Aju15 v Minister for Immigration

[2015] FCCA 1217

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJU15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1217

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Show cause – proceedings dismissed.

Legislation: 
Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958, ss.424AA, 476

Applicant: AJU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 942 of 2015

Judgment of: Judge Street

Hearing date: 7 May 2015

Date of Last Submission: 7 May 2015

Delivered at: Sydney

Delivered on: 7 May 2015

REPRESENTATION

The application appeared in person

Solicitors for the Respondent: Ms C. Hillary
DLA Piper Australia

ORDERS

1. The application be dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the sum of $2500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 942 of 2015

AJU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision the Tribunal made on 13 March 2015 affirming the decision of a delegate not to grant the applicant a protection visa.  The application identified the following grounds:

   In making decision of my RRT case the member failed to assess my well founded fear if I have to return back to my home country (India). The Member also make assumptions in assessing my case, which weren’t raised during the hearing interview, also the Member did not contact me for any queries and made the Decision by her own understandings. I believe the materials provided had not been given any weightage of current situation in India, assessing my case. The current situation of India will really affect me harm me and my life will become vunerable.

2. The first respondent moved for an immediate show-cause hearing under r.44.12. The applicant sought an adjournment on the basis of a desire to obtain legal advice and find a cheaper lawyer. The adjournment application was not consented to, and the Court is not satisfied that there is any utility of granting an adjournment, as the proceedings are clearly doomed to failure.

3. The application clearly fails to disclose any arguable jurisdictional error.  I accept the submissions of the first respondent that the grounds identified in the application are an impermissible challenge to the findings of fact and merits of the matter and do not disclose any arguable jurisdictional error. 

4. The applicant is a citizen of India and claims were assessed against that country on that basis.  The applicant had a long history of migration in relation to Australia, having first arrived on 1 April 1997 holding a subclass 560 student visa.  The migration history was summarised in the adverse decision of the delegate at page 161 to 162 of the Court book and by the Tribunal in paras.18 to 25.  The applicant appeared before the Tribunal on 6 March 2014 to give evidence and to present arguments and was assisted with an interpreter and was represented by a migration agent.  Following the hearing on 6 March 2014 the Tribunal received further submissions from the applicant on 7 April 2014 and further submissions on 30 April 2014 and thereafter further submissions on 6 February 2015. 

5. This is a case where the Tribunal made adverse findings of credit in relation to the applicant.  It relevantly found:

   52. For the following reasons, the Tribunal does not accept that the applicant has suffered any serious or significant harm in India because of his religion or his political views or for a combination of both those reasons. It does not accept that there is a real chance that he will suffer serious harm or that there is a real risk that he will suffer significant harm in the future for either or both of those reasons.

   …

   54. The Tribunal does not accept that the applicant’s evidence about his claims for protection is credible for the following reasons.

   …

   60. The Tribunal found the applicant’s evidence at the hearing about his father’s political affiliation inconsistent with his claims for protection about him and his father’s affiliation with Congress. He said that his father was a Congress voter before 1992, that if before the destruction of Babri Mesjid, and then after that BJP, the pro-Hindu party.

   …

   62. The Tribunal does not accept that the applicant would have addressed a group from all ethnic groups in English, when they “would continue in their own language”. Politics is about communicating a clear message. Addressing people in a language they do not understand is not consistent with that objective. The Tribunal does not accept that “it was the thing at the time”. Further, the applicant left India in April 1997, almost 18 years ago. The Tribunal does not accept that anyone would have any interest in him even if he had the role he claimed, which the Tribunal finds was not a high-profile role in any event on his evidence that he was just a Congress supporter and did not participate very much.

   …

   64. The applicant claimed during the hearing, as he did in his application, that he had lost his job because he was Moslem. He did not respond when the Tribunal reminded him that he had said earlier at the hearing that he had resigned from his job to come to Australia, which was inconsistent. The Tribunal does not accept that he was dismissed from his job.

   65. His four and a half to five year employment as a travel agent in India is inconsistent with his claims that he would be discriminated against and unable to get a job. He worked from about the time of the Babri Mesjid incident in 1992 until he came to Australia in April 1997. That he was able to get a job and retain it following that seismic event in Indian communal history and that his father was able to work as a teacher of Hindi literature in a Hindi medium college until 1997, and that his mother was teaching Urdu in a government school where a lot of underprivileged Muslims got a free education, reinforces the Tribunal in finding that his family’s stature and situation were not affected by discrimination against Muslims. In making that finding, the Tribunal takes into account the information provided on behalf of the applicant, including that provided in 2015 and the claim that, in general terms, conditions for Muslims have worsened in the time he has been away from India. It also takes into account the claim in the post-hearing 4 April 2014 submission that his brother-in-law has been refused jobs because he is a Muslim. The applicant has not made that claim before, including during the hearing. He provided no evidence corroborating that claim. In those circumstances, the Tribunal gives does not accept the claim about his brother-in-law.

   66. For those reasons, the Tribunal does not accept that the applicant’s evidence is credible.

   …

   71. In any event, there was no evidence that any member of the family of the brother or the wife had suffered any harm as a consequence of the marriage. The applicant did not claim that he would suffer harm if he returned to India as a consequence of the marriage.

   …

   73. The applicant has not made those claims in his application or during the hearing and the Tribunal does not accept them. Those claims are not consistent with his claims in his application or his evidence at the hearing which was that he returned to India for a holiday and right wing nationalist parties were growing fast. He spoke about it to his friends who said that he would never get a job. The Tribunal does not accept that he looked for jobs, including with his former employer, in 2000. He travelled when he held his Australian student visa which permitted him to return. His visa was cancelled in February 2001. It was not consistent with his short-term travel to India for a holiday and his return to Australia on his student visa that he was looking for jobs in India at that time. The talk about not getting a job arose in the context of his claim that Hindu groups such as VHP and RSS were growing and that his father showed him pamphlets.

   …

   75. The Tribunal does not accept the submission’s claim that some of his friends told him during that visit that they had been fired or left because they were discriminated against, started doing odd jobs and took Hindu names because no identification was required. It does not accept that friends told him that Hindus attacked Muslims and burned their properties but police arrested Muslim males from their homes and imposed wrongful riot charges. The applicant did not make those claims in his application or during the hearing when the Tribunal asked him questions about his return to India in 2000. They were serious matters which the Tribunal would have expected he would have talked about if they had occurred.

   76. The Tribunal does not accept the claim in the submission that the applicant’s father told the applicant that after he retired, he joined a private institution but his employment was ended because of his Muslim religion. The applicant did claim during the hearing that the unspoken reason his father had to leave his job was because he was a Muslim, however, before that he had told the Tribunal that his father retired. He did not mention his father resuming work for another institution.

   77. The Tribunal does not accept the claim in the submission that his Muslim friends were badly injured in a Hindu mob attack during the 2002 riots. He did not otherwise make those claims. He did claim that his cousin’s house had been burned during the Godhra riot. Again, his friends being badly incurred is a most serious and memorable matter. That he did not tell the Tribunal about it is not consistent with its being true.

   …

   88. The Tribunal does not accept that the applicant’s various explanations. He is well-educated and speaks English. He has demonstrated resilience and resourcefulness by remaining in Australia, despite being unlawful for about nine years, and then pursuing various migration routes to remain in Australia. That he has not applied for protection previously is inconsistent with his claims to fear persecution or significant harm if he returns to India. He has been represented by a migration agent and lawyers, including in applications to the Migration Review Tribunal, to the Minister and to the High Court, and applying for a 485 skilled visa, from about 2000 to 2012. Although he portrays those representatives in a poor light, the Tribunal finds that none of them applied for protection for the applicant until all other avenues of remaining in Australia had been exhausted, is not consistent with the applicant having protection claims since at least the Godhra riots in 2002, if not before, because of his religion or political affiliation.

   89. For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to India. He does not have a well-founded fear of persecution for a Convention reason. He is not a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   90. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to India, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. This is clearly a case, given the applicant’s long history and delay in applying for a protection visa, where the adverse findings of credit by the Tribunal were clearly open.  It is clear the Tribunal properly identified the applicant’s claims and evidence and complied with the statutory obligation in relation to the notification of the hearing date on 6 March 2014.  After that hearing the applicant was provided with a copy of the recording of the hearing on 6 March, following which there were lengthy submissions with annexures and some 69 footnotes of material were provided to the Tribunal on 3 April 2014 as well as statements by the applicant’s brother and sister-in-law and a further submission on 30 April 2014 and a submission on 6 February 2015 relating to the applicant’s alleged fears as a minority in India. 

7. I am satisfied that the applicant had a genuine hearing. I am satisfied that the Tribunal complied with its statutory obligations. I am clearly satisfied the proceedings are doomed to failure and that there is no utility in granting an adjournment, as it will only add to the costs of the parties and utilise limited Court time. I am satisfied that this is an appropriate case to deal with under r.44.12, and I am clearly satisfied there is no arguable case of jurisdictional error by the Tribunal disclosed in the application. The application is dismissed under r.44.12.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 May 2015