AFT17 v Minister for Immigration

[2018] FCCA 3679

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFT17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3679

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

Legislation:

Migration Act 1958 (Cth), s.426A

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: AFT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 26 of 2017

Judgment of: Judge Vasta

Hearing date: 28 November 2018

Date of Last Submission: 28 November 2018

Delivered at: Perth

Delivered on: 28 November 2018

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, the Application filed 13 January 2017 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 26 of 2017

AFT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant AFT17 is a citizen of India.  He came to this country on 27 October 2008, as the holder of a student visa.  That visa was valid until 13 October 2009.

2. Sometime during the validity of that visa, it appears that he married.  On 8 September 2009, he was included as the Secondary Applicant on his wife’s student visa application.  He and his wife were granted student visas on 13 October 2009, which were valid until 15 March 2011.

3. Within the validity of that visa, the wife applied for a 485 visa, and included the Applicant as a secondary applicant based on his position as a member of her family unit.  That application was made on 7 March 2011, just before the student visas would have expired.

4. On 30 March 2012, the Applicant advised the Department of the breakdown of the marriage.  On 18 April 2012, the Delegate refused the 485 visa application as to the Applicant, on the basis that he was no longer a member of the family unit of the primary visa applicant, that is, his wife.

5. The Applicant sought review of that decision before the then Migration Review Tribunal (“the Tribunal”).  On 11 March, the Migration Review Tribunal affirmed the Delegate’s decision to refuse that visa to the Applicant.

6. Between March 2013 and December 2013, the Applicant was granted a series of bridging E visas.  The bridging E visa granted to the Applicant on 5 December 2013 was granted on the basis that the Applicant had undertaken to voluntarily depart Australia.  He did not do so.  Instead, he made this application, on 23 December 2013.

7. In April 2014, he also sought the intervention of the Minister in relation to the 485 visa refusal.  Not surprisingly, the Minister declined to intervene, giving that notice on 19 November 2015.

8. It means that the Applicant has not been outside of Australia since he arrived in 2008.  There are limited details about his claim for protection in his application.  In the application, he was asked:

   What do you fear may happen to you if you return to India?

   He answered:

   When I came to Australia, I was studying, but after one year, I got married with the girl.  She was from Sikh family, and we had a cultural barrier between our parents.  After marriage, the things were not okay, and I got divorced in 2011.  Due to family problems, and now her parents and brother don’t want me to live.  Moreover, Hindu–Sikh family always against the marriage between them.

   Question:

   Who do you think may harm or mistreat you if you go back?

   His answer:

   As in India, Hindu–Sikh religion are not good relationships between them, so if I go back now they can harm me.

   The next question:

   Why do you think this will happen to you if you go back?

   His answer:

   As Hindu–Sikh had big riot during the past years in India, and they against the marriage between each religion, so it’s not safe for me to go to India, because my ex-wife’s parents and my parents were against our marriage.  Moreover, I haven’t visited India since I came to Australia, due to fear of my wife threat.

   Question:

   Do you think the authorities of that country can and will protect you if you go back?

   Answer:

   No, the authorities in India cannot protect me in this matter, as Hindu–Sikh marriage issues are very big problem in India, therefore I don’t have any hope from local authorities in India and no hope of protection from Hindu community.

   Question:

   Do you think you would be able to be relocated within India?

   Answer:

   I never lived and stayed any other part of in India.  I am scared to, if those people found me in India.

9. The Applicant was invited to attend a protection visa interview with the Delegate in October 2015, but did not do so.  The Delegate proceeded to assess the claim, and he refused the visa, making a number of adverse credibility findings.

10. The Applicant then applied to the Tribunal.  On 21 October 2016, the Tribunal wrote to the Applicant, through his migration agent, indicating it was unable to make a favourable decision on the information before it, and the Applicant was invited to appear before the Tribunal on Tuesday, 13 December 2016, at 11 am.

11. Just before that date, on 23 November 2016, the Applicant advised a change of details, removing his representation.  In correspondence with the Tribunal, the representative had confirmed that he had advised the Applicant of the hearing, and a courtesy copy of the hearing invitation was nevertheless sent directly to the Applicant.

12. No hearing response was received. There were no further submissions received. And, in addition to the two hearing invitations sent, the Applicant was sent two text message reminders of the hearing to his mobile phone. Nevertheless, the Applicant did not attend the hearing. The Tribunal then decided to proceed, pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”).

13. The Tribunal assessed the claims.  At paragraph 44, the Tribunal said:

    44. The Tribunal notes the applicant’s delay in making a protection visa application, which was more than four years after he married his former wife. The Tribunal noted that the events forming his claims occurred, on his evidence, in 2009.  The applicant did not apply for a protection visa until December 2013, after he had been without a substantive visa for more than two years and after all other options had been exhausted.

    45. Given the fact that he has applied onshore for a further visas, I do not accept the applicant could not have applied for a protection visa earlier.  I draw an adverse inference from the fact he did not lodge a protection visa application until he had run out of other options and I note the stated triggers for protection occurred in 2006. I make adverse credibility findings based on his delay in seeking protection.

    46. The Tribunal infers from the vagueness of the applicant’s claims and the history of his dealings with the Department and Tribunal in respect of his claims that he does not intend to meaningfully participate in the review process.  It follows that the Tribunal has decided to deal with the applicant’s application for review on the material before it.

    47. The applicant claims that he will be persecuted if he returns to India because he fears harm from his family, the family of his former wife and the community for having entered into a Hindu/Sikh marriage, notwithstanding the couple’s subsequent divorce. The marriage is said to have occurred in 2009.

    48. The Tribunal notes that the applicant has not indicated what threats or harm, if any, he has experienced in the lead up to the marriage, during the marriage itself and following the divorce.  He does not indicate clearly who would cause him harm, and for what reason, given that the couple has now divorced.

    …

    50. The Tribunal had hoped at the hearing to ask the applicant for more information about each family’s reactions, and any harm experienced and threats of harm.

14. The Tribunal said that they had also hoped to ask him about whether his claims for protection fell within the ambit of complementary protection.  The Tribunal concluded that there was no evidence before it that indicated that the Applicant’s claims for protection came within the ambit of complementary protection.

15. At paragraph 54, the Tribunal said this:

    54. The Tribunal is not satisfied that the applicant subjectively fears harm from his family, the family of his former wife, or anyone else, because of a relationship that was on foot for two years and which ended five years ago, or for any other reason.

16. The Tribunal then found that they were not satisfied that the Applicant was a person to whom Australia has protection obligations, nor that he had fulfilled the refugee criteria, and therefore affirmed the decision not to grant the Applicant a protection visa.

17. That decision was made on 13 December 2016.  On 13 January 2017, the Applicant filed the application for review in this Court.  There must have been some interaction between the Applicant and the Department, because, as Ms Jackson, who appears for the Department, has said to me, the orders before Registrar Stanley setting the matter down were made by consent.

18. Nevertheless, on 10 August 2018, I made orders in chambers relisting the matter to today.  They were sent to the same address that the Applicant had given, and the Minister had also contacted the Applicant and served upon the Applicant the material they were relying upon, as well as a reminder of the date and time of this application.  That letter is Exhibit 1.

19. The Applicant was called three times, and has not appeared. His interpreter, who was booked for this proceeding, has appeared. In all of the circumstances, I am satisfied that I ought to proceed, pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, and decide the matter on the merits.

20. The Applicant, in filing his application, gave not so much any grounds of review, but in effect a potted history of the matter.  At paragraph 12 of his application, he says this:

    12. In point 54 the decision maker is not satisfied that I have fear for my life as that relation was ended 5 years ago.  I would like to say that people does not hold back to take revenge even the matter is years old.  I still have fear from them.

21. That seems to be the only matter upon which the Applicant is alleging that there is jurisdictional error.  And yet that point itself is simply an application for impermissible merits review.

22. The last point that the applicant makes is:

    14. The Decision Maker has not correctly assessed my application.

23. That is far too general for the Court to understand what it is that he actually is alleging.

24. In the recitation of the facts that I have already given, it is clear to me that the Tribunal has looked at all of the relevant issues, and has assessed those issues as they were bound to do under the legislation.

25. The point that the Applicant makes about paragraph 54, as I have said, is an allegation that the Tribunal has not taken into account that, notwithstanding the marriage has ended, there would still be the desire by the family of the wife to still harm him.  There is nothing at all in the material that would in any way show that that claim was something that was even before the Tribunal at the time that they were deliberating on this matter.

26. The way in which the Tribunal has analysed the fear of harm in the future by reference to the lack of past harm, and the fact that he was currently divorced, is a proper way in which to analyse the facts of the matter, and, moreover, was open to the Tribunal.  It does not seem to me that there is any jurisdictional error that has been illustrated here.

27. The Minister has raised the question of the procedure of conducting the hearing without the Applicant being present, even though this was not a ground of the application filed by the Applicant.  It seems to me, when one looks at the decision, and the reasons that were made, that the Tribunal has made a proper decision that was open to it on all of the material that was before it.  At paragraph 42, the Tribunal said:

    42. Pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. The reason the Tribunal has exercised its decision in this way is the Tribunal is satisfied the applicant received the Tribunal’s acknowledgement of his application for review, which emphasised the importance of informing the Tribunal of any change to his address. Additionally, the Tribunal is satisfied that the applicant was properly notified of the hearing date and time.

28. Given that all of the precursors or prerequisites to acting pursuant to s.426A were met, it was proper for the Tribunal to act according to that section. Therefore, there has been no jurisdictional error illustrated there, either, though I do thank the Minister for bringing that aspect to the attention of the Court in their written submissions.

29. Having looked at the whole of the matter, I am not satisfied that there is any jurisdictional error that has occurred.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019