AQN17 v Minister for Immigration

[2018] FCCA 1321

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQN17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1321

Catchwords:
MIGRATION – Visa – protection visa – where grounds do not identify basis of jurisdictional error – where application amounts to request for impermissible merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 116, 425 and 425A

Migration Regulations 1994 (Cth), Schedule 2

Cases cited:

CNN15 v Minister for Immigration & Border Protection [2017] FCA 579

WZAVW v Minister for Immigration & Border Protection [2016] FCA 760
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: AQN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 55 of 2017

Judgment of: Judge Heffernan

Hearing date: 8 May 2018

Date of Last Submission: 8 May 2018

Delivered at: Adelaide

Delivered on: 4 June 2018

REPRESENTATION

The Applicant: In person with an interpreter

Solicitors for the Respondents: Ms N Milutinovic for Sparke Helmore Lawyers

ORDERS

1. The application filed 16 February 2017 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, FIVE HUNDRED DOLLARS ($5,500).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 55 of 2017

AQN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is an application for constitutional writs against a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 23 January 2017. That decision affirmed an earlier decision made by a delegate of the Minister refusing to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant has raised two grounds as follows:

   “1.I have serious and life threatening circumstances and will lose my life if ever I go to India.

   2.The member did not understand my situation properly and gave decision without understanding the circumstances and thus fall in jurisdictional error.”

   (Re-produced verbatim)

3. The applicant appeared before me unrepresented and with the assistance of an interpreter in the Punjabi and English languages.

4. On 17 March 2017, a Registrar of the Court gave the applicant leave to file any amended application and supporting affidavit by 12 May 2017.  The applicant was also given leave to file and serve such other material, including transcript of the proceedings before the second respondent, if he chose to rely on such materials at the final hearing.  The applicant was also ordered to file and serve an outline of submissions 14 days prior to the hearing. 

5. The applicant has not filed an amended application and has not filed any further materials, including an outline of submissions.  The procedural background to this matter, as well as the applicant’s circumstances, are not subject of any significant dispute, and I have paraphrased those matters as summarised in the outline of the first respondent.

Background

1. The applicant is an Indian citizen and arrived in Australia in June 2008.  At that time he was a dependent on his then-wife’s student visa.  Once that visa expired, he held a further Temporary Graduate visa and a Temporary Work (Skilled) visa, on both occasions as a dependent of his then-wife.

2. The applicant and his wife separated on 18 October 2013. As his visa was dependent upon his relationship with his wife, the Department issued the applicant with a Notice of Intention to Consider Cancellation, made under s.116 of the Act. A decision was made by the delegate of the Minister to cancel the applicant’s Temporary Work (Skilled) visa upon 7 March 2014.

3. As a consequence, the applicant applied to the Migration Review Tribunal (‘the MRT’) for review of the delegate’s decision to cancel that visa.  He did not attend at a hearing before the MRT and, on 4 August 2014, it affirmed the delegate’s decision to cancel the visa.  On 18 September 2014, the applicant applied for a protection visa, and it is that visa and the subsequent affirmation by the Tribunal of the delegate’s decision to refuse it, that is the subject of these proceedings.

4. On 30 November 2015, the delegate refused to grant the applicant the protection visa.  The basis of the refusal of the delegate was that the delegate was not satisfied that the applicant’s claims were credible and that they lacked evidence and supporting information.  The applicant then applied to the Tribunal for a review of the delegate’s decision refusing the protection visa.  The Tribunal conducted a hearing on 3 November 2016, at which time the applicant attended to give evidence and present arguments.[1]  After the hearing, the applicant took the opportunity of submitting supporting documents to the Tribunal, and they were received on 3 November 2016.

   [1]     Court Book (‘CB’) pp 93 to 95.

5. The basis of the applicant’s claim for a protection visa was that since his arrival in Australia he had been receiving threatening telephone calls from his in-laws who live in India.  He claimed that his in-laws had made false allegations against him accusing him of mistreating, bullying and sexually assaulting his ex-wife.  The in-laws apparently also allege that he had taken money from a dowry and bought property in India which belongs to his ex-wife.  He claimed that his in-laws had threatened to kill him if he returned to India.  He further claimed that the authorities would not protect him and that he could not trust them.  In part, this seems to have been because he claimed that his in-laws had connections in India and were wealthy.

Tribunal Hearing

1. The Tribunal accepted that the applicant had travelled to Australia as a dependent on his ex-wife’s visa.  It also accepted the fact of his separation from his ex-wife in about October of 2013 and their later divorce in January 2015.  It noted and accepted that the breakdown of their relationship appeared to have been the cause of the legal disputes between the applicant, his family, and his ex-wife’s family.

2. The Tribunal was satisfied on the evidence before it that the legal proceedings initiated against the applicant by his ex-wife’s family had been discontinued.  The Tribunal found that the applicant did not personally own any property in India and that the relevant property in India was in his parents’ name.  For that reason, it did not accept that his ex-wife’s family would take legal action against him to sign over the property into his daughter’s name.[2]

   [2] CB p 110 at [49].

3. The Tribunal accepted that, whilst the applicant had been charged with serious offences allegedly committed against his wife, he had been acquitted of those charges in August of 2015.  It accepted that the applicant’s father-in-law had made accusations against him of mistreating, bullying and sexually assaulting his ex-wife and that the applicant had received threatening phone calls from his ex-wife’s family.  The Tribunal found that, given his ex-wife had obtained Australian citizenship and employment here, his father-in-law had ceased to have any grievances against him and that the ex-wife’s family have not had any contact with him since 2015.[3]

   [3] CB pp 110 at [50].

4. Having considered the applicant’s evidence at the Tribunal hearing, it found that he did not want to return to India because he preferred to live in Australia and obtain work and accommodation so that he could have a relationship with his daughter.[4]  The Tribunal found that the applicant feared persecution due to a family dispute and not for reasons of his race, religion, nationality, membership of a particular social group, or his political opinions.[5] 

   [4] Ibid.

   [5] CB p 110 at [54].

5. The Tribunal considered the fact that the relevant convention nexus could be satisfied if there was discriminatory failure of state protection attributable to one of the five Convention reasons.  For that reason, the Tribunal proceeded to consider relevant country information on the topic of state protection in India.  Having had regard to that information, the Tribunal found that there was no evidence that the applicant or his family had been denied protection by the authorities in India in the past. 

6. It was also satisfied that they had been able to access legal representation in the past and that the legal proceedings brought against them in India had been discontinued.  The Tribunal was satisfied that the country information, taken as a whole, did not support the finding that the applicant faced a real chance of the discriminatory and systematic withholding of state protection for any reason identified under the Refugees Convention.[6]  For that reason, the Tribunal concluded that the applicant did not satisfy the refugee criterion.

   [6]     CB p 110 at [56]-[60].

7. The Tribunal then proceeded to consider the complementary protection criterion.  In light of that, as I have already noted, it indicated that it accepted the applicant’s father-in-law had accused him of mistreating, bullying and sexually assaulting his ex-wife.  It also found it to be relevant that the legal proceedings between the applicant and the in-laws had been discontinued, that there had been no threats since that time, and that no one, either the applicant or his family, had been subject to any harm at the hands of the in-laws.

8. In that regard, the Tribunal also noted that the evidence of the applicant as to the threats made by his father-in-law were unclear and vague.  The Tribunal also found it to be a significant matter that, notwithstanding the threats that he claimed he had been subjected to, he did not apply for a protection visa until he had exhausted all other migration options.[7]  The Tribunal concluded that the applicant would not face a real risk of significant harm on return to India and accordingly that he did not satisfy the complementary protection criterion.

   [7]     CB pp 112 to 113 at [67]–[73].

Submissions

1. The applicant made brief submissions before me.  To a significant extent, those submissions simply attempted to summarise and repeat matters of which he had informed the Tribunal of at the time he gave evidence.  He told the Court that his former wife and his daughter are citizens of Australia.  He complained that his wife had not permitted him to have any contact with his daughter.  He repeated that he had told the Tribunal that he was getting a lot of unwarranted calls from India and that they were inappropriate.  He reminded the Court that there had been an issue of property between himself and his ex-wife.  He said that his wife had tried to get property from him that was situated in India.  He indicated that that was not much of a concern at the moment because it is no longer being sought. 

2. He told the Court that his ex-wife’s father had submitted false dowry cases against him in India.  He reminded the Court that his wife had made allegations of sexual assault against him, which he says were false and of which he was acquitted when they were living in Darwin.  He acknowledged that he was not living with his wife at the time of the Tribunal hearing.  He said that, at about the time of their divorce, his wife had threatened him that if he did not sign divorce papers, she would make complaints to the police.  In all of the circumstances, he told the Court that he would not feel safe if he were required to return to India.

3. Ms Milutinovic, for the first respondent, submitted that ground 1 of the application was simply not a proper ground of review.  It did not identify any species of jurisdictional error.  Rather, it was a complaint about the outcome of the review itself, which was not a matter which came within the jurisdiction of this Court.  With respect to the second ground, the Minister submitted that this was simply a request for a review of the merits of the decision. 

4. Ms Milutinovic submitted that the Tribunal properly identified the claims of the applicant[8] and that it engaged in an active intellectual process in considering his evidence.  In this regard, it was submitted that the Tribunal discussed his claims with him at some length.[9]  Further, the Minister submitted that the Tribunal had complied with its obligations to conduct a hearing and all aspects of procedural fairness. In the circumstances, it was submitted that the Tribunal’s finding was open to it and that the applicant had not pointed to any error on the part of the Tribunal.

   [8]     CB, p 108, Decision Record at [30]-[31].

   [9]     CB, p 109, Decision Record at [36], [39], [40], [42] and [44].

Consideration

1. The grounds of application do not identify any form of jurisdictional error.  Further, the submissions made by the applicant did not identify any particular error of which he complained.  Rather, the entire thrust of the applicant’s submissions was to repeat those matters and topics he had already raised with the Tribunal, and complain that he would be at risk of harm if he were to return to India.  In circumstances where grounds are deficient for a lack of particularity, which leaves them not identifying any jurisdictional error, an application can be dismissed on that basis alone.[10]

   [10]    CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [21]; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

2. It is apparent from both the grounds of application and the submissions made by the applicant that he is making a complaint about the factual findings made by the Tribunal.  He disagrees strenuously with the outcome of his hearing.  In that respect, the comments of the Court in the decision of NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [11]seem apposite to this case:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants' case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

   [11] [2004] FCAFC 10 at [10].

3. Ground 2 amounts to a request for an impermissible merits review. Given that the applicant is unrepresented, I have considered the process adopted by the Tribunal. I am satisfied that it identified correctly the criteria for a protection visa as set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).[12]  To the extent that ground 2 can be interpreted as a complaint that the Tribunal failed to properly consider his claims or any integer of them, I reject that contention.

   [12]    CB p 106 at [4]-[8].

4. The Tribunal does appear to have engaged in an active intellectual basis with respect to the claims made by the applicant.  It appears to have correctly identified those claims.  It questioned him about the nature of his claims and provided an opportunity for him to respond.

5. I am satisfied that the Tribunal complied with its procedural fairness obligations under Part 7, Division 4 of the Act. It invited the applicant to attend at a hearing before it to present arguments and give evidence, and it gave him the opportunity to attend the hearing. In that regard, it complied with ss.425 and 425A of the Act. The determinative issues relating to the review must have been known to the applicant because they were identified in the delegate’s decision, and those very issues were discussed with the applicant during the course of the Tribunal hearing. I am of the view that the Tribunal gave the applicant a meaningful opportunity to present arguments and give evidence.

6. I am not able to identify that the Tribunal committed any jurisdictional error in the manner of conducting the hearing or in concluding that it should affirm the decision of the delegate.  The findings it made were open to it.

7. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date: 4 June 2018

CORRECTIONS (10 July 2018)

1. Cover sheet and Orders: Page 2 – Solicitors for the Respondents – delete “the Australian Government Solicitors” and insert “Sparke Helmore Lawyers”