Alq17 v Minister for Immigration

[2019] FCCA 829

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALQ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 829

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – oral application for an adjournment refused – whether the Tribunal complied with its statutory obligations – whether the adverse credibility findings where open to the Tribunal – invitation to this Court to engage in merits review – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 36, 476

Applicant: ALQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 37 of 2017

Judgment of: Judge Street

Hearing date: 20 March 2019

Date of Last Submission: 20 March 2019

Delivered at: Adelaide

Delivered on: 20 March 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr W Evans
Australian Government Solicitor

ORDERS

1. The oral application for an adjournment is refused.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of SIX THOUSAND DOLLARS ($6000).

DATE OF ORDER: 20 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 37 of 2017

ALQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 January 2017, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of India and his claims were assessed against that country. The applicant first arrived in Australia on a Student (subclass 572) visa on 3 July 2009. The applicant departed Australia on 5 January 2010 and returned to Australia on 2 February 2010. The applicant then applied for a Partner Combined visa on 10 February 2011 and on 30 March 2011, the applicant’s student visa was cancelled. On 8 February 2013, the partner visa review was confirmed and the applicant then sought judicial review. The applicant withdrew the application for a judicial review on 10 October 2013. It was not until 1 November 2013 that the applicant applied for a protection visa.

3. The applicant claimed to fear harm by reason of his Sikh religion and by reason of his involvement in Sikh political organisations described as the India Sikh Student Federation (“AISSF”), the Sikh Federation Union (“SFU”) and/or the All Indian Sikh Federation Union (“AISFU”). The applicant also claimed that he participated in protests in 2007. The alleged that he had been interrogated by the police and the applicant alleges, when he returned to India in 2010, he was taken to a police station and interrogated and tortured. The applicant claims to fear harm from the Dera Saccha Sauda (“DSS”) and by reason of his active membership in Sikh organisations.

4. On 3 December 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

5. On 29 December 2015, the applicant applied for review. On 10 August 2016, the applicant was invited to attend a hearing on 11 November 2016. The applicant appeared on that date to give evidence and present arguments. The Tribunal in its decision identified the background to the review application and summarised the relevant law.

6. The Tribunal summarised the applicant’s claims and evidence. The Tribunal referred to what occurred at the hearing and in particular, found the applicant’s evidence about his involvement in the alleged Sikh political organisations in India to be vague and lacking in detail. The Tribunal did not accept the applicant was an active member who was attacked by DSS followers or that he was interrogated and detained by authorities in 2007.

7. The Tribunal referred to the applicant’s return to India in 2010, raising with the applicant the inconsistency of that if in fact he feared harm in India. The Tribunal referred to raising with the applicant his future problems in the foreseeable future if returned to India. The Tribunal found there were significant inconsistencies in the applicant’s evidence which could not be explained away by language difficulties or nerves.

8. The Tribunal referring to accepting that the applicant is of the Sikh religion.

9. The Tribunal also referred to country information in respect of conflict between Sikhs and Hindus. Taking into account the country information and the applicant’s profile, the Tribunal was not satisfied there was a real chance that the applicant would face significant harm due to his Sikh religion if he returns to India in the reasonably foreseeable future. The Tribunal found that the applicant’s fear of significant harm based on his religious beliefs is not well founded.

10. The Tribunal referred to the applicant’s claimed fear of harm from an actual or imputed political opinion. The Tribunal found the applicant is not a credible witness and has not been truthful in relation to his political involvement in India. The Tribunal provided detailed reasons in support of that adverse credibility framework. The Tribunal first referred to the applicant’s migration history and his delay in applying for protection. The Tribunal then referred to it being surprising that despite his claims of persecution in India, the applicant voluntarily returned to India on 5 January 2010. The Tribunal referred to the applicant’s claims as to having been detained and the assertions that he was detained on return to India in 2010, and yet the applicant did not apply for protection until four years after returning to Australia. The Tribunal did not accept the applicant’s evidence as to the reasons why he did not apply for protection as being credible or persuasive.

11. The Tribunal did not accept the applicant was a member or follower of any Sikh organisation in India, that he took part in anti-DSS protests or that he was detained, interrogated and tortured by the authorities in India. The Tribunal in that regard found the applicant’s own evidence was vague, inconsistent and lacking in detail.

12. The Tribunal found the applicant is not a credible witness and having rejected his claims, the Tribunal was not satisfied there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm.

13. The Tribunal was not satisfied there is a real risk that the applicant will be arbitrarily deprived of his life, the death penalty will be carried out on the applicant, or that the applicant will be subjected to cruel and inhuman treatment or punishment, or that the applicant will be subjected to degrading treatment and punishment.

14. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal found the applicant did not meet the criteria in s 36(2)(a) of the Act. The Tribunal found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 3 February 2017. On 15 March 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that there were some documents that he had wanted to obtain from India and had been unable to do so. When the Court sought to clarify with the applicant whether he was seeking an adjournment the applicant indicated that he was.

4. The Court sought to clarify with the applicant whether he was seeking documents in relation to his claims for protection. It was apparent from the applicant’s response that that was the purpose of the adjournment. This Court is not in a position to make fresh findings of fact in respect of the applicant’s claims. The purpose for which the applicant was seeking an adjournment is not one in those circumstances that would warrant the Court granting an adjournment. Further, the adjournment application was opposed by the first respondent.

5. The Court is satisfied that the applicant has had ample opportunity, given the commencement of these proceedings on 3 February 2017 and the orders made on 15 March 2017, to provide any further relevant material if the applicant was able to do so. The Court is not satisfied that granting the applicant an adjournment would give rise to any relevant document being brought forward and in all the circumstances, the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. The Court has also taken into account the want of merits in the substantive application. For these reasons the adjournment application has been refused.

The grounds

1. The grounds in the application are as follows:

   1. I believe I can proof myself better to Court.

   2. I try to get more documents from my country.

   3. I did not get much time to prove myself right.

   4. I request to Federal Circuit Court to ally my submit my application because in previous Court hearing I want to get more documents from country, I already ask my family to get proof regarding this case, nut they are not get this document in certain time. All I need for this document I need some more time that’s the only reason to apply Federal Circuit Court. Thx very much.

2. The grounds in the application by the applicant do not, on their face, identify any arguable jurisdictional error. The applicant asserts that he can obtain proof to establish his claims for protection in the Court. This Court is not in a position to make fresh findings of facts in respect of the applicant’s claims. The reference to the applicant’s desire to get more documents appears to be, on its face, a desire to get more documents in respect to the applicant’s claims. Nothing in the grounds in the application identify any jurisdictional error.

3. From the bar table, the applicant made reference to his claim of a desire to get further documents. For the reasons already given, that does not identify any relevant error by the Tribunal in the determination of the review. The applicant referred to a relative dying, however this Court is not in a position to make fresh findings about the applicant’s claims.

4. This Court has no power to determine the matter on compassionate or discretionary grounds. Nothing said by the applicant from the bar table identified any jurisdictional error. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the adverse credibility findings were open for the reasons given by the Tribunal, which cannot be said to lack an evident and unintelligible justification as summarised above. No jurisdictional error is made out by the application.

5. Accordingly the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2019