BKU16 v Minister for Immigration and Border Protection [2017] FCA 1402

FEDERAL COURT OF AUSTRALIA

Appeal from:	BKU16 v Minister for Immigration & Anor [2017] FCCA 1195

File number(s):	NSD 748 of 2017

Judge(s):	JAGOT J

Date of judgment:	24 November 2017

Catchwords:	MIGRATION – appeal against orders of the Federal Circuit Court dismissing the appellant’s application for review of decision of the Administrative Appeals Tribunal – whether the Federal Circuit Court failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the appellant’s claims – whether the Tribunal misconstrued the risk and fear of significant harm to the appellant – Federal Circuit Court correctly reviewed the Tribunal’s decision – appeal dismissed

Legislation:	Migration Act 1958 (Cth) s 36(2A)

Cases cited:	BKU16 v Minister for Immigration & Anor [2017] FCCA 1195

Date of hearing:	24 November 2017

Registry:	New South Wales

Division:	General Division

National Practice Area:	Administrative and Constitutional Law and Human Rights

Category:	Catchwords

Number of paragraphs:	8

Counsel for the Appellant:	The Appellant appeared in person

Counsel for the First Respondent:	G Johnson

Solicitor for the First Respondent:	Australian Government Solicitor

ORDERS

		NSD 748 of 2017

BETWEEN:	BKU16 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	24 NOVEMBER 2017

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant 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 appeal against an order of the Federal Circuit Court made on 1 May 2017 dismissing the appellant’s application for review of a decision of the Administrative Appeals Tribunal. On 17 May 2016, the Tribunal affirmed a decision of a delegate of the Minister for Immigration not to grant the appellant a protection visa. The appellant, who is a citizen of India, claimed a protection visa on the basis that he feared returning to India because he had developed a relationship with a woman from a different caste, in circumstances where he is Hindu and she is a Sikh of the Jat caste. He said that he feared returning to India because of the risk from her family and the police, which is why he decided to leave India.

2 The Tribunal disbelieved the appellant. It decided that he was not a credible witness and did not accept that he was involved in a relationship with a Sikh girl from the Jat caste. The Tribunal did not accept any of the appellant’s claims about what occurred in India, why he left that country, or why he claimed to fear returning to India.

3 The appellant applied to the Federal Circuit Court for review of the Tribunal’s decision. The Federal Circuit Court noted that although the appellant appeared at the hearing, he did not rely on any evidence and made no submissions (BKU16 v Minister for Immigration & Anor [2017] FCCA 1195 at [15]).

4 The appellant’s review application in the Federal Circuit Court contained five grounds. The first was that the Tribunal misconstrued the risk and fear of significant harm to the appellant if he returned to India. The second was that the Tribunal denied the appellant procedural fairness in various ways. The third was that the Tribunal failed to investigate his claim. The fourth was that the Tribunal failed to appropriately deal with his mental health condition. The fifth was that the Tribunal’s reasoning was irrational and illogical. The primary judge considered the Tribunal’s reasons and rejected each of these grounds.

5 In the appeal to this Court, the notice of appeal identifies two grounds. The first is that the Federal Circuit Court failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the appellant’s claims. The second is that the Tribunal misconstrued the risk and fear of significant harm to the appellant within the meaning of s 36(2A) of the Migration Act 1958 (Cth).

6 I have reviewed the reasons of the Tribunal, as well as the reasons of the Federal Circuit Court. It is apparent that the Tribunal did not accept the appellant’s evidence as truthful. As a result, it did not accept the appellant’s claims to fear harm should he return to India. It is also apparent that the Federal Circuit Court correctly reviewed the decision of the Tribunal and rejected the appellant’s claims before it.

7 The appellant’s submissions today do not identify any possible error of law, but have been confined to his wish to remain in Australia where he has lived for more than eight years and where he says he now feels happy and comfortable. None of these matters can establish a jurisdictional error of the kind required to support the appeal. It follows that the appeal must be dismissed.

8 As a result, I make the following orders:

(1) The appeal be dismissed; and

(2) The appellant pay the first respondent’s costs of the appeal as agreed or taxed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated: 24 November 2017

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