AFN16 v Minister for Immigration
[2018] FCCA 1262
•18 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFN16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1262 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – no particularisation of grounds of application – Tribunal sufficiently identified the issues on which its decision turned – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 422B, 425 |
| Cases cited: MZZNK v Minister for Immigration and Border Protection [2015] FCA 217 |
| First Applicant: | AFN16 |
| Second Applicant: | AFO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 194 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 18 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 April 2018 |
REPRESENTATION
| The First Applicant: | In Person |
| Counsel for the First Respondent: | Ms Bosnjak |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 194 of 2016
| AFN16 |
First Applicant
| AFO16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application filed on 4 February 2016 which seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 11 January 2016 wherein the Tribunal affirmed a decision of a delegate of the Minister (‘the delegate’) not to grant the Applicants protection (Class XA) visas (‘the visas’).
The application has had a somewhat tortured history. It was filed in February 2016 and next came before the Court when the application came before Registrar Buljan on 22 June 2016. On that date, the Registrar made orders including that the final hearing date be 19 May 2017 and that the Applicants file and serve 28 days prior to that final hearing date any amended application with proper particulars of the grounds of the application and any written submissions.
The Applicants have not filed and served any amended application or written submissions throughout the proceedings.
The First Applicant (‘the Applicant’), prior to the hearing of 19 May 2017, submitted to the Court and the Minister, medical certificates in support of an adjournment application. The Applicant then sought and obtained an adjournment of the final hearing. The matter was next listed for final hearing on 16 August 2017.
Prior to the hearing of 16 August 2017, the Applicant sought a further adjournment of the final hearing which was consented to by the First Respondent. The matter was thus then relisted to a third final hearing date being 18 April 2018, this day.
Background
The Applicant arrived in Australia on 28 August 2008 as the dependant applicant on a Class TU (subclass 573) visa, valid until 11 December 2010. On 11 November 2010, the Applicant was granted a bridging visa, valid until 1 February 2011. On 1 February 2011, he was granted a TU (subclass 572) visa as a dependant applicant, valid until 15 March 2012. On 26 March 2012, he was granted a further bridging visa, valid until 16 April 2013. On 16 April 2013, the Applicant was granted a further bridging visa, valid until 14 January 2014. On 27 March 2014, the Applicant was granted a WC-030 bridging visa, valid until 27 May 2014. On 27 May 2014, the Applicant was granted a further bridging visa.
The Applicant did not apply for a protection visa (‘the visa’) until 27 March 2014, approximately five and a half years after he and his family arrived in Australia. Prior to the filing of the visa application, the Applicant and his daughter were dependant applicants on a confirmatory (residence) AK808 visa application lodged on 1 March 2012, which was refused on 26 March 2012. The refusal of that visa was affirmed by the then Refugee Review Tribunal on 15 April 2013, and on 17 December 2013 judicial review of the Tribunal decision was unsuccessful.
The Applicant is a citizen of India who was born in Majholi Shimla district in Himachal Pradesh, India on 26 January 1976. He is fluent in Hindi, and both before the Tribunal and on the hearing of his judicial review application, he was assisted by an interpreter fluent in the Hindi and English languages. The Applicant was married on 10 June 2004 in Shimla to his wife. The parties’ daughter was born in 2006 in India. The Applicant’s wife returned to India from Australia on 19 July 2013 and was not included in the Applicant’s application for a protection visa. The Applicant and his wife’s daughter was so included.
The Applicant presented his claims in his protection visa application on 27 March 2014, at a Departmental interview he attended with the delegate on 24 July 2014, in a further statutory declaration submitted to the Tribunal on 11 May 2015 and at his Tribunal hearing on 24 September 2015.
In summary, the Applicant claimed:-
a)he married his wife who was from a different caste to him;
b)both his family and that of his wife did not accept the caste differences;
c)as a result of the caste differences, he has been threatened and physically attacked by both his family and his wife’s family. The Applicant did not report the assaults alleged to have been occasioned to him to the police. He claims he did not want to reveal his whereabouts to people who were angry with him, and he was not sure the police would help him, the police being possibly influenced by community leaders;
d)he fears that if he returns to India he will be physically tortured, and his daughter will be targeted from his family, his wife’s family and the community.
During his interview with the delegate, the delegate asked the Applicant about his caste and that to which his wife belonged. The Applicant advised he was from the Rajput caste and that his wife was of Nepalese descent and has no caste. The delegate asked the Applicant for more details about his caste, and the Applicant advised the delegate that he did not know any more about his caste other than it is high. The delegate found the Applicant’s inability to explain his caste led the delegate to further doubt the Applicant’s claims. The delegate said:-
“His vague statements lack substance and their inconsistency cast further doubt on his credibility.”
The delegate did not accept the matters put by the Applicant:-
“…as reasonable excuses for an almost six year delay in lodging a protection visa application. I find the applicant’s delay in submitting a Protection visa application raises serious concerns about the immediacy, gravity and credibility of his claims to fear harm in India. There is nothing in the information submitted to indicate any circumstances which would have prevented the applicant from seeking protection in Australia at an earlier time. I find that the delay indicates that on the occasion of his arrival in Australia on 28 August 2008, the applicant did not have a genuine fear for his safety.”
The delegate did not accept the Applicant had been threatened or harmed in the past due to his marriage to his wife by any family members of himself or his wife, or by others in his village because he had married a “Nepali” girl.
Following the delegate’s refusal to grant the visa on the basis that the primary Applicant did not satisfy the criteria for the grant of the visa under ss. 36(2)(a) or 36(2)(aa) of the Act and on 14 August 2014, the Applicant applied to the Tribunal for merits review of the delegate’s decision on 14 September 2014. The delegate’s decision was attached to the application for review.
The Applicant claimed further before the Tribunal that, as set out in paragraph 23 of the Statement of Decision and Reasons (‘the Decision Record’):-
“The applicant claimed while his wife left him and the secondary applicant and went back to join her parents who have accepted her easily, he cannot go back because he is under threat from both sides of the family. He claimed he is under depression and anxiety, consulting physicians for CT scan and MRI, seeking appointments with psychiatrists and visiting a physiotherapist for depression related muscular pain.”
The Applicant provided the Tribunal with various documents which included:-
a)letters of support;
b)medical certificates which supported the Applicant’s claim to be suffering from mental health problems of anxiety and depression;
c)country information regarding the safety of women and children in India.
On 7 August 2015, the Tribunal invited the Applicants to appear before it on 24 September 2015. By that time, the primary Applicant had provided the Tribunal with his statutory declaration dated 24 April 2015.
On 24 September 2015, the Applicants attended the hearing assisted by a Hindi interpreter.
By letter dated 12 January 2016, the Tribunal notified the Applicants of its decision dated 11 January 2016 to affirm the delegate’s decision.
The Applicant has not travelled outside Melbourne since he arrived in Australia in 2008. His wife was studying hospitality. His wife returned to India in 2010 and again in December 2012 when his wife’s mother passed away. In July 2013, she returned permanently to India. His wife left their daughter with her husband and in 2009, the Applicant sent his daughter back to India for six to seven months because he was struggling financially, he claimed. He also claimed, in paragraph 28 of his statutory declaration sworn 29 April 2015, that his sister, who lives in Australia, took his daughter. His wife’s family did not want her. He paid a friend who sent her to school.
The Tribunal decision
As accurately set out in the First Respondent’s submissions, the Tribunal made the following findings in respect of the various claims of the Applicants:-
a)it did not accept that the Applicant belonged to the Rajput caste;
b)it did not accept that the visa application was prepared by a friend and that the Applicant was not aware of what was written in it;
c)it did not accept as credible the Applicant’s claim regarding the non-acceptance of his marriage by either his family, his wife’s family or the community because it is an inter-caste marriage;
d)it did not accept that the Applicant was attacked after his marriage on two occasions;
e)it did not accept on the evidence before it that the Applicant has a limited lifespan which would result in him not being around to care for the Second Applicant, or render him unable or incapable to care for the Second Applicant;
f)it found that any adjustment that the Second Applicant would have to make to life in India did not constitute persecution;
g)it did not accept the Applicant’s claim that the Second Applicant may suffer anxiety and depression if she was required to return to India;
h)it did not accept that the Second Applicant faced a real chance of persecution on the basis of the Applicant’s claim that India is not safe for women and girls; and
i)it accepted that the Applicant suffered from anxiety and depression, but found that the Applicant would be able to access medical services and treatments for his mental health issues on return to India.
The Tribunal did not accept that the Applicants would face a real chance or real risk of serious or significant harm from the Applicant’s family, his wife’s family, the Applicant’s community, his wife’s community, relatives, community leaders, religious groups, or anyone else for reasons of his inter-caste marriage. The Tribunal did not accept that the Applicants would face a real chance of persecution for a Convention reason or a real risk of significant harm because the Second Applicant is a woman and child. The Tribunal did not accept the Applicants would face a real risk of significant harm as a result of any adjustment the Second Applicant may make upon return to India.
The Tribunal held the Applicants were not persons in respect of Australia’s protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Act.
Consideration
The Applicant’s grounds as set out in his application are as follows:-
“1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
2. I have made an application for assistance through Victorian Legal Aid and I am waiting for a decision.”
There is no particularisation of the grounds as stated by the Applicant. The Applicant was not able to say in oral submissions made this day how it was that the decision of the Tribunal was affected by an error of law or indeed by any error, nor how it was that he was denied procedural fairness. His oral submissions essentially went to his disagreement with the Tribunal’s factual findings. They further went to concerns for his daughter. He submitted that looking after a child had a “bad mental effect of me” and that his daughter had adapted the Australian culture and would find it very difficult to return to India. He himself had been continuously in Australia since 2008 which, by implication, he suggested, meant that he was fearful of returning to India. He submitted that both he and his daughter had mental health problems, and further that his daughter has now been taken into care by the Department of Health and Human Services. I note his statutory declaration in April 2015 that his sister who has obtained permanent residency in Australia, is looking after his daughter.
In the absence of a proper basis as set out in the grounds of application on which the Applicants agitate their grounds of review, it is difficult to consider this judicial review application as being arguable in any way. The First Respondent, as a model litigant addressed in submissions whether the Tribunal made an error of law; properly considered all of the Applicants claims; and afforded the Applicants procedural fairness.
There is nothing before the Court that suggests the Tribunal denied the Applicants procedural fairness.
Under s.422B of the Act, Part 7, Division 4 of the Act, is taken to be “an exhaustive statement of the requirements of a natural justice hearing rule in relation to the matters it deals with.”
The Tribunal invited the Applicants to appear before it to give evidence and present arguments in respect of the issues in their case. The Applicants took up that opportunity to appear before the Tribunal and, with the assistance of a Hindi interpreter provided to them by the Tribunal, gave evidence and presented arguments. Accordingly, the Tribunal complied with its obligation under s.425 of the Act.
It is apparent from the Decision Record that the Tribunal sufficiently identified the issues on which its decision ultimately turned as submitted by the First Respondent.
It is evident from the Tribunal’s Decision Record that the Tribunal put to the Applicants matters adverse to the Applicants and matters which caused the Tribunal concern. The Tribunal put to the Applicants, inconsistencies in the Applicants’ evidence, and the Tribunal set out in its Decision Record those matters canvassed with the Applicants by it during the hearing and the reasons for the putting of such matters to the Applicants.
It is clear that the Tribunal considered the Applicant’s evidence concerning his mental health function and found that the Applicant’s mental health problems and/or the medication he was taking did not affect his ability to give evidence or that it explained the problems in his evidence as otherwise discussed in the Decision Record. The Tribunal did accept that the Applicant was suffering anxiety and depression, but said, at paragraph 35 of the Decision Record:-
“…there is nothing in the medical evidence provided suggesting the applicant is experiencing any difficulties with his memory either as a result of his condition or the medication he has been prescribed…”
The Applicants were afforded a “meaningful hearing”,[1] and there is no evidence before the Court to suggest otherwise.
[1] MZZNK v Minister for Immigration and Border Protection [2015] FCA 217, 62.
The Tribunal considered each and every of the Applicants’ claims and the integers of those claims, and made findings open to the Tribunal on the evidence before it. The assessment of credit is one for the Tribunal, and, as submitted by the First Respondent, the Tribunal’s assessment of credit was based on logically probative material and was open on the evidence before it.
There is no error of law attending the decision of the Tribunal. The Tribunal discharged its statutory obligations and correctly applied the legal framework within which the application fell. The Tribunal said, in paragraph 27 of the Decision Record correctly that:-
“The primary issue in this review is whether there is a real chance that, if the applicant returns to India he will be persecuted for one or more of the five reasons set out in the Refugee Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.”
There is no arguable case made out in this application. No jurisdictional error attends the decision of the Tribunal, and the application shall be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 17 May 2018
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