BBI15 v Minister for Immigration

[2015] FCCA 3047

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBI15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3047

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – show cause hearing – whether Tribunal failed to give applicant clear particulars of information the Tribunal considered would be part of the reason for affirming the decision under review – whether Tribunal properly considered documentary evidence – whether Tribunal erred in giving no weight to certain documents – no arguable jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12

Applicant: BBI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1645 of 2015

Judgment of: Judge Street

Hearing date: 13 November 2015

Date of Last Submission: 13 November 2015

Delivered at: Sydney

Delivered on: 13 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary
DLA Piper

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.  

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1645 of 2015

BBI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 25 May 2015 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of India and his claims were assessed against that country.  The applicant was issued with a valid passport on 15 October 2009 which, on its face, remained valid until 14 October 2019.  The applicant arrived in Melbourne Australia on 13 October 2013 as a holder of a business visitor visa, subclass 600, granted on 16 August 2013 which was valid until 13 January 2014.  The applicant applied for protection on 27 November 2013.

3. The applicant claimed a fear of harm being a Hindu and an active member of the Bharatiya Janta Part (the BJP) and the Student Federation Akhil Bharatiya Vikdyharthi Parishad (ABVP) and claimed to fear harm in India from Muslim extremists and members of the Muslim community due his religious and political involvement and claimed he had been attacked and threatened by Muslim extremists in the past and as a result of his membership of the BJP and ABVP.

4. The Tribunal did not accept the applicant’s evidence as credible and gave logical reasons to support that finding.  Those reasons cannot be said to lack an evident and intelligible justification.  The reasons include a reference to a document to which the Tribunal decided to give no weight and relevantly said:

   29. The document claiming that he was the Vice President of Youth Wing of “Bharathiya Janatha Yuva Morcha Nileshwar Municipal Committee since 2009, is dated 4 October 2013.  On its face, the document is claiming that he held that position for about four years from 2009 and is not consistent with the applicant’s claims that he held the position for 18 months in 2008-2009. He specifically said that after 2011 he was busy with work and his family said to look after his family and his work first.  The Tribunal does not accept his explanation for the inconsistency between the document and his evidence, that is, that he continued to hold the position but was not active.

   30. Further, on the letterhead of the document and in its body, “Janata” is mis-spelt. That is inconsistent with the document being genuine.  It is also the same mis-spelling that appears in his statement that accompanied his visa application.  The Tribunal accepts the applicant’s evidence that he prepared his visa application without assistance.

   31. The Tribunal gives the document no weight.

   32. The Tribunal does not accept the applicant’s claims at the hearing to have kept to himself or to have hidden in Mysore and Chennai, that he was attacked but escaped in Mysore and that it also happened in Bangalore where he had gone for training related to his work.  That was the first time he had mentioned Bangalore at all.  He had made no claims about anything happening in Mysore before, including at the departmental interview, as reflected in the summary in the delegate’s decision provided to the Tribunal.

   33. He claimed at the hearing that he had changed rooms with friends and did not tell anyone where he worked in Chennai, that people had come to his old house and he had run away.  His claim in his visa application about fundamentalist leaders sending a gangster to kill him, being cruelly attacked and left in the bush, and spending 10 days in hospital is inconsistent with his claims at the hearing The Tribunal does not accept that he would have forgotten to mention an incident which resulted in his spending ten days in hospital.

   34. For those reasons, the Tribunal does not accept the applicant’s claims about his membership of any political group in India or his involvement in political activities in India or that he has been threatened or harmed for those reasons or because of his or his family’s religion or religious or political activities, by Moslem fundamentalists, MSF, criminals or anyone else, in India.  It does not accept that he has been threatened in Australia or lost jobs because of claims made to his employers that he is working for the BJP or because of his religious or political affiliation or activities. It does not accept that he will be involved in any political or religious activities in India if he returns or will be harmed because of his religion or perceived political opinion if he returns to India.  It does not accept that any member of his family has been threatened or harmed because of his or their actual or perceived political or religious affiliation or activities.

   35. Because the Tribunal does not accept that the applicant’s evidence is credible, and does not accept his claims about his or his family’s political or religious activities or his or their perceived political or religious affiliations  or the consequences of those activities or perceived affiliations in the past or in the future, it does not accept that there is a real chance that the applicant will suffer serious harm or that there is a real risk that the applicant will suffer significant harm, if he returns to India because of his or his family’s religion or  actual or perceived political affiliation or activities.

   36. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to India.

   37. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   38. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

   39. For the above reasons, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to India, there is a real risk that he will suffer significant harm.

5. That finding by the Tribunal as to the weight to be given to the document was a matter for the Tribunal and the reasoning identifies no logical or rational error.

6. Relevantly, the Tribunal did not accept the applicant’s evidence as being credible and rejected his claims about his or his family’s political/religious activities.  The Tribunal rejected the alleged political/religious affiliations or the consequences of those activities or perceived affiliations in the past or in the future. The Tribunal did not accept that there is a real chance the applicant will suffer serious harm or that there is a real risk the applicant will suffer significant harm if he returns to India because of his or his family’s religion or actual perceived political affiliation or activities.  The Tribunal made express findings rejecting the applicant’s claims in this regard in para.34.

7. It was in those circumstances that the Tribunal found that the applicant was not a person in respect of whom Australia had a protection obligation and that the criteria under ss.36(2)(a) and 36(2)(aa) was not satisfied.

8. On 13 July 2015, a Registrar of this Court made orders fixing the matter for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 and also provided an opportunity for the applicant to file an amended application, affidavit evidence or submissions.  No such documents were filed.

9. The grounds of the application are as follows:

   1. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

   2. The Tribunal constructively failed to exercise its jurisdiction;

   Particular:

   The applicant provided membership certificate to the delegate to corroborate his claims. The delegate and Tribunal ultimately gave the document no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the document corroborated his claim.

   3. The Tribunal's decision was unjust and made without taking in to account the full gravity of Applicant's circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Muslim extremists.

10. In relation to the first ground, no information to enliven an obligation under s.424A is identified and it is clear from the Tribunal’s reasons that it was on grounds of credibility in relation to the applicant’s evidence that the decision under review was affirmed.

11. I accept the first respondent’s submission that there is no information identified capable of enlivening any obligation under s.424A or any ground on which the Tribunal was required to meet the requirements of s.424AA of the Act.  I accept the first respondent’s submission that ground 1 fails to disclose any arguable jurisdictional error.

12. In relation to ground 2, it is clear that the Tribunal identified the applicant’s claims and made findings on those claims, taking into account the applicant’s evidence.  It was a matter for the Tribunal whether or not to accept the evidence and documents provided by the applicant and the reference to the membership certificate that was referred in paras.29 and 30, quoted above, to which the Tribunal gave no weight, does not identify any arguable case of a constructive failure of the Tribunal to exercise its jurisdiction.  Further, it was a matter for the Tribunal to determine the applicant’s credit.  I accept the first respondent’s submission that ground 2 fails to identify any arguable jurisdictional error.

13. In relation to ground 3, it is clear that the applicant was invited, by letter dated 16 March 2015, to attend a hearing on 20 May 2015 and that the applicant did attend that hearing to give evidence and present arguments and was assisted by an interpreter.  It was a matter for the Tribunal to evaluate the applicant’s claims and make findings in that regard and it is clear that the Tribunal took into account, as part of the applicant’s claims, his alleged fear of Muslim extremists which were the subject of adverse findings in paras.34 and 35.

14. Accordingly, there is no substance in the proposition that the Tribunal’s decision was unjust or was made without taking into account the applicant’s evidence and submissions.  I accept the first respondent’s submission that ground 3 fails to disclose any arguable jurisdictional error.

15. The applicant raised, from the bar table, the document referred to in paras.29 and 30 above which, for the reasons given, it was open to the Tribunal to determine to give that document no weight.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

16. The application fails to disclose any arguable case. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 November 2015