ATO19 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 440

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

ATO19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 440

File number:	MLG 520 of 2019
Judgment of:	JUDGE BLAKE
Date of judgment:	31 March 2025
Catchwords:	MIGRATION – Application for judicial review – unparticularised grounds – no error identified having regard to Application and Applicant’s submissions – Application dismissed.
Cases cited:	WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Number of paragraphs:	33
Date of hearing:	17 March 2025
Place:	Melbourne
Advocate for the Applicant:	Self-represented litigant
Solicitor for the Respondents:	Mr Gardner, Australian Government Solicitor

ORDERS

MLG 520 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ATO19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	31 MARCH 2025

THE COURT ORDERS THAT:

1.The Application filed on 27 February 2019 be dismissed.

2.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.

3.The name of the Second Respondent be amended to ‘Administrative Review Tribunal’.

4.The Applicant pay the First Respondent’s costs of the proceeding, fixed in the sum of $5,400.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BLAKE:

1. This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 4 February 2019. In that decision, the Tribunal affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicant a protection (subclass 866) visa (‘visa’) (Court Book (‘CB’) 93). 

2. For the reasons that follow, I have decided to dismiss the application for review.

   BACKGROUND

3. The Applicant is an Indian national. The Applicant arrived in Australia on 5 July 2016 as the holder of a visitor (Subclass 600) visa (CB 46). He applied for the visa on 26 July 2016 (CB 46).

4. On 7 October 2016, a delegate refused to grant the Applicant the visa (CB 42-54).

5. On 15 October 2016, the Applicant applied to the Tribunal for review of the delegate’s decision.

6. On 20 October 2016, the Tribunal acknowledged receipt of the application for review (CB 58). The Applicant was informed that he should provide any material or written arguments as soon as possible. He was also provided with information for refugee review applicants.

7. On 20 August 2018, the Tribunal wrote to the Applicant and informed him a hearing may be scheduled (CB 64). He was, inter alia, invited to send to the Tribunal any additional evidence as soon as possible.

8. On 29 October 2018, the Tribunal wrote to the Applicant and formally invited him to attend a hearing on 4 December 2018 (CB 66). The Applicant was invited to appear to give evidence and present arguments relating to the issues in his case.

9. On 3 December 2018, the Tribunal advised that the hearing scheduled for 4 December 2018 would need to be rescheduled (CB 76).

10. On 6 December 2018, the Tribunal wrote to the Applicant formally inviting him to attend a hearing on the rescheduled date of 9 January 2019 (CB 78). 

11. On 9 January 2019, a hearing was held at the Tribunal. The Applicant attended the hearing and was assisted by a Punjabi interpreter.

12. On 25 January 2019, the Applicant sent an email to the Tribunal attaching documents from the R.K Clinic (CB 83-88).

13. On 4 February 2019, the Tribunal affirmed the decision not to grant the Applicant the visa (CB 93). On 5 February 2019, the Tribunal notified the Applicant of the decision (CB 92).  

14. The Applicant filed his Application for review in this Court on 27 February 2019 (‘Application’). The Application was accompanied by an affidavit in support sworn 26 February 2019. Despite having an opportunity to do so, the Applicant, who appeared before me unrepresented, did not file any Amended Application or written submissions. The Minister filed written submissions and the Court Book.

    THE APPLICATION FOR AN ADJOURNMENT

15. Toward the conclusion of the hearing before me (after the Minister had completed his submissions), the Applicant sought that the matter be adjourned so that he could adduce further evidence before the Court. I refused the adjournment for the reasons that follow.

16. The Applicant sought the adjournment in order to produce further material in support of his Application before the Court, and also his visa application. The Applicant produced a medical certificate which disclosed that the Applicant suffered from a range of medical conditions. The certificate disclosed that the Applicant had been through a difficult period over 3 to 4 years and that he needed more time in order to adduce evidence in support of his visa application. The application for an adjournment was opposed by the Minister.

17. I refused the adjournment application for the following reasons. First, the Applicant filed his Application in this Court six years ago. He has had all of that time to provide further material. Second, even if I accept at its highest, that the Applicant has been unable to produce evidence because of medical difficulties he has encountered over the last 3 to 4 years, that does not explain why the Applicant, six years after filing his Application, requires further time to produce that material. Third, the medical certificate produced by the Applicant referred to him needing more time to produce evidence in connection with his visa application. The Court cannot grant a visa. The Court is engaged in a process of reviewing the reasons of the Tribunal to ascertain whether it has committed an error based on the material before it. The production of further evidence to support the Applicant’s visa application does not assist the Court with its task. Fourth, case management considerations weigh against the grant of the adjournment. The matter has been in this Court for six years. It has been adjourned twice already. Those adjournments, whatever the reasons, deprived the Court of listing another case before it. A further adjournment will lead to a further hearing in this matter which will take the place of another matter that is ready to proceed. That is a situation to be avoided having regard to the notoriously long backlog of migration review proceedings in this Court. For these reasons, the adjournment was refused.

    THE DECISION OF THE TRIBUNAL

18. In its decision, the Tribunal:

    (a)set out the criteria for the grant of a protection visa at paragraphs [6]-[9] of its reasons (‘Reasons’);

    (b)set out the Applicant’s claims for protection as contained in his protection visa application of 26 July 2016 at [14] of the Reasons. Those claims included claims that when he came to Australia on a tourist visa, his wife told him that his uncle had tried to sell his land in India, that ‘we’ went to the police station to file a case against the uncle, that his uncle’s son is in the Indian police and that no complaint was lodged in the register and he was sent back to his house to resolve the matter verbally, that his uncle had links to the ruling party in Punjab (SAD) and that as a supporter of the AAP, he had been threatened if he did not vote for the SAD, that he has threats to his life from his uncle and his uncle’s criminal friends, that he has no faith in the police who are corrupt, and that living in Australia is safe for him and his family in India;

    (c)noted that the Applicant had left Australia in 2017 to holiday in Thailand with his wife and two sons, who had then returned to India (at [17]);

    (d)noted that the Applicant provided an oral account of the dispute with his uncle at [19] of the Reasons. The Applicant’s account to the Tribunal was that his uncle forcibly took his land in 2015 by falsely registering his land and putting a wall or fence around it, that he went to inspect the wall and was confronted by his uncle and his uncle’s criminal associates, that he was abused and assaulted, including being slashed on the arm with a sword;

    (e)noted the Applicant claimed he sought medical treatment for his injuries, and also reported the matter to the police, however, the police took no action (at [20]);

    (f)provided the Applicant with 21 days to provide evidence or other documentation, and noted that the Applicant produced three prescriptions from the R.K Clinic in India dated January 2015 which referred to injuries to his upper arm (at [22]);

    (g)found at [27]-[28] that the Applicant had made no reference in his written statement to the circumstances that precipitated the property dispute with his uncle i.e. his uncle’s seizure of the land and building of a wall around it, or to the assault and injury he suffered from a blow with a sword;

    (h)noted at [29] that the Applicant claimed in his written statement that his wife had contacted him after his arrival in Australia in July 2016 to tell him of the property issues with his uncle, and also noted that the Applicant had come to Australia with an interest in tourism. The Tribunal therefore observed that at the time the Applicant made his written statement for protection, he made no claim to have left India on account of a fear of harm arising from the property dispute or the assault he suffered in 2015;

    (i)noted at [30] that the Applicant provided no credible account of, or rationale for, the inconsistencies between his written statement and his oral evidence to the Tribunal;

    (j)recorded it informed the Applicant it found his evidence not to be credible, and gave him time to provide further evidence (at [31]);

    (k)considered at [32] that the inconsistencies in the Applicant’s evidence seriously undermined his credibility, and stated further at [33] that the various factors identified suggest that the Applicant is not credible and that his oral evidence ‘has been concocted in an effort to support his application for a protection visa;

    (l)assessed the medical documentation from the R.K clinic provided by the Applicant and noted that the documents only described the injuries sustained and do not analyse or identify the cause of the injury (at [34]). The Tribunal noted that on the basis of the Applicant’s written and oral evidence, it gives his claim to fear harm on the basis of a property dispute with his uncle little weight;

    (m)noted that on the basis of the evidence before it, it gives the Applicant’s claim to fear harm on the basis of political opinion between himself and his uncle little weight (at [35]);

    (n)found that the Applicant would not face harm should he return to India (at [36]), that he does not have a well-founded fear of persecution should he return to India, and that he is not a refugee (at [38]);

    (o)considered whether the Applicant satisfied the criteria for complementary protection and concluded that there was not a real risk the Applicant will suffer significant harm and that he was not a person in respect of whom Australia has protection obligations (at [42]); and

    (p)affirmed the decision under review.

    THE APPLICATION

19. The Grounds of Review in the Application are as follows:

    1.The decision maker failed to apply the rules of procedural fairness.

    2.The member in deciding the matter under review, failed to consider all relevant information and considerations.

    3.The member made an error in law and fact.

    4.The member failed to consider the reason for the separation of the Applicant from his family and two children.

    5.The member failed to give weight to the fact that the applicant's wife and their two children were at all times in India and the only way to see his children and wife to arrange a meeting outside India.

    6.The member fail to see the strong ties the applicant has with his family.

    7.The member has interpreted and construed the facts incorrectly, leading to an incorrect decision. By alliance to a certain political party the applicant is in danger wherever he goes in India.

    8.The Tribunal did not give weight to the injuries suffered by the Applicant and the background to it.

    9.If all relevant considerations were taken into account the applicant would be granted a visa.

20. In his supporting affidavit, the Applicant states at paragraphs [5]–[9] that:

    5.I say that the decision maker has erred in law and fact and has failed to apply the rules of procedural fairness in coming to his decision.

    6.The tribunal member in deciding the review, failed to consider all relevant considerations, including the fact that I suffered injuries and my life will be in danger if I am to return to any part of India ..

    7.The member failed to take all relevant considerations into account in reaching his decision including that I can only see my family, wife and two children outside India, for fear of my safety.

    8.The member's decision is erroneous as he fails to see the reason I suffered injuries and the circumstances surrounding the incident.

    9.The member has failed to see why I separated from my family despite having young children.

21. Before me, the Applicant recounted that he provided certificates that disclosed the injuries he sustained, that he did visit the police and that they did not register his complaint. He explained that there was pressure on him, and he was fearful. By these submissions, the Applicant effectively invited the Court to reconsider his claim on the merits. That is not a course that is open to the Court.

22. Before me, the Applicant also claimed that the Tribunal failed to consider that he was ‘beaten’. A review of the Tribunal’s decision discloses that submission not to be correct. The Tribunal referred to the assault on the Applicant at paragraphs [19], [20], [21] and [22] of the Reasons.  At paragraph [28] of the Reasons, the Tribunal noted that the Applicant did not claim to have been assaulted in his written statement. At paragraph [30], the Tribunal observed that the Applicant provided no credible account of, or rationale for, the inconsistencies between his written and oral evidence, nor did he provide a credible account or rationale for his failure to provide any evidence regarding the alleged assault and his injuries in the subsequent two years in which his application had been before the Tribunal for review. At paragraph [31] of the Reasons, the Tribunal advised the Applicant that it did not find his account of the alleged incident in January 2015 to be credible. Ultimately, the Tribunal found the Applicant’s claims not to be credible at [33]-[36] its Reasons. Clearly then, the Tribunal dealt with the Applicant’s claims that he was beaten, but found them not to be credible.

23. I now turn to deal with the Grounds of Review. I asked the Applicant whether he wished to address any of the Grounds of Review set out in his Application. He indicated he did not wish to. I therefore deal with the Grounds of Review as they are set out within the Application.

24. At the outset, I note that a number of the Grounds of Review are not particularised, and the Applicant did not expand upon them in the hearing. The failure to particularise the Grounds is a sufficient basis upon which to dismiss the Application: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

25. Ground One asserts a failure by the Tribunal to apply the rules of procedural fairness. The Applicant has not identified how he was not afforded procedural fairness. A review of the Tribunal file discloses that the Applicant was, inter alia, informed on at least three occasions prior to the hearing that he had the opportunity to submit evidence. He was properly invited to attend a hearing before the Tribunal. During the hearing, he was advised that the Tribunal did not find the account of his claims to be credible, and he was given an opportunity to provide further evidence and submissions. The further evidence submitted by the Applicant was considered by it. In the circumstances, the Applicant has not been denied procedural fairness. 

26. In Ground Two, the Applicant says that the Tribunal failed to consider all relevant information. In Ground Three, the Applicant says the Tribunal made an error in law and fact. Neither of these Grounds are particularised and neither can succeed in their present form. To the extent the Applicant may claim that these Grounds relate to the Tribunal’s alleged failure to consider his claim to have been assaulted, I rely on my earlier findings. 

27. Grounds Four to Six assert various matters relating to the Applicant’s family. In respect of the subject matter of these Grounds, the Court notes the following. First, the Tribunal was aware the Applicant’s wife and two sons resided in India and that his younger brother and parents resided in Australia (see Reasons at [17]). Second, it is not clear how the matters contained in these Grounds relate to, or are relevant to, the Applicant’s claims for protection. There is no evidence that the matters the subject of these Grounds were advanced by the Applicant as a claim or arose squarely from the material. Third, by raising these Grounds, the Applicant appears to be inviting the Court to consider his family circumstances in determining whether the matter should be remitted to the Tribunal. To the extent that is what is occurring, the Court cannot proceed down that path.

28. In Ground Seven, the Applicant asserts a failure to interpret or construe the facts correctly. Exactly what fact has been misinterpreted or misconstrued is not identified. The claim that the Applicant was a member of a political party (that was different to that of his uncle) was advanced and considered by the Tribunal (see Reasons at [35]). No error is disclosed by this Ground.

29. Ground Eight takes issue with the Tribunal’s treatment of the Applicant’s injuries. The Applicant contends the Tribunal gave insufficient weight to his injuries. With respect to this matter, I note the following:

    (a)the Tribunal recorded the Applicant’s claim to have been injured following an assault at [19] of the Reasons, and his claim to have sought medical attention following the injuries at [20] of the Reasons;

    (b)the Tribunal at [22] of the Reasons, afforded the Applicant an opportunity to provide medical documentation in relation to his injuries;

    (c)the Tribunal received the medical documentation from the Applicant after the hearing and considered it: Reasons at [22], [28], [29], [30];

    (d)the Tribunal advised the Applicant that it did not find his account of the incident leading to his injuries credible and he was afforded the opportunity to present further evidence at [31] of the Reasons; and

    (e)the Tribunal considered that the Applicant’s failure to mention his alleged assault in his written statement seriously undermined the credibility of his claims at [32] of the Reasons.

30. The above discloses that the Tribunal considered the Applicant’s claim about his injuries. The weight that the Tribunal places on the evidence before it, is a matter for it. Ultimately, the Tribunal found the Applicant’s failure to mention his injuries in his written statement undermined, inter alia, the credibility of his claims. That conclusion was open to the Tribunal. Accordingly, this Ground of Review cannot succeed.

1. In Ground Nine, the Applicant contends if all relevant considerations were taken into account, he would be granted the visa. The Applicant has not identified what considerations ought to have properly been taken into account that were not. This Ground is unparticularised and cannot succeed.

2. For all of the above reasons, none of the Grounds of Review are upheld. The Application must be dismissed.

   CONCLUSION

3. The Applicant has been entirely unsuccessful. The Minister seeks costs, fixed in the amount of $5,400. Given the Applicant’s lack of success, the Applicant will be ordered to pay costs of $5,400 to the Minister.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       31 March 2025