BUX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1387 (21 June 2021)

Last Updated: 23 September 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1387

File number(s):	SYG 1277 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	21 June 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal –application for a Protection Visa – whether the Tribunal was unreasonable in the conclusions formed from country information – no jurisdictional error made out – application dismissed
Legislation:	Migration Act 1958 (Cth), s 476
Number of paragraphs:	15
Date of hearing:	21 June 2021
Place:	Sydney
Solicitor for the applicant:	In person
Counsel for the respondent:	Mr T Reilly of Counsel
Solicitors for the respondent:	Minter Ellison

ORDERS

		SYG 1277 of 2017
BETWEEN:	BUX17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	21 JUNE 2021

THE COURT ORDERS THAT:

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

REASONS FOR JUDGMENT

JUDGE STREET:

INTRODUCTION

1 This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 29 March 2017, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a protection Visa (“the Visa”).

BACKGROUND

2 The applicant is a citizen of Malaysia and his claims were assessed against that country. The applicant arrived in Australia on 30 May 2015. On 19 June 2015, the applicant applied for a protection visa.

3 In summary, the applicant claimed to fear harm by reason of his Chinese ethnicity. The applicant claimed that he was a Buddhist and was thinking of converting to Christianity. The applicant also claimed to fear harm from his father.

THE TRIBUNAL DECISION

4 The Tribunal rejected the applicant’s claims to fear harm from his father, making adverse credibility findings. The Tribunal found that any physical abuse ceased when the applicant moved in 2008. The Tribunal also rejected the claim of power and influence of the father anywhere in Malaysia. The Tribunal took into account country information and did not accept that that applicant faced a real risk of serious harm based on his Chinese ethnicity or on account of his religion whether Buddhist or Christian.

5 The Tribunal considered the applicant’s claims individually and cumulatively and found that the applicant failed to meet the refugee criterion and failed to meet the complementary protection criterion.

BEFORE THE COURT

6 These proceedings were commenced on 28 May 2017. On 10 August 2017, a registrar of the Court made orders giving the applicant the opportunity to file an amended applicant, affidavit evidence and submissions. No such documents have been filed.

7 At the commencement of the Hearing, the Court explained to the applicant the nature of the hearing and he confirmed that he understood the nature of the hearing as explained by the Court.

8 The Court notes that the proceedings appear to have been transferred from the National Migration Docket and were not placed in the Docket of this Judge until May 2021.

9 The applicant indicated that he had nothing he wished to add to the ground identified in his application. The first respondent adduced an affidavit in relation to the existence of a s 438 Certificate.

10 The documents, the subject of a certificate, were admitted into evidence and were of an administrative nature in respect to the identity of the applicant.

11 The applicant suffered no practical injustice in the conduct of the review by reason of the existence of the certificate or the information, the subject of the certificate. The Court has also taken into account that the obvious typographical error by the Tribunal in referring to Dr Philip, was correctly identified in paragraph 59 as Dr Philip Graham. No jurisdictional error arises by reason of that typographical error.

THE GROUND

12 The Ground in the application is as follows:

Ground 1
The AAT's conclusions concerning country information were irrational and not reasonably formed on the basis of evidence. See Attachment 'A'.

13 There was no Attachment A and in the absence of meaningful particulars this ground cannot succeed. Further, the findings of fact from country information was a matter for the Tribunal to determine. In substance, this Ground invites impermissible merits review. Which country information the Tribunal preferred was within its fact finding jurisdiction. Further, the country information identified by the Tribunal is evidence and provided a rational and probative basis for the adverse findings concerning the applicant’s claim to fear harm because of his ethnicity and/or his religion. The adverse findings on the country information were not of a kind to which no reasonable decision maker could come to. Further, the country information accepted by the Tribunal provides an evident and intelligible justification for the adverse findings. The adverse findings based on the preferred country information by the Tribunal cannot be said to be legally unreasonable.

14 No jurisdictional error as alleged in Ground 1 has been made out.

15 Accordingly, the application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 21 June 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 23 September 2021