of inconsistencies between the account given by the appellant at the hearing and the claim made in the protection visa application. The inconsistencies were major inconsistencies and went to the heart of the claim. 5 For instance, the Tribunal noted that at the hearing he claimed to be employed by the film company but did not list that company as an employer in his employment history in his visa application form. The Tribunal addressed this inconsistency at [100] as follows: …The applicant's explanation regarding the omission is not convincing. He stated he was afraid to put it on his application because it may identify him. This is not a plausible excuse given he was located in Australia at the time of lodgement and these details are directly relevant to his claims. 6 Then the Tribunal noted that at the hearing, the appellant stated that two people were killed in the accident and no one was injured whereas in his visa application he said one person was injured and two were killed. The Tribunal concluded at [101]: The Tribunal considers it implausible that such a serious event could occur and the applicant be confused as to how many victims there were. 7 The Tribunal then noted at [102] that in his visa application the appellant said that he had withdrawn a report to the police because of fears of retribution by the company owner, but in the hearing he said that he had not reported the incident to the police. 8 Further, the Tribunal noted that the appellant said, in his visa application, that he had been attacked on numerous occasions. However, at the hearing he said he was never attacked but only threatened. The Tribunal concluded at [103]: … the applicant has not provided a reliable, logical or credible account of events given the inconsistencies in his claims and therefore does not accept that the applicant was ever attacked or threatened. 9 The Tribunal considered other, similar inconsistencies and recorded at [108] that it had raised these issues with the appellant during the hearing but concluded at [108]: … the applicant is not a credible witness based on the inconsistent evidence provided to the department, and at hearing and the applicant's inability to provide a convincing explanation. 10 The Tribunal then considered whether or not the appellant met the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act), which requires that the appellant establish that he was in danger of suffering significant harm in order to attract the complementary protection provision. The Tribunal concluded at [111]: Having concluded that the applicant does not meet the refugee criterion in s. 36(2)(a), the Tribunal has considered the alternative criterion in s. 36(2)(aa). For the reasons above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(aa). 11 On 28 September 2015 the appellant filed an application for review of the Tribunal decision in the Federal Circuit Court. The ground of the review focused on the claim for complementary protection under s 36(2)(aa) of the Act. The appellant said that the Tribunal was wrong not to find that he was at risk of torture if returned to India. 12 When the application came on for hearing before the Federal Circuit Court, the appellant sought an adjournment in order to obtain legal advice. The Federal Circuit Court rejected the application for an adjournment for two reasons. First, it was unlikely that the appellant would be in a position to obtain legal advice within the period of the adjournment sought. Second, that, in any event, the application had no merit. 13 On this latter aspect, the Federal Circuit Court said at [13]: As can be seen, the applicant focused in his application to this court on the complementary protection criterion. The Tribunal set out in two paragraphs at the commencement of its reasons for decision an accurate but brief summary of the complementary protection provisions. It seems to me that in the context of this case, the Tribunal dealt adequately with the question of complementary protection. The Tribunal rejected the applicant's claims in a wholesale fashion on the grounds of credibility. Having done so, nothing remained for the complementary protection provisions to operate on. In these circumstances it was open to the Tribunal to conclude, as it did, that the applicant did not face a real risk of significant harm if he returned to India. 14 On 14 June 2016 the appellant filed a notice of appeal in this Court. The grounds stated in the notice of appeal were as follows: 1. The Federal Circuit Court did not give me time to get legal representation by refusing the adjournment that I requested. 2. The Federal Circuit Court wrongly agreed with the Tribunal without assessing my arguments. The Tribunal had disagreed with everything I said including my employment with [the film company], the accident that I witnessed and the attacks on me and threats to prevent me from giving evidence about the accident. 3. The Tribunal was very rigid in applying the test of "real risk of significant harm" and disregarded my claims. 4. The Tribunal did not consider the difficulty I would have to obtain a police report of the accident under the circumstances described in my claims and took it as a negative to my case. 15 The appellant appeared at the hearing of the appeal and made a short oral submission. He complained that the Federal Circuit Court should have adjourned the matter because he was ill at the time of the hearing. 16 The appellant also complained that the Tribunal was wrong in not believing the evidence he gave. The oral submissions thus reflected the four grounds of appeal, in general terms. 17 The challenge to the refusal of the Federal Circuit Court to adjourn is foreclosed by s 24 (1AA)(b)(ii) of the Federal Court of Australia Act 1976 (Cth) which provides that no appeal may be brought against a decision of the Federal Circuit Court, in these circumstances, to refuse an adjournment. 18 Furthermore, the second basis on which the Federal Circuit Court refused the adjournment was clearly correct and provided an independent basis for the judgment. Having rejected the claims made by the appellant on the basis that his evidence was not credible, the Tribunal logically could not find that there was merit in his complementary protection application. 19 The challenge to the fact-finding made in grounds 2 to 4 in the appeal to this Court is a different argument than that placed before the Federal Circuit Court. It is directed not to the complementary protection claim but to all claims made by the appellant. The appellant therefore requires leave to advance those grounds before this Court because they were not raised before the Federal Circuit Court. The appellant would be entitled to such leave if he could establish that it was expedient in the interests of justice that the argument now be raised. 20 It is not, however, expedient in the interests of justice to allow that course because the challenge which the appellant seeks to make is bound to fail. He challenges the findings of fact made by the Tribunal. The making of those findings was the function of the Tribunal. This Court does not have jurisdiction to entertain a review of the merits of those fact-findings. Consequently, grounds 2 to 4 of appeal, even if leave were granted, cannot be made out. 21 It follows that the appeal must be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.