ABK17 v Minister for Immigration

[2019] FCCA 867

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABK17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 867

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: ABK17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 3 of 2017

Judgment of: Judge Vasta

Hearing date: 18 March 2019

Date of Last Submission: 18 March 2019

Delivered at: Brisbane

Delivered on: 18 March 2019

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 5 January 2017 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 3 of 2017

ABK17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 14 December 2016, the Administrative Appeals Tribunal (“The AAT”) affirmed a decision not to grant the Applicant, his wife and his two children protection visas.  On 5 January 2017, the Applicant filed an originating application in this Court asking this Court to review the decision. 

2. The background is that the Applicant and his family are citizens of India.  The Applicant came to Australia on a visitor’s visa on 24 January 2014.  On 31 March 2015, he made an application for a protection visa.  His claim was that he is a Muslim, which is a minority religion in India; he was an activist for a political party that stands for the minority community and, therefore, he faced trouble from activists who were Hindu; and, that he had been beaten up brutally a few times because of his religion by people from a majority group.

3. When he was interviewed by the delegate, he made some further claims. He said that he was a member of the Indian Union Muslim League.  Though not an office bearer, he was a welfare worker.  He said that he was first assaulted in 1999 and he was assaulted a number of times, culminating in an incident in 2010.  He said that, on that occasion in 2010, a group of people who were against his actions of helping others, were waiting for him on the street as he returned home from work.  They surrounded him, beat him, and he was hospitalised.  

4. With regard to a beating that he said happened in 1999, he said he did make a complaint with the police, but withdrew it.  Now, once the complaint was withdrawn, the group threatened to kill him and destroy his family.  He said that there had been many Muslims killed in his home area.

5. The AAT went through very thoroughly all of the statements that the Applicant had made, all of his claims and his immigration history.   The AAT noted that the Applicant had previously applied for a maritime crew visa; that is, he had made an application whilst in India for a visa to come to Australia as part of a maritime crew.  In that application, which was only shortly before he was given the visitor visas, he said that he was unmarried. 

6. When asked to explain this, he said that he paid someone 300,000 INR to make a visa application for him and that he had no idea what the person was doing or saying. He said that he was then told by the person that he would not be able to take his wife and children with him. He said that he told the person that he did not want this visa.  The departmental records show that the visa was actually refused by the department because there was no relevant employment contract attached to it.

7. The Tribunal had quite some difficulty accepting the Applicant’s claims that he was a member of the IUML.  He seemed to know very little about the real workings of that political party.  Quite tellingly, he says that he was working in the welfare aspect of that party and yet he had no idea of the Sachar Committee.  That committee was a committee that had been set up by the government looking at how to empower poorer people, or to make their lot, better. The Tribunal noted that the paucity of knowledge displayed by the Applicant was totally incongruent with someone who said that they were working in the welfare area.

8. The Tribunal had difficulty with the Applicant’s stories about being beaten and attacked and noted quite some inconsistencies in what he was saying to the Tribunal and what he had previously said and written about the alleged attack.  The Tribunal noted that he was vague and at times incoherent in his evidence.  In the end, the Tribunal did not accept his version. 

9. There was a letter that was produced, purportedly written by the person who was said to be the president of the IUML, however, the inconsistencies with that letter and other country information made the Tribunal doubt the authenticity of the letter.  In the end, the Tribunal thought it was more consistent with a contrived or forged letter written in response to the delegate noting that there was nothing that corroborated the Applicant’s story of being a member of the IUML.

10. The Applicant spoke of the danger he feels that he will be in if he is sent back to India, but the Tribunal went through those matters and came to the conclusion that they did not accept his claim to fear harm from members of the BJP, RSS, Shiv Sena, people involved in the black market sand trade or for any other reasons. 

11. Having come to those conclusions, it was a logical consequence that the AAT would affirm the original decision.

12. The application lists two grounds – and I use the word “grounds” very loosely.  They are

    (1)     I have had issues with political leaders back in India, so I cannot go back there.

    (2)     I have wife and 2 kids we can not [sic] survive in India without job hard to find job without support of other people   It will also affect education of my eldest son youngest son due in kindy next year.

13. Obviously, none of those grounds illustrates any jurisdictional error. 

14. At the beginning of today’s hearing, I attempted to explain to the Applicant what the purpose of this hearing was.  I explained to him that it was a review and not an appeal.  Whether the Applicant just simply did not understand what I was talking about, because he was listening to me through an interpreter by phone, or whether that it was simply that he did not want to engage with the process, the Applicant did not in any way even attempt to show that there had been any error on the part of the Tribunal. 

15. All it was that he said is that, because of his situation, his son cannot get a passport.  The Indian High Commission will not give him anything to confirm the identity and, therefore, he is finding it difficult to have the children study at school or kindy, because the identification aspect cannot be properly addressed.

16. Again, I asked him a number of times as to what mistake or what error it was that the Tribunal had made, and he could give none.  All it is that the Applicant is doing is asking for an impermissible merits review.  This Court is here to review the decision to ensure that the decision, that was made, was not affected by jurisdictional error. It matters not what this Court thinks of the original decision other than to ask itself whether the whole of the assessment made by the Tribunal was done according to law.

17. It seems to me, then, that there is nothing on the record that would give me any doubt that the Tribunal has acted according to law.  I have had a look at the decision.  I cannot myself see any jurisdictional error.

18. In those circumstances, I have only one course available to me, and that is to dismiss the application with costs in the sum of $5,600.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 10 May 2019