Amv19 v Minister for Immigration

[2019] FCCA 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMV19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2015

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal exceed its statutory power – whether the Tribunal misapplied or misconstrued the relevant law – whether the applicant had a real and meaningful hearing – whether the Tribunal provided logical and ration reasons for its adverse findings – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: AMV19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 51 of 2019

Judgment of: Judge Street

Hearing date: 23 July 2019

Date of Last Submission: 23 July 2019

Delivered at: Perth

Delivered on: 23 July 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr T Lettenmaier
Sparke Helmore

ORDERS

1. The name of the first respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’ and dispenses with the need for the filing any document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 23 July 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 51 of 2019

AMV19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS 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 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 January 2019 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 arrived in Australia on 14 September 2015 on a Student (subclass 573) visa which was cancelled on 17 August 2017. Following that, the applicant remained an unlawful non-citizen until he was placed in immigration detention on 8 September 2018. The applicant applied for a protection visa on 25 October 2018.

3. The applicant alleged that he had started gambling after coming to Australia and lost a lot of money that he borrowed from gangsters. The applicant claimed that if he returned to India his life would be at risk as he received serious threats from gangsters to whom he allegedly owed money. The applicant alleged that Indian authorities are corrupt and would not protect the applicant if he returned to India.

4. On 26 November 2018, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

5. The applicant applied for review on 30 November 2018. The applicant was invited to attend a hearing and did attend a hearing on 9 January 2019. The letter dated 21 December 2018, inviting the applicant to appear at the hearing informed the applicant that, having considered the material before it, it was unable to make a favourable decision on that information alone.

6. The Tribunal in its reasons identified the background to the application for the review and set out the relevant law, both in the body of the Tribunal’s reasons as well as in an attachment to the reasons. The Tribunal summarised the applicant’s claims, as well as the background to the applicant’s migration history.

7. The Tribunal identified concerns in respect of the applicant’s evidence and found the evidence given by the applicant to be vague, inconsistent and unconvincing. The Tribunal found the applicant not to be a credible witness and did not accept the key claim that the applicant borrowed gangsters’ money and that he cannot repay and fears that he will be harmed as a consequence if returned to India.

8. The Tribunal identified the applicant’s evidence in relation to there being no written agreements with any of the individuals from whom he borrowed money and no security as collateral, and that he had never made repayments on any of the claimed loans. The Tribunal accepted that while the applicant may have lost money gambling and lost focused on his studies and not been able to afford his course fees, the Tribunal did not accept the applicant borrowed money from unauthorised money lenders or gangsters which he cannot repay. The Tribunal gave detailed reasons in support of those adverse credibility findings.

9. Firstly, the Tribunal found the applicant’s description of his relationship with the three individuals he claimed loaned him money to be vague and unconvincing. Secondly, the Tribunal found it highly unlikely that these individuals would have been prepared to loan the applicant significant amounts of money without any paperwork whatsoever and with nothing as security, particularly when the applicant is in Australia. The Tribunal also found the applicant’s evidence regarding how much he claims to have borrowed from these three people to be inconsistent, casting further doubt on his claims to have borrowed money from them.

10. The Tribunal also identified that it would expect, under the claimed circumstances, the lenders would be continuing to put extreme pressure on the applicant’s mother and other family members in India to enable them to establish contact with the applicant and have him or other family members agree to some terms for repayment of the loans. The Tribunal found that it would be highly unlikely that the alleged lenders would cease contacting the family members in India and simply bide their time waiting for the applicant to return to India.

11. The Tribunal also took into account in its adverse credibility findings that if the applicant was fearful for his safety in India from September 2016, he would have been highly motivated to explore options to enable him to remain in Australia, which he did not do prior to his location and detention on 8 September 2018. The Tribunal found the applicant was not being frank about his circumstances from mid-2017 until he was detained in September 2018.

12. The Tribunal was of the view that if the applicant had genuinely feared for his safety from gangsters in India, he would have actively investigated options to remain in Australia during the period of over a year when he claims to have stayed at home from July 2017 until September 2018. The Tribunal also referred in the adverse credibility findings to the position that when the applicant was detained on 8 September 2018 he did not mention concerns for his safety from gangsters until nearly seven weeks later when he made his protection visa application.

13. The Tribunal concluded that the applicant did not borrow money from gangsters and/or ABVP members with gangster associates in 2016 that he has not repaid. The Tribunal found that the applicant has not received serious threats and his family have not been harassed by such people. The Tribunal found the applicant does not face a real chance of suffering serious harm from gangsters or persons with gangster associates as a consequence of having unpaid debts to the three persons if he returns to India.

14. The Tribunal found the applicant did not meet the criteria under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 7 February 2019. On 6 March 2019, a Registrar of the Court made orders giving the applicant an opportunity to put on affidavit evidence, an amended application and submissions. The applicant did not do so.

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

3. From the bar table, the applicant sought to explain what occurred after he was detained and in relation to the delay in him raising any fear of gangsters. This was one of several adverse factors taken into account by the Tribunal in finding that the applicant was not a credible witness. The failure to mention his fears upon being taken into detention was a logical and rational matter for the Tribunal to take into account in its determination of the applicant’s credibility, and the applicant’s disagreement on this matter does not identify any jurisdictional error.

4. To the extent that the applicant sought to explain the longer period during which he had remained unlawfully in Australia, this was a further factor taken into account in the adverse credibility findings by the Tribunal and was a logical and rational matter for the Tribunal to take into account. The applicant’s disagreement with the adverse credibility findings does not identify any jurisdictional error.

5. The applicant submitted from the bar table that the Tribunal had already decided the matter and did not listen properly to the applicant. No evidence has been put on in respect of any allegation of actual or apprehended bias. The Tribunal’s reasons are consistent with the applicant having a real and meaningful hearing before the Tribunal and the Tribunal raising the relevant issues with the applicant. The Tribunal’s reasons are also inconsistent with the applicant’s proposition that the Tribunal had already decided the matter or did not listen properly to the applicant.

6. There is no part of the Tribunal’s reasons that the applicant suggested inaccurately identified the applicant’s evidence. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. On the face of the material before the Court, there is nothing to suggest that the Tribunal conducted the review with other than an open mind reasonably capable of persuasion as to the merits. No jurisdictional error arises by reason of the applicant’s submissions from the bar table alleging actual or apprehended bias. No such bias is made out.

7. To the extent that the applicant sought to explain the absence of documentary evidence, that was a logical and rational matter for the Tribunal to take into account and it was clearly a matter explored by the Tribunal with the applicant.

8. The applicant’s submissions from the bar table otherwise invited this Court to engage in merits review. This Court has no power to review the merits, nor can this Court determine this matter on compassionate or discretionary grounds. The applicant referred to his current circumstances in terms of being in Australia with his girlfriend and wanting to earn money so that he can repay loans. This Court has no discretionary power to determine the matter. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The application should be considered according to the law.

   2. The decision of the AAT made on 11th January 2019 should be quashed.

   3. The Second respondent decision included the error of the law.

   4. The Second Respondent took in account irrelevant considerations.

   5. The Second Respondent decision was unreasonable.

   6. The decision of the respondent failed meets the refugee law when making the decision.

   7. I believe the tribunal made an error in coming to its decision due to my inability to prepare and present a proper case and therefore a meaningful opportunity to be heard by denying me procedural fairness.

   8. The Second respondent also made an error by finding that I do not engage the protections afforded at s.36 (2) (a) of the act therefore misapplying and misconstrued the s.36(2) (a) and s.36(2)(aa).

   9. The Second respondent has not considered each of the integers of my claims of the serious harm discussed with respects to my claims for refugees protection in the context of the complementary protection criterion regarding the real of significant harm at s.36(2)(aa).

   10. The acknowledged difficulties of preparing and presenting my case I am from a different social, ethnic and cultural background and the difficulties I have with English language. Moreover, I believe the decision maker misinterpreted their obligations to consider representations I made to mitigate my offending behaviour as non-refoulement obligations.

Ground 1

1. In relation to ground 1, the Tribunal’s reasons correctly identified the relevant law and there is nothing wrong on the face of the Tribunal’s reasons to suggest the Tribunal did other than correctly apply the law. No particulars have been provided in support of ground 1. The Court is not satisfied that there was any misconstruction or misapplication of the relevant law by the Tribunal. No jurisdictional error is made out by ground 1.

Ground 2

1. Ground 2 is a bare assertion that the Tribunal’s decision should be quashed and does not identify any basis upon which it could be said that the Tribunal had exceeded its statutory power in the conduct of the review. No jurisdictional error is made out by ground 2.

Ground 3

1. Ground 3 asserts that the Tribunal’s decision erred in law. For the reasons already given, it is apparent that the Tribunal correctly identified the relevant law. No particulars have been provided in support of ground 3 or the basis upon which it is alleged that there was an error of law. The Tribunal’s reasons on their face not only correctly identify the relevant law but are consistent with the Tribunal correctly applying the relevant law. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, the applicant asserts that the Tribunal took into account irrelevant considerations. Nowhere has there been particularised or identified an irrelevant consideration taken into account by the Tribunal. The Tribunal’s reasons on their face are consistent with the Tribunal correctly applying the relevant law and making adverse findings that were open to the Tribunal for the reasons given by the Tribunal. No jurisdictional error in ground 4 is made out.

Ground 5

1. In relation to ground 5, this again is a bare assertion that the Tribunal’s decision is unreasonable, and is devoid of particulars by reason of which ordinarily there could not be said to be any jurisdictional error. Unreasonableness is something that may arise in relation to the conduct, procedure or outcome. The Tribunal in relation to the outcome gave logical and rational reasons, which have been summarised above. There is no proper basis to find that the Tribunal’s decision was legally unreasonable because of the outcome.

2. In relation to conduct, whilst there has been reference by the applicant in relation to alleged difficulty in preparing and presenting his case, no evidence has been put on to support the same. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal, and there is no evidence to suggest any issue was raised by the applicant with the Tribunal in respect of the conduct of the hearing. The evidence shows that the applicant, who has been onshore studying since 2005, can speak, read and write English, and there is nothing to suggest the applicant at any stage requested an interpreter in the course of the review or expressed any difficulty engaging with the Tribunal in the conduct of the review. There is nothing before the Court to suggest that the Tribunal engaged in any legally unreasonable conduct in the conduct of the review.

3. In terms of the procedure, it is apparent on the face of the material before the Court that the Tribunal complied with the statutory requirements in relation to the conduct of the review and had a real and meaningful engagement with the applicant’s claims. There is nothing to support the Court finding that the procedure adopted by the Tribunal was legally unreasonable. No jurisdictional error is made out by ground 5.

Ground 6

1. In relation to ground 6, the applicant complains of the failure by the Tribunal to find that the applicant met the requirements for the protection visa. This on its face is an invitation to this Court to engage in merits review. The Court has no power to do so. The Tribunal considered the applicant’s claims and made adverse findings dispositive of the applicant’s claims, which, for the reasons summarised above, were open. No jurisdictional error is made out by ground 6.

Ground 7

1. In relation to ground 7, the suggestion of an inability to prepare and present the case and be given a meaningful opportunity to be heard is not supported by any evidence. Further, on the face of the material, the applicant proffered an explanation for the absence of documentation in respect of which the Tribunal made adverse credibility findings that were open, logical and rational. On the face of the Tribunal’s reasons, the Tribunal raised with the applicant in the course of the hearing the issues of concern in respect of the applicant’s claims. The Court refers to the applicant’s ability to understand English, as referred to above, and the absence of any issue being raise by the applicant with the Tribunal. The Court finds that the applicant had a proper opportunity to put his case and had a real and meaningful hearing. There is no basis to find that the Tribunal denied the applicant procedural fairness in the conduct of the review. No jurisdictional error is made out by ground 7.

Ground 8

1. In relation to ground 8, this again complains of an adverse finding in relation to the applicant meeting the criteria for the grant of a protection visa and alleges a misapplication or misconstruction of the statutory provisions in respect of refugee status and/or complementary protection.

2. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law both in its reasons and in the attachment to its reasons. Further, it was open to the Tribunal to take into account the adverse findings made by the Tribunal in respect of the applicant’s claims in relation to refugee status in determining whether the applicant met the criteria in respect of complementary protection. There is no basis for the Court to find that the Tribunal misapplied or misconstrued the statutory provisions in s 36 of the Act. No jurisdictional error is made out by ground 8.

Ground 9

1. In relation to ground 9, the applicant complains that the Tribunal did not consider each of the applicant’s claims. No particulars have been identified in respect of an alleged claim that was not considered. Further, for the reasons already given, the adverse findings made by the Tribunal in respect of the applicant’s claims under s 36(2)(a) of the Act as to whether the applicant was a refugee were entitled to be taken into account in the determination of s 36(2)(aa) of the Act. The Court finds that no claim or integer was not taken into account by the Tribunal. No jurisdictional error is made out by ground 9.

Ground 10

1. In relation to ground 10, the applicant alleges difficulty in preparing and presenting his case because of different social, ethnic and cultural backgrounds and difficulties with English. No evidence has been led in support of that allegation and for the reasons earlier given it is apparent that the applicant could speak, read and write English. The Court does not accept that any difficulty with English or that the applicant’s background was raised with the Tribunal. It is not apparent on the face of the Tribunal’s reasons or the material before the Court that there was any issue raised by the applicant in relation to a difficulty in preparing or presenting his case, or a concern as to social, ethnic or cultural issues, or has there been identified the way in which it is alleged the decision-maker misinterpreted their obligations.

2. On the face of the Tribunal’s reasons, the Tribunal took into account the applicant’s explanations and made adverse credibility findings that were open. The Court is not satisfied that the applicant had other than a real and meaningful opportunity before the Tribunal to present his claims and submissions and does not accept that the applicant was prevented from doing so because of any social, ethnic or cultural background or any difficulty with English.

1. Further, the Tribunal’s reasons are consistent with the applicant having a real and meaningful hearing and the Tribunal having a real and genuine engagement with the applicant’s claims and evidence. Ground 10 otherwise is an invitation to this Court to engage in merits review that this Court has no power to do. No jurisdictional error is made out by ground 10.

2. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 31 July 2019