BYT16 v Minister for Immigration and Border Protection [2017] FCA 1003

FEDERAL COURT OF AUSTRALIA

BYT16 v Minister for Immigration and Border Protection [2017] FCA 1003 Appeal from: Application for leave to appeal: BYT16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 217

File number(s): NSD 258 of 2017

Judge(s): JAGOT J

Date of judgment: 18 August 2017

Catchwords: MIGRATION – application for leave to appeal – whether sufficient reasons to doubt decision of Federal Circuit Court – application dismissed

Legislation: Migration Act 1958 (Cth) s 36 Federal Circuit Court Rules 2001 (Cth) r 44.12

Date of hearing: 18 August 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 7

Counsel for the Applicant: The applicant appeared in person

Solicitor for the First Respondent: Leonard Leerdam of DLA Piper

ORDERS NSD 258 of 2017

BETWEEN: BYT16 Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: JAGOT J DATE OF ORDER: 18 AUGUST 2017

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed. 2. The applicant pay the first respondent's costs of the application for leave to 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 from orders of the Federal Circuit Court made on 10 February 2017 dismissing the applicant's application for review under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12 empowers the Federal Circuit Court to dismiss an application if satisfied that the application has not raised an arguable case for the relief claimed. By r 44.12(2) it is apparent that such a dismissal is an interlocutory order with the result that there is no right of appeal. There is only a right to seek leave to appeal. In order to obtain leave to appeal an applicant must show that there is sufficient doubt about the correctness of the judgment below and if the judgment is assumed to be wrong, that substantial injustice would be suffered by the applicant if leave to appeal were refused. 2 The only relevant issue in this matter is the existence of sufficient doubt. The application for leave to appeal asserts three grounds of error. The first of those grounds alleges that the Administrative Appeals Tribunal applied an incorrect test to the complementary protection visa provisions contained in s 36(2)(aa) of the Migration Act 1958 (Cth). I am not able to accept this assertion. It is not supported by the reasons of the Tribunal. 3 The second ground alleges that the Tribunal did not separately deal with factual issues and rejected media reports which the applicant says supported his claim that he would suffer harm if he returned to Bangladesh. It is not apparent to me that the Tribunal failed to deal with any relevant factual issue. Moreover, the Tribunal did deal with the documents submitted by the applicant, including a media report. The Tribunal was entitled to weigh the authenticity of that document and was not bound to make any further inquiries to attempt to validate the authenticity of it. 4 The third ground alleges that the Tribunal denied the applicant procedural fairness because it reached its opinion based on assumptions and possibilities and undermined the danger the applicant says he would face if compelled to return to Bangladesh as a returned asylum seeker. The Tribunal considered the applicant's claims and rejected them on the basis that they were fabricated, which the Tribunal was entitled to do. 5 In oral submissions today the applicant made three points. First, he said he did not think that relevant documents (namely a medical certificate and other documents relating to his political activities) were looked at. Second, he said he did not know if the documents had been considered and, if they had been, he received no reports about them. Third, he said he would like to know why the Tribunal did not believe his documents. 6 As noted, it is apparent from the Tribunal's reasons that the Tribunal did consider the documents submitted by the applicant, including a medical report. The Tribunal was not bound to accept the documents and was entitled to reach the conclusions it did. The Tribunal also considered the applicant's claims for complementary protection. Further, I am unable to see any error in the way in which the Federal Circuit Court dealt with the application before it. It is also apparent that the Federal Circuit Court had more material before it than is available on the present leave application. The primary judge seems to have considered all of that material, including an application for an adjournment by the applicant, a claim from the applicant that he had been sick at the time of the hearing before the Tribunal and unable to meaningfully participate, as well as five grounds for challenging the Tribunal's decision. Those grounds do not entirely accord with what is put in support of the leave application but it is apparent that the primary judge dealt with those grounds and concluded that none of them constituted an arguable jurisdictional error, those being conclusions with which I agree. 7 For these reasons, I am not satisfied that there is any, let alone sufficient, doubt about the decision of the Federal Circuit Court. It follows that the application for leave to appeal must be dismissed. There is no reason why I should not make a costs order. Accordingly, I order that the applicant pay the first respondent's costs of the application for leave to appeal as agreed or taxed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.