AFB16 v Minister for Immigration

[2017] FCCA 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFB16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2019

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 36(2)(aa), 414A, 441A, 462A

First Applicant: AFB16

Second Applicant: AFC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 183 of 2016

Judgment of: Judge Hartnett

Hearing date: 16 May 2017

Delivered at: Melbourne

Delivered on: 16 May 2017

REPRESENTATION

The First Applicant: In Person

Solicitor for the First Respondent: Mr Brown

Solicitors for the First Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 183 of 2016

AFB16

First Applicant

AFC16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) of 14 January 2016, wherein the Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicants protection (Class XA) visas.

2. The grounds of application are as follows:-

   “1) Judicial error in AAT decision for refugee claims.

   2) Judicial error in DIBP decision for delay, gravity and creditability of refugee claims of Applicant.”

3. The First Respondent seeks dismissal of the application and that costs follow that event.

4. On 22 June 2016, Registrar Buljan ordered, amongst other orders and by consent, that the Applicant file and serve any amended application with proper particulars of the grounds of application and written submissions.  Prior to this date, the Applicant has filed no amended application and nor did he prepare any written submissions.  The Applicant confirmed that he had translated to him the First Respondent’s contentions of fact and law upon which the First Respondent relies, which were filed on 3 May 2017, and was given an opportunity this day to make oral submissions to the Court.  Those oral submissions were essentially that the Applicants did not appear before the Tribunal because the Applicants did not have, at that time, the evidence to support their claims.

5. The First Applicant submits to the Court this day that he now has evidence to establish that the story given by him to a delegate of the Minister was true, and that such evidence is contained in annexures A, B, C and D to an affidavit affirmed by the First Applicant on 1 May 2017, and filed in these proceedings.  Such annexures were not in evidence before the Tribunal.  The Court, on this judicial review application, gives no weight to the annexures as annexed to the affidavit of the First Applicant, affirmed 1 May 2017. The Applicants had a very extensive period to put such material before the Tribunal and failed to do so.

History 

1. The First Applicant, an Indian national, arrived in Australia on 24 May 2009 as the holder of a student (subclass 572) visa, accompanied by his wife, the Second Applicant, who held a student (subclass 572) dependent visa.  The First Applicant commenced a series of different vocational courses over a two year period, but completed none of them.  On 15 June 2011, the First Applicant applied for a skilled graduate (subclass 485) visa, before returning to India for a fortnight with his wife.

2. On 13 July 2012, a delegate of the Minister refused to grant the First Applicant a skilled graduate (subclass 485) visa because he was unable to provide evidence of a skills assessment or the necessary English language competence. An application was lodged with the then Migration Review Tribunal seeking review of the delegate’s decision, but in December 2013, the delegate’s decision was affirmed. The Applicants wrote to the Minister on 8 October 2013 to request ministerial intervention.  On 26 February 2014, the Applicants were notified that the Minister had decided not to intervene in their case.

3. The First Applicant lodged an application for a protection (Class XA) visa a week later on 5 March 2014 with his wife as a member of his family unit. The Applicants were invited to contact the Department of Immigration and Border Protection (‘the Department’) to arrange an interview with a delegate of the Minister in relation to the visa application.  An interview took place with the First Applicant on 24 July 2014, with the assistance of a Punjabi interpreter.  The Applicants also lodged a set of documents with the Department.  The delegate of the Minster refused to grant the Applicants a protection visa, as the delegate was not satisfied that the First Applicant was a witness of truth in relation to his subjective fear of returning to India.

4. The Applicants lodged an application for review of the delegate’s decision to refuse to grant the protection visa (‘the visa’) with the Refugee Review Tribunal (now known as the Administrative Appeals Tribunal) on 29 October 2014, with the Decision Record attached.  They nominated a migration agent as their representative.

5. An invitation to attend a Tribunal hearing to give evidence and present arguments was sent to the Applicants via their migration agent on 13 November 2015. The hearing was listed for 5 January 2016. The invitation was sent to the correct address as required by ss.414A and 441A of the Migration Act 1958 (Cth) (‘the Act’).

6. On 4 January 2016, the First Applicant responded to the Tribunal requesting a postponement of the hearing for medical reasons.  The First Applicant claimed he would provide a letter from the doctor regarding his medical treatment, but no such document was submitted to the Tribunal.  However, the Tribunal accepted that the First Applicant may have been unfit to attend a Tribunal hearing, and arranged a second scheduled hearing.

7. On 6 January 2016, the Applicants were invited to attend a second scheduled Tribunal hearing on 13 January 2016.  The invitation was sent to the correct address.  An SMS reminder about the hearing was sent to the Applicants nominated mobile phone number on 12 January 2016.

8. On 13 January 2016, the Applicants did not attend the hearing at the scheduled time. An additional 30 minutes was added to the hearing to allow the Applicants an opportunity to present arguments and evidence and to account for any very late requests or submissions for an adjourned hearing. The Applicant did not attend the scheduled hearing or provide any submissions. No medical certificate was supplied to explain the First Applicant’s failure to attend. The Tribunal completed the review on 14 January 2016 pursuant to s.462A of the Act without taking any further action to allow the Applicants to appear before it.

9. The Tribunal affirmed the delegate’s decision to refuse to grant the visa on 14 January 2016.  The First Applicant made a number of claims seeking Australia’s protection, and a summary of those claims was as set out in paragraph 35 of the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal.  Those claims were as follows:-

   a)the First Applicant claimed to be a member of a Jat Sikh community and to have completed a diploma of pharmacy in India;

   b)the First Applicant claimed he was an active member of the Shironmani Akali Dal party in Amristar; was involved in demonstrations, processions and other activities in favour of that party;  and was impressed with its ideologies;

   c)the First Applicant claimed that some members of that party were unhappy with his involvement as they were staunch followers of the Akali party;

   d)the First Applicant claimed the Akali party had lodged Court cases regarding his properties and false complaints against him in India;

   e)the First Applicant claimed that members of the Akali party asked him to “join their party”;

   f)the First Applicant claimed threats of bodily harm and against the First Applicant’s life were made, and the police did not take any action, and also claimed that government security agencies warned his family about the consequences of being against the ruling party;

   g)the First Applicant was asked to leave India to avoid detention and criminal cases.  He then obtained a student visa and migrated to Australia;

   h)the First Applicant claims Sikhs had called and attended his family home and had threatened to kill the First Applicant. He feared the Akali party and associated community leaders as they have strong links to terrorist groups;

   i)the First Applicant arranged his return to India, but was advised by his parents not to return as he would be killed or involved in false claims;

   j)the First Applicant had plans to leave Australia in 2012, but the Akali Party managed to be re-elected and win the Punjabi State Assembly; 

   k)the First Applicant claimed he received threats on the phone and that the police are unable to protect the Applicants as they act for the ruling party. 

10. The Tribunal noted the delegate’s decision had been based on a number of unfavourable findings based on credibility.  An additional claim had been made before the delegate that the First Applicant had been stopped while riding his motorcycle and beaten by five or six people who were intent on pursuing him, to change his political allegiance. The delegate found this claim to be vague. The delegate also noted that documents, submitted by the First Applicant, which related to a family property dispute and were said by the First Applicant to be related to court proceedings in India, were unable to be verified as the Department was unable to find any record of the matter on the relevant Indian Court lists, and a related First Information Report had a number that was outside the range of numbers used by the relevant police entity. 

The Tribunal

1. In making its own findings, the Tribunal did not accept that the Applicants were unable to attend the relisted hearing for medical reasons, or that either of them was unfit to attend the hearing.

2. The Tribunal went on to find, as set out accurately in the First Respondent’s contentions of fact and law:-

   a)the Applicants had made very limited claims about their fear of returning to India, making vague references to a localised political conspiracy from a rival Sikh-based political group to weaken the Applicant’s financial position by involving them in court cases in relation to their properties in India;

   b)there were a number of issues about which the Tribunal required more detailed evidence, namely:-

   i)who it was that the Applicants feared, should they return to India;

   ii)what the differences in ideology were between the Akali Dal party in power in Punjab, and the party with which the First Applicant had affinities;

   iii)why the Applicants were fearful before they left India, and why they remained fearful;

   iv)how often the Applicants were threatened, how the threats were conveyed, and whether the Punjabi State authorities were involved in the threats being made;

   v)whether State authorities could protect them upon their return to India;

   vi)what were the details of the alleged false claims made against the First Applicant’s parents, and their being released on bail;

   vii)the number and nature of threats made against other members of the Applicants’ families;

   viii)why the Applicant’s child remained resident in India, given the claims of harm towards the Applicants’ families;

   ix)how a land dispute that had lasted 25 years had come to involve political parties, and how the dispute would threaten serious or significant harm to the Applicants in the foreseeable future;

   x)what their response was to the delegate’s findings about the Court documents and the First Information Report, and to country information about the prevalence of fraudulent documents in India, and whether there were reasons why the Tribunal should not consider the Applicant’s documents as fraudulent;

   xi)their visa history and credibility.  In particular, their delay in lodging a protection visa application for almost five years, having been threatened prior to first arriving in Australia in 2009, but only seeking protection after their sponsored work visa application was finally refused in February 2014;

   xii)whether the Applicants had a genuine fear of harm, given that they returned to India for two weeks in 2011, and whether any claims about fearing harm were included in the 2013 request for Ministerial Intervention, as the recorded outcome did not make reference to such claims having been made.

3. The Tribunal found that the Applicant’s absence from the hearing strongly indicated that there was no basis for their claim of fears. The Tribunal concluded that the Applicants did not face a real chance of persecution, for a Convention reason, should they return to India in the reasonably foreseeable future, and that they were not owed protection obligations, pursuant to the complementary protection provisions of s.36(2)(aa) of the Act.

Consideration

1. The Applicants second ground, as set out in the application for judicial review, is directed at the delegate of the Minister’s decision, which is not a decision that comes within the jurisdiction of the Court. The Applicant’s first ground, that the Tribunal’s decision was affected by “judicial error” is not supported by any particulars.  It is no more than a bare assertion. No written submissions were filed to expand upon this ground.  In oral submissions this day, the First Applicant made no relevant submissions in respect of this ground.

2. The Applicants were not denied procedural fairness in the course of the conduct of the review by the Tribunal.  As submitted by Counsel for the First Respondent, the Applicants made no submissions to the Tribunal, other than to request an adjournment of the first hearing, which was granted. The Applicants provided no response to the invitation to attend the relisted hearing either before or immediately after the relisted hearing, despite being reminded to do so. No medical certificate was submitted. In these circumstances it was reasonable for the Tribunal to make its decision without taking further steps to enable the Applicants to participate in a hearing.

3. All of the findings of the Tribunal were open to the Tribunal on the evidence before it. Given the Tribunal’s inability to ask of the Applicants various questions about their claims, it was open to the Tribunal to be satisfied the Applicants were not persons to whom Australia owed protection obligations.  

4. The application is without merit, and shall be dismissed with costs.

I certify that the preceding twenty-two (22)  paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 23 August 2017