FEDERAL COURT OF AUSTRALIA
CHY16 v Minister for Immigration and Border Protection [2017] FCA 1390
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant pay the first respondent’s costs as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BROMWICH J:
1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. His Honour dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal, affirming a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of a protection visa to the appellant.
2 The appellant is from Bangladesh. He arrived in Australia on a boat from Indonesia that was intercepted near Darwin on 28 March 2013. He was detained pending processing and was subsequently released on a bridging visa. On 19 June 2013, the appellant applied for a protection visa. His written claims were based on membership of the political party Jamaat-e-Islami and an asserted fear of harm, including being severely mistreated, beaten or killed, at the hands of members of the Awami League. This was said to have arisen because of a land dispute between his family and the Secretary of the local branch of the Awami League.
3 The appellant was interviewed by the delegate of the Minister on 20 August 2014. Written submissions were provided on his behalf by a registered migration agent from a law firm specialising in migration work, who addressed the merits of his claim.
4 The appellant’s claims of feared persecution and a fear of significant harm were rejected in their entirety by the delegate. On 9 December 2014, the delegate refused the grant of a protection visa to the appellant.
5 On 5 January 2015, the appellant applied for merits review of the delegate’s decision. He attended a Tribunal hearing that was initially scheduled on 16 June 2016, but was adjourned at his request until 20 June 2016, and then again to 19 July 2016. At the 19 July 2016 hearing, the appellant was represented by an experienced migration agent.
6 On 1 August 2016, the delegate’s decision was affirmed by the Tribunal. The Tribunal’s reasons reveal that the appellant’s claims were subjected to detailed consideration, with the Tribunal not accepting the appellant as a credible witness for reasons that were clearly spelt out. His various claims of feared persecution or otherwise of significant harm and other difficulties were therefore rejected under legislated Refugees Convention grounds and under the complementary protection regime.
7 By a show cause application dated 22 August 2016 and filed on behalf of the appellant by a solicitor, jurisdictional error was alleged by reason of, it was said, the wrong protection visa form being used, such that the jurisdiction of the Tribunal had never been engaged. It does not appear that this was raised before the Tribunal. On 17 May 2017, in an ex tempore decision, the primary judge rejected the “wrong form” argument, instead finding that an approved form had been used by the appellant to apply for a protection visa. His Honour cited numerous other decisions of the Federal Circuit Court in which the same conclusion had been reached. The same conclusion has also since been reached by Burley J in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 in a decision that seems unassailably correct.
8 While failure of the “wrong form” ground for finding jurisdictional error was the reason why the judicial review application failed before the primary judge, the Tribunal’s approach to the appellant’s substantive claims was also summarised by the primary judge in some detail. It was not suggested that there was any relevant error on the part of the Tribunal in the approach taken and no such error was found to exist by his Honour.
9 By a notice of appeal filed on 6 June 2017, the appellant listed the following three grounds of appeal, without further particulars:
(1) “Protection for legal refugee”;
(2) “Ignoring relevant material”; and
(3) “Relying on irrelevant material”.
10 The appellant did not supply any written submissions and was unable to advance any oral submissions beyond continuing to assert a fear of harm in Bangladesh.
11 The only error that has been raised at all since the Tribunal decision, namely the alleged use of the wrong protection visa form, has already been determined adversely to the appellant. He has not sought to challenge the primary judge’s conclusion and has not asserted or identified any other error on the part of his Honour.
12 I am unable discern any error in the approach, reasons or conclusions of his Honour, nor any jurisdictional error on the part of the Tribunal.
13 It follows that the appeal must be dismissed with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. |
