ALB17 v Minister for Immigration

[2017] FCCA 2714

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALB17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2714

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36 (2)(a), 36(2)(aa)

Cases cited:

Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314

Applicant: ALB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 86 of 2017

Judgment of: Judge Jarrett

Hearing date: 3 November 2017

Date of Last Submission: 3 November 2017

Delivered at: Brisbane

Delivered on: 3 November 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Sparke Helmore

The second respondent entered a submitting appearance.

ORDERS

1. The application filed on 2 February, 2017 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 86 of 2017

ALB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his application filed on 2 February, 2017 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal given on 12 January, 2017 which affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.

2. Broadly speaking, he alleges that the Tribunal fell into jurisdictional error by not taking into account a number of matters raised by him which he says were significant and, if properly considered, should have led to a different result.  So much appears from the grounds of review set out in his application.  Before me, however, he argued that the Tribunal did not make an error in its decision, but rather, the Tribunal ought to have believed what he had said. 

3. The first respondent opposes the application.  The second respondent entered a submitting appearance.  In accordance with the directions made by the Court for the purposes of preparing this application for hearing, the first respondent has delivered written submissions.  The applicant has not.

4. As will be seen, the Tribunal’s decision is not attended by jurisdictional error and the application must be dismissed.  The Tribunal gave consideration to the matters raised by the applicant but nonetheless concluded that his fear of persecution should he be returned to India was not well-founded.  My reasons for those conclusions are as follows. 

5. The applicant is a citizen of India.  He arrived in Australia on 30 November, 2008 as the holder of a student visa granted offshore on 10 November, 2008.  His student visa ceased on 11 April, 2011 and he remained in Australia as an unlawful non-citizen until he lodged an application for a Protection (Class XA) visa on 9 April, 2015.

6. On 10 July, 2015 the applicant was invited to attend an interview with a delegate of the first respondent scheduled for 30 July, 2015 however he did not attend.

7. On 10 August, 2015 a delegate of the first respondent refused the grant of the visa.

8. On 7 September, 2015 the applicant lodged an application for review of the delegate’s decision in the Tribunal.

9. On 2 February, 2016 the Tribunal invited the applicant to give evidence and present arguments at a hearing before it.  The hearing proceeded on 16 March, 2016 and the applicant was assisted by a Punjabi interpreter. 

10. On 12 January, 2017 the Tribunal affirmed the delegate’s decision.

11. The Tribunal recorded the claims made by the applicant in his visa application at [9] – [16] of its reasons.  Specifically, the Tribunal recorded that the applicant claimed that he would suffer harm at the hands of his ex-wife and her father if he returned to India.  It noted his claims that he married his wife in November, 2008 and that “everything was going smoothly” and that the applicant and his “spouse were OK with our relationship till May 2011but suddenly she started taking the fights with me and the blaim (sic) me – for various reasons  she has tried to do domestic violence on me time to time, but I think she has nobody to support here that’s why she has done it with arguments only”.

12. The Tribunal recorded that the applicant and his wife divorced on 30 May, 2012.  It recorded his argument that as soon as his ex-wife left Australia, she started threatening him. The applicant feared that his spouse’s father would kill him because he was a military officer with “lots of big gun known to him in India” and had political party contacts. The applicant recalled his ex-wife’s father beating someone so hard that the person was knocked unconscious and subsequently died in hospital.

13. The Tribunal also recorded that the applicant had a property dispute with somebody “who was a land mafia operated by the same government which is still in power” who had threatened the applicant and fired shots at him.  The Tribunal recorded the applicant’s claim that he thought that his spouse and her father and this other person could “plot against me after I go back in there in India”.

14. The Tribunal was willing to accept that the applicant was married in India in 2008.  During the course of the hearing before the Tribunal, the applicant raised, for the first time, that his marriage was an inter-caste marriage.  However, the Tribunal did not accept that the marriage was inter-caste.  He also claimed that his wife was a Sikh and that he was a Hindu. The Tribunal noted that the applicant did not indicate in his application that his marriage was inter-caste or that he was a Hindu, but rather he claimed that his mother was Sikh and his brother and sister were married in Sikh Gurdwaras. The Tribunal recounted the evidence given by the applicant during the course of the hearing about his religion and noted the obvious inconsistencies in that evidence.  The Tribunal found that the applicant was a Hindu.

15. The Tribunal carefully set out the applicant’s evidence concerning his claims that his wife’s parents had threatened to kill him.  The Tribunal noted the various changes in the applicant’s evidence concerning the threats to his life by both his wife’s parents and his wife.

16. The Tribunal recorded the applicant’s evidence about visits by his family to his spouse’s family in India and the reaction he claimed they received from that visit.  The Tribunal raised with him various inconsistencies in his evidence about these matters. 

17. The Tribunal also asked the applicant about his claims that his spouse’s father was violent and had beaten somebody who had subsequently died.  The applicant seemed to recant those claims during the course of his interview with the Tribunal.  The Tribunal specifically put to the applicant that it thought that he was being untruthful.

18. The Tribunal asked him about whether he feared anyone apart from his wife’s family.  The applicant said that he only feared his wife’s family.  The Tribunal asked him whether he ever had a property dispute as was claimed in his protection visa application.  The applicant told him that he had not.  The applicant told the Tribunal that he had never had a property dispute with “land mafia” who had threatened him and fired shots of him.  He told the Tribunal that “someone else” must have written this in his application.

19. The Tribunal did not accept that the applicant was ever harmed or threatened by his wife or her family, or that he faced any harm from them if he was to return to India. The Tribunal did not accept that the applicant ever had any property disputes in India or was threatened or harmed by the “land mafia” in India. The Tribunal found that the applicant’s evidence was inconsistent , implausible, evasive and that he was unresponsive to direct questions.  Further, the Tribunal noted that for much of the hearing the applicant appeared to be fabricating evidence and his claims were so inconsistent that it was very difficult to know the claims the applicant was actually maintaining.

20. The Tribunal also considered it implausible that the applicant did not know when he was married, when his life was first threatened by his wife or his wife’s father or when his mother was said to have been threatened by his wife’s family.  It also considered it implausible that the last time the applicant spoke to his wife was in 2013 regarding the signing of divorce papers, given the applicant claimed to have been divorced in May, 2012. Further, the applicant claimed that if he returned to India he would visit his wife’s family although he claimed that he could not return to India because his wife’s family would harm him.

21. Of particular concern to the Tribunal were the applicant’s claims made in his protection visa application that he was shot at by “land mafia” and that his wife’s father had beaten a man to death. The applicant admitted these claims were untrue after giving evidence which contradicted his visa application.

22. In summary, the Tribunal found that the applicant gave contradictory evidence in relation to many aspects of his claims including:

    a)why he did not attend the departmental interview;

    b)whether he was a Hindu or a Sikh;

    c)how many times his wife’s parents had threatened to kill him;

    d)how those threats were made and the content of those threats;

    e)when he last spoke with his wife;

    f)whether his wife’s parents had written a “threat letter”;

    g)whether he had known his wife’s father to have ever harmed anyone;

    h)whether he had a property dispute;

    i)whether he was fired upon by “land mafia”; and

    j)why he delayed in applying for a protection visa.

23. The Tribunal concluded as follows:

    43. The Tribunal does not accept that the applicant will be harmed if he returns to India because of his marriage to his wife, his relationship with his wife, his separation from his wife, or for any other reason. The Tribunal finds that the applicant has fabricated his claims about being threatened in order to improve his chances of being granted a protection visa. The Tribunal is also supported in this conclusion by the fact that the applicant did not apply for a protection visa until 2015 despite claiming to fear his wife’s family from the time of their separation in 2012. The Tribunal does not accept the applicant’s various contradictory explanations for failing to apply for protection earlier. In addition, the Tribunal gives some weight to the fact that the applicant did not attend the interview with the delegate to support the view that the applicant did not fear returning to India and that there is no real chance that the applicant will be harmed if he returns. The applicant’s failure to attend may tend to support the view that the applicant did not consider that there was a real risk that he would be harmed if he returned to India.

24. The Tribunal was not satisfied that the applicant met the criteria in ss. 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) and was not entitled to a protection visa.

Grounds of review

1. In his application filed on 2 February, 2017 the applicant sets out the following ground of review:

   The Applicant claims that the Administrative Appeals Tribunal (Refugee and Migration division) and Department of Immigration and Border Protection has made jurisdictional error by not giving consideration to his Claims and the oral evidence given by me at hearing. The Administrative Appeals Tribunal and Department of Immigration and Border Protection don’t know the exact Law and Order situation back in Punjab in INDIA and their perception of how the law works in those countries is based upon the Legal and justice system in Australia which is very fair and square. I claim that both the Administrative Appeals Tribunal (Refugee and Migration division) and Department of Immigration and Border Protection did not take into consideration this fact that back in India ‘Might is Right’ is the rule all over the country and my In-Laws being influential and rich people are very capable of causing physical harm and persecution to me if I return back to India. And they would do it as they are the family who could do anything for their false honour and they think as I divorced their daughter, I have brought dishonour to their family name and they are threatening to my family back in India that the day I entered India they are going to kill me and restore their families’ pride so that no one in future dares to divorce their daughters. Thus I very humbly requests to the respected course that both the Administrative Appeals Tribunal (Refugee and Migration division) and Department of Immigration and Border Protection has made jurisdictional error by not considering my situation in the light of Law and Order situation in Punjab INDIA.

2. Despite the orders made in this application on 31 July, 2017 permitting the applicant to file an amended application for review by 18 September, 2017 nothing has been filed.  As I have already pointed out, he has not filed any written submissions which explain any further his ground of review. 

3. As the first respondent points out, to the extent that the applicant contends that the delegate’s decision was affected by a jurisdictional error, this Court does not have jurisdiction to review that decision.  In any event, if the Tribunal’s decision is not flawed, it will cure any defects and irregularities in the delegate’s decision: Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344 and Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314.

4. It is plain from a fair reading of the Tribunal’s reasons that the Tribunal did indeed consider the applicant’s claims that his in-laws would harm him.  However, the Tribunal did not accept those claims.  The Tribunal said:

   40. The Tribunal does not accept that the applicant was ever harmed or threatened by his wife or her family or that he faces any threat from them if he returns to India. In addition, the Tribunal does not accept that the applicant ever had any property disputes In India or was threatened or harmed by “land mafia” in India. His evidence before the Tribunal was inconsistent and implausible. During the hearing the applicant was evasive and unresponsive to direct questions. There were also major inconsistencies between what the applicant claimed in his application and before the Tribunal. For much of the time, the applicant appeared to be fabricating evidence as he was responding to questions. The applicant’s claims were so inconsistent during the hearing that it was very difficult to follow what claims the applicant was actually maintaining.

5. The applicant contends that the Tribunal did not give consideration to his claims and evidence at the hearing.  Whilst this is a vague assertion lacking particularity, I have carefully considered the applicant’s claims made in his protection visa application and the matters considered by the Tribunal as revealed by its reasons.  It is clear from the Tribunal’s reasons that it gave careful consideration to the applicant’s claims and to his evidence at the hearing before the Tribunal.  There is no suggestion from the applicant that the Tribunal did not properly understand his evidence or has misrepresented his evidence in its reasons.  There is no room for the contention that the Tribunal did not give consideration to the applicant’s claims and his evidence at hearing.  It is by reason of that consideration, that the Tribunal concluded that the applicant’s claims were not reliable.

6. In relation to the applicant’s claim that the Tribunal did not take into account the “Law and Order situation in Punjab”, the material before this Court does not reveal that the applicant advanced any such claim before the Tribunal.  I accept the first respondent’s submissions that the Tribunal was not required to consider that claim because it was not made and did not squarely arise on the material before the Tribunal.

7. I accept the first respondent’s submission that the applicant’s ground of review, at its highest, amounts to an impermissible request for the Court to engage in merits review.  That submission is consistent with the matters said to me today by the applicant in support of his application for review. 

Conclusion

1. The applicant does not establish that the Tribunal’s decision was attended by jurisdictional error.  His application must be dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date: 8 November 2017