AOT16 v Minister for Immigration

[2017] FCCA 1393

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOT16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1393

Catchwords:
MIGRATION – Application for Protection visa – claims considered by the Tribunal – adverse credibility finding – finding that the applicant had applied for numerous visas to extend his stay in Australia – no jurisdictional error or denial of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424AA

Applicant: AOT16

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 537 of 2016

Judgment of: Judge McNab

Hearing date: 7 June 2017

Date of Last Submission: 7 June 2017

Delivered at: Melbourne

Delivered on: 7 June 2017

REPRESENTATION

The Applicant In Person

Counsel for the Respondent: Mr Cunynghame

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed 17 March 2016 is dismissed.

2. The Applicant pay the Respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 537 of 2016

AOT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

Delivered ex-tempore

1. On 17 March 2016, the applicant filed an application to this Court seeking review of a decision of the Tribunal dated 12 February 2016. The grounds of review in the application are that the:

   (1) MRT took account of irrelevant considerations;

   (2) MRT erred at law;

   (3) Immigration/MRT failed to take account of relevant considerations.

2. The applicant appeared before the Court today. He was asked if he had anything he wished to add or any submissions that he wished to make in relation to the grounds of appeal set out, and he declined to do so. At the conclusion of the oral submissions made by the representative for the respondent, he made a comment to the effect that he does not want to leave Australia; that he is well settled here; that things had gone downhill for him when he relied on a lawyer in relation to a Skilled visa. I presume that he is referring to a Skilled visa which was refused on the basis that it was said that the applicant had provided false and misleading information in relation to a skills assessment in 2012.

3. The applicant has not filed any amended application and has provided no submissions in support of his application.

Background

1. The decision of the Tribunal is detailed and comprehensive. The Tribunal at [26] – [30] sets out the background to the application. The applicant’s migration history is a relatively long one.

2. The applicant arrived in Australia on 6 April 2008 on a Student (subclass 573) visa for tertiary studies. The applicant’s education provider advised the applicant’s enrolment was cancelled. His fees were not paid and the applicant ceased his studies on 8 November 2011.

3. On 22 September 2011, the applicant lodged an application for a Skilled (subclass 485) visa, nominating his occupation as cook. On 14 April 2012, the application for the Skilled visa was refused as the applicant had provided false and misleading information in relation to his skills assessment.

4. On 12 December 2011, the applicant applied for and was granted a Bridging visa B, which allowed him to travel to India to visit his parents during the period, 28 January 2012 to 7 March 2012.

5. On 21 March 2013, the applicant lodged an application for a Permanent Work Residency visa.  The associated nomination was approved on 26 November 2012. On 2 September 2013, the application for the subclass 186 visa was withdrawn. 

6. On 23 October 2013, the applicant submitted a request for Ministerial intervention in relation to the Skilled visa, which was refused and the applicant was sent a notification of the request’s outcome on 22 April 2014.  

7. On 7 May 2014, the applicant lodged a Class XA (subclass 866) Protection visa which was deemed to be invalid as the applicant did not provide personal identities as requested. 

8. On 22 June 2014, a company called the Armitage Family Trust applied for a business sponsorship nomination in relation to the applicant.  The delegate did not accept the position associated with the nominated occupation was genuine.

9. On 21 July 2014, the applicant lodged another Protection visa application which was deemed to be valid and a bridging visa was granted. 

Tribunal’s decision and consideration

1. In the Protection visa application lodged on 21 July 2014, the Tribunal correctly held that the claims for protection were limited and vague.  The only detail was that the applicant said there were two things – politics and the money lender – that stopped him from returning to India.

2. Paragraph 31 of the Tribunal’s decision accurately sets out the claims for protection as they were then set out in court book at pages 51 to 66.  The Tribunal considered the documents that had been submitted to it in support of his claims in relation to the claims that he feared money lenders and politics.[1] The Tribunal also considered the oral evidence given at the hearing by the applicant in relation to the money lending claims.

   [1] Tribunal decision dated 12 February 2016, [34]-[41].

3. The Tribunal noted that at the hearing that the applicant had also raised a claim that he would suffer genuine fear and risk of harm as a result of his homosexuality.  The Tribunal considered those claims in detail, questioned the applicant in relation to them and also considered country information which was provided by both the applicant and which the Tribunal had available to it. 

4. The Tribunal found in relation to all the claims made for protection that the claims lacked credibility and set out its reasons for doing so in detail. In relation to the claims about fear relating to money lenders, the Tribunal found that the applicant gave vague and limited evidence with respect to his claims pertaining to money lenders,[2] and in particular, found that the applicant could not provide any names of the money lenders which the Tribunal found implausible, noting the applicant’s claims that money lenders would bribe officials in other states to find him.[3]

   [2] Ibid [99]-[101].

   [3] Tribunal decision dated 12 February 2016 [102]-[104].

5. The Tribunal found that the applicant gave inconsistent evidence with respect to who he owed money to and how his family were involved.[4]  On the basis of adverse credibility findings, the Tribunal did not place any weight on documentary material provided by the applicant in support of his claims in relation to the fear of money lenders. 

   [4] Ibid [105].

6. In relation to the applicant’s claims in relation to fear based on homosexuality, the Tribunal found that the applicant was not a witness of truth in relation to his claims of fearing harm for this reason.

7. The Tribunal put adverse information to the applicant pursuant to s.424AA of the Migration Act 1958 (Cth).[5] In particular, the Tribunal said pursuant to s.424AA, the applicant was asked about information recorded by the Department on 8 May 2014 outlining the applicant raised the matter of applying for a partner visa with a woman with whom he had been in a romantic relationship for at least eight months. He did not deny the accuracy of the record; however, he explained that he was encouraged to pay a woman to sponsor him as a Partner visa applicant at the time of the recorded conversation.

   [5] Ibid [114].

8. The Tribunal went on to explain why it found that the applicant had not been a reliable witness of truth and that affected the Tribunal’s decisions in relation to the claims raised by the applicant. 

9. The Tribunal also took into account the applicant’s visa history which has been outlined earlier, the delay in making the Protection visa application and the effect that that had on credibility.

10. The Tribunal did not accept that his migration agent was responsible for providing fraudulent documents in relation to his skilled visa application. The Tribunal found that he fraudulently applied for a Skilled visa and appealed the refusal decision to extend his stay in Australia. The Tribunal found that his visa history indicated he applied for the visa to extend his time in Australia.[6] 

    [6] Tribunal decision dated 12 February 2016 [126]-[129].

11. Having reviewed the decision of the Tribunal, I can discern no error in relation to the findings.  The applicant was frank before the Court when he stated that he “does all this”[7] because he wants to stay in Australia.  He explained that he is working as a chef in a good position and has been in Australia since he has been aged about 17 and does not wish to leave here and he is well settled here. I can fully understand those sentiments and I can understand why the applicant would wish to remain here in a good job. 

    [7] The applicant’s words.

12. However, those considerations do not affect the decision I have to make and that is that the court can discern that there is no jurisdictional error in the decision of the Tribunal and that the applicant has been afforded procedural fairness. In those circumstances, I dismiss the application. 

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

Associate:  

Date:  21 June 2017