ACP16 v Minister for Immigration

[2017] FCCA 1567

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACP16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1567

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

First Applicant: ACP16

Second Applicant: ACQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 63 of 2016

Judgment of: Judge Riethmuller

Hearing date: 27 March 2017

Date of Last Submission: 27 March 2017

Delivered at: Melbourne

Delivered on: 27 March 2017

REPRESENTATION

The First Applicant appeared In Person

Counsel for the First Respondent: Mr Tran

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the sum of $1,106.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 63 of 2016

ACP16

First Applicant

ACQ16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application to set aside orders dismissing the applicants judicial review proceedings.  The applicants brought proceedings for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 December 2015, dismissing the application to review a delegate’s decision not to grant the applicants protection visas.

2. The matter was pending in this Court for some time and eventually called on for hearing on 31 January 2017.  The applicants did not appear and the application was dismissed with a costs order.  The applicants sought to have that order set aside, by Application in a case filed 24 February 2017, so that the substantive issues in the application could be dealt with.  The first applicant set out, in his affidavit in support of the application, that there was some confusion as to the appropriate courtroom for him to attend and he says by the time he reached this courtroom, the hearing had finished.

3. Given that this is a protection visa application, I am satisfied that that is a sufficient explanation for the failure to appear, and that the real question for me to determine is whether or not the applicant has established an arguable case that would warrant reinstating the proceedings.  If so, I would then proceed to hear that application. I turn then to the substance of the case. 

4. The applicant is the first named applicant who brings the proceedings with his wife, the second named applicant.  They are citizens of India.  They arrived in Australia on tourist visas in February 2013.  In May 2013, they applied for protection visas.  Those applications were refused in September 2014 by a delegate of the Minister.  In October 2014, they sought review by the Tribunal.

5. On 2 November 2015, the Tribunal wrote to the applicants, advising that it had considered all of the material before it relating to the application, but was unable to make a favourable decision on that information alone.  The Tribunal invited the applicants to attend a hearing on 11 December 2015 to give oral evidence and present arguments.  On 4 December 2015 and 10 December 2015, text messages were sent, reminding the applicants of the hearing, to the phone numbers provided by the applicants.  No responses were received, and the applicants failed to attend at the hearing before the Tribunal.  The Tribunal then made a decision a week later on 18 December 2015, affirming the delegate’s decision.

6. The substance of the claim for protection relates to an incident that is said to have taken place in 2011.  This is summarised in the Tribunal’s summary of the applicants claim at paragraph [19] of its decision, which sets out as follows:

   19. The applicant’s claims made in his application for a Protection visa can be summarised as follows:

   ·   The applicant was been born into a middle class family in Gujarat in 1981 and is being targeted because of his activities supporting lower caste people.  He worked as a private contractor in construction and worked with people from all castes, particularly lower caste people.  The applicant worked for organisations who support lower caste people.

   ·   The applicant joined the Congress Party.

   ·   In 2011, when travelling by bike, the applicant stopped to intervene in a dispute when he saw a couple of men being beaten by others.  The perpetrators said the men, who were from a lower caste, were responsible for damage on their farm.  The applicant called the police who came and took away the victims rather than the perpetrators because the perpetrators were politically influential. The applicant enlisted the support of his organisations, Dalit Seva Samaj, to get the men released.  He later found out that the perpetrators were connected politically and to the mafia.  Subsequently, the perpetrators came to his house asking for repayment for the loss of money from their farm and told the applicant to stop working for lower caste people.  When he complained to police, the police asked for money.  The perpetrators returned and hit the applicant.  The applicant decided to give them money but they refused to accept it and told him to leave the county.  These people will kill him if he returns to India.

   ·   The applicant and his wife are now in financial debt and the people to whom he owes money to will kill him if they return to India.

7. Ultimately, the Tribunal was not satisfied on the evidence before it (bearing in mind that the applicants had not attended in person to present oral evidence or answer questions).  The Tribunal concluded:

   34. The applicant has not attended the hearing with the Tribunal to provide more information about his claims, where he was advised in the hearing notice that the Tribunal had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone.  As above, the applicant’s claims are vague and very limited and there are areas of considerable concern relating to the genuineness of evidence he has submitted in relation to his Protection application.  As stated above, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and the failure of the applicant to attend the Tribunal hearing, the vague and limited claims and evidentiary concerns leads the Tribunal to have significant concern about the credibility of the applicant’s claims.

8. Thereafter, the Tribunal affirmed the decision.  It is unsurprising that the Tribunal would have affirmed the delegate’s decision, given the nature of the claims made and the sparse evidence provided.

9. The proceedings before this Court rely upon written grounds for applicant as follows:

   1. I applied for PROTECTION VISA to department of immigration which was refused.

   2. Then I apply to AAT for review of that decision. Which is affirms by tribunal on 18/12/2015

   3. Department of immigration had seized my passport with latter that your passport is fraudulent

   I don’t have knowledge of altering in my passport I have given my passport to agent for my Australian visa and science I arrived on legal visa I never give my passport to another person.  Please note that I arrive in Australia with same passport and I have given immigration clearance on arrive with this same passport.  Now Indian high commission has refused me to issue new passport they are saying that Australian immigration department cannot seized my Indian passport.

   4. Without passport I am unable to work or in future cannot go back to India as I don’t have any travel document with me as this situation.

10. In substance, the grounds appear to put the argument that, as a result of difficulties with respect to a passport being seized, the Indian High Commission refused to grant a new passport and therefore the applicant is unable to travel outside of Australia and cannot go back to India because he does not have any travel documents.  The problem of travel documents is not a basis for a protection visa.  In substance, if the Australian Government is unable to arrange for appropriate travel documents to be issued to the applicant, it will not be able to send him back to India or elsewhere.  This is not a basis for judicial review of the Tribunal’s decision. 

11. The applicant does not articulate any particular complaints about the findings of the Tribunal or the way in which the Tribunal approached the matter.

12. The Tribunal considered the claim in a careful way, setting out as follows:

    27.  The claims as made by the applicant in his application, and as recorded by the delegate as made at his Departmental interview for a Protection visa, are vague and limited. Information recorded in the Departmental decision as discussed with the applicant at his interview, also raises significant concerns about the identity and claims of the applicant. These matters raise significant credibility concerns for the Tribunal. Had the applicant attended a hearing, the Tribunal would have explored his claims with him and sought further information from him on a range of details relevant to his stated claims.

    28.  The Departmental delegate recorded that the applicant had provided information in his Tourist visa application which was lodged in India which contradicted the information he provided in his Protection visa. The delegate recorded that the applicant had provided information which indicated that he had a successful business in Mumbai. The delegate also recorded that the applicant presented to the Department at his interview a passport which indicated he had been born in Gujurat. This was information was different from that recorded in the passport he submitted with his Tourist application which shows his birthplace as Mumbai. The delegate records that the applicant had no explanation for the discrepancies in the documentation and that the Department's Document Examination Unit determined that the passports (those of both the applicant and his wife, the second named applicant) submitted to the delegate had been fraudulently altered (pages had been inserted into the passport), and they classified the document as 'bogus'. Had the applicant attended the hearing, the Tribunal would have asked the applicant for details of his identity and for further information about his claimed background. As the applicant did not attend the hearing, the Tribunal was not able to make enquiries to obtain more information about the discrepancies in his identity documentation. In the absence of more information, the Tribunal has serious concerns about the applicant's credibility in respect of his identity.

    …

    30.  The applicant's claims have centred on his claimed fear to return to India because people involved in an incident in 2011 will kill him. The claims he has made about this incident are very vague. He has claimed that these people have harassed and mistreated him and that for this reason he had to move to another village and his business collapsed. He stated that although he offered the people money, they refused to accept it and told him to leave the country. Had the applicant attended the hearing, the Tribunal would have sought additional detail about this incident e.g. details of who the perpetrators were and why they would have any interest in killing him now or in the foreseeable future. However, as he did not attend, the Tribunal was unable to do this.

13. The Tribunal also recounts the difficulties it confronted by the applicant’s failure to attend at paragraph [31], saying:

    31.  Had the applicant attended the hearing the Tribunal would also have had the opportunity to discuss observations recorded in the Departmental decision by the delegate that indicate that that there were discrepancies in the applicant's account of the incident, e.g. that he went to the police by himself during the incident, rather than obtaining assistance from the Dalit Seva Samaj to get release of the dalits. The Tribunal would also have been able to raise concerns about the general implausibility of the claim that the perpetrators refused the offer of the applicant's money but told him to leave the country. Had the applicant attended the hearing, the Tribunal would have sought additional detail about this incident and explored these concerns. However, as he did not attend, the Tribunal was unable to do this.

14. On hearing the applicant orally today, the applicant raised the issue that he said he had health difficulties which prevented him from attending the hearing on 11 December 2015.  There is no evidence before me of any health difficulties that he had at that time, nor any explanation given as to why he would not have notified the Tribunal in the days following the hearing, if he had been prevented from attending by reason of health difficulties, nor any request for an adjournment.  The Tribunal did not make its decision immediately, but waited seven days, which would ordinarily give a person ample opportunity if there were some real reason that prevented them from attending before the Tribunal.

15. In these circumstances, I am not persuaded that the applicant has shown that he was denied procedural fairness in the hearing before the Tribunal.  In the absence of any other ground for review or potential ground for review in these proceedings, I am not able to be persuaded that the applicant has an arguable case and, for these reasons, there is no purpose to be served by reinstating the applicant’s application.  I, therefore, dismiss the present interlocutory application before the Court.

    [Further argument ensued]

16. Costs ordinarily follow the event in this jurisdiction.  The costs claimed appear to me to be reasonable, having regard to the scale.  I therefore order that the applicant pay the respondent Minister’s costs fixed at $1,106.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 5 July 2017