BGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 298

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 298

File number(s):	SYG 919 of 2017
Judgment of:	JUDGE VASTA
Date of judgment:	26 October 2021
Catchwords:	MIGRATION – protection visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth), s 424A
Division:	Division 2 General Federal Law
Number of paragraphs:	46
Date of last submission/s:	26 October 2021
Date of hearing:	26 October 2021
Place:	Brisbane
Counsel for the Applicants:	The Applicant appearing on his own behalf with the assistance of an interpreter
Solicitor for the First Respondent:	Clayton Utz

ORDERS

SYG 919 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BGZ17
First Applicant

BHG17
Second Applicant

BHH17
Third Applicant

AND:

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

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	26 OCTOBER 2021

THE COURT ORDERS THAT:

1.The Application filed on 28 March 2017 be dismissed.

2.The Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00

3.That the name of the minister be amended to “MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS”.

NOTATION:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 2 March 2017, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, BGZ17, a protection visa.  The wife and child of BGZ17 were dependent Applicants to the main Applicant’s application.  On 28 March 2017, the Applicant asked this Court to review that decision. 

2. The matter was mentioned before Registrar Morgan in July 2017 and set for a callover.  At that callover, on 30 November 2017, the matter was adjourned to a date to be fixed.  Upon the implementation of the National Migration Docket, the matter was mentioned again on 19 August 2021.  On that day, Registrar Carney set the matter down before me today for final hearing.

3. The Court must apologise to the Applicant for having to wait four and a half years before the Court could actually have a final hearing in this matter. 

4. The background to this matter is as follows; the Applicant and his wife came to Australia on 12 January 2008.  They came here on student visas. 

5. On 26 October 2010, the Applicant and his wife returned to India. 

6. The Applicant and his wife returned to Australia, still on that visa, on 2 December 2010.

7. Just before that visa was to expire, both the Applicant and his wife made an application for a further student visa.  In April 2012, the Department refused to grant the Applicant and his wife the student visas.

8. The applicants then went to the Migration Review Tribunal, as it was then known.  On 25 September 2013, the Migration Review Tribunal affirmed the decision not to give the Applicant and his wife a student visa. 

9. In October 2013, the Applicant and his wife asked this Court to review that decision of the Migration Review Tribunal.  The Applicant withdrew that application to the Court on 20 May 2014. 

10. Less than a month later, the Applicant made the current claim for protection.  The delegate of the Minister refused to grant the protection visa on 22 April 2015.  The Applicant then asked the AAT to review that decision.

11. The Tribunal heard the application on 1 March 2017 and gave their decision the next day, 2 March. 

12. The Applicant claimed that he was born into a lower caste Hindu family in Gujarat, India.  He said that belonging to a lower caste meant that he was unofficially declared as “untouchable” and was treated as a second-grade citizen.  He said that he was forced to sit on the back benches at school.  Nevertheless, he was sufficiently educated that he could begin tertiary studies after he finished school.  He said that once he attended university, he then began to be involved with the Congress Student Wing or National Students’ Union of India. 

13. He said that his ideology was to strengthen the force of nationalism and to ensure that all people were treated equally.  He said that this brought him into conflict with the Bharatiya Janata Party or BJP.  He said that he organised demonstrations against the BJP.  He said that he then became well known to the BJP and they realised that his work could result in another big movement against the party.  He said that he began to be threatened by BJP members and his family members were as well.  He said that he continued with his political beliefs, notwithstanding this harassment. 

14. He said that he began dating his wife at university but, after a few weeks, a member of the opposition party liked her and asked her to go out with him.  His wife refused this advance and told this person about the Applicant, which caused this person to want to kill the Applicant.  The Applicant and his wife then married in secret, so that no one could find out.  But the Applicant discovered that he was targeted for killing and that the BJP would paint the murder as being a personal motive, rather than a political motive.  He decided to leave the country but had no money and so had to borrow money from a private lender.

15. This lender has asked double the original amount and has threatened the parents of the Applicant, causing them to move out of their family home and go into hiding.  He said that he cannot return to India because the BJP will kill him for his political beliefs, the spurned suitor would kill him out of honour and the money lender would kill him because he has not paid his money back. 

16. The Tribunal considered these claims very thoroughly. 

17. The Tribunal asked the Applicant about the NSUI and the Student Wing of the Congress Party.  He was asked about his position, and he told the Tribunal that he was known as the leader, but he did not have a title.

18. As to his duties, the Applicant said he would organise meetings and when there were elections, he would organise propaganda.  He was asked about the principles, or the motto, of the organisation and he answered that it was to make others understand the principles of the Congress Party.  When he was asked again about the principles of the NSUI, he said that the main aim of the organisation is to win elections.  He was asked about membership of the NSUI, and he said that there were no requirements for membership and that all people had to do was to issue propaganda. 

19. The Tribunal looked at the website of the NSUI and read to the Applicant what their motto and membership requirements were.  The Applicant said he knew that information already.  He then said to the Tribunal that he ceased being a member of the NSUI in 2006.  The Tribunal asked why anyone would have any interest in him as a result of membership of a party from 10 years beforehand, but the Applicant still indicated he would be sought out by them.  The Tribunal noted that the NSUI does have a formal structure and it has membership requirements.  The organisation has a motto and values and has a mission statement.

20. The Tribunal noted that the Applicant did not exhibit any genuine understanding of the NSUI in terms of its membership requirements or principles even though he was given considerable opportunity to articulate even a basic understanding of these.  Even though the Applicant’s written statement had some detail about the organisation, the Tribunal noted with interest that the Applicant was unable to articulate anything like that sort of detail during his oral evidence.  Notwithstanding that the Applicant then told the Tribunal that he had not been a member for 10 years, the Tribunal considered that someone who had the standing that the Applicant said he had, would have had a better understanding of the organisation.

21. The Tribunal did not accept that the Applicant was ever a member or a leader of the NSUI.  The Tribunal did not accept that it would be credible that anyone would have any continuing interest in the Applicant as a result of any role that he had in that organisation.  The Tribunal did not accept that the Applicant or his family members were ever threatened or harmed because of any involvement by the Applicant in the NSUI. 

22. When it came to the claims that someone from the opposition party wanted to have a relationship with the Applicant’s wife, the Tribunal said that the Applicant’s evidence in relation to this was vague and unpersuasive. 

23. The Applicant claimed in his evidence before the Tribunal that he was attacked with a stick by this person in 2006.  The Applicant had not mentioned this in any of his written material or what he said to the Department.  The Tribunal asked the Applicant why it was that, if he did have this fear, he would go back to India in 2010.  The Applicant said that he only went back for 25 days and left to come back to Australia because he had heard that this person was trying to get to him and also that the money lender was coming after him.  The Tribunal did not accept this explanation.  The Tribunal also considered that the Applicant’s claim about the money lender was fabricated. 

24. The Tribunal said that they did not accept that there would be no documents in relation to a debt, even if it were from money lenders who knew the Applicant and his father.  The Tribunal did not accept that there would be no records as to the amount payable, the instalments that were to be paid and the interest amounts. 

25. The Tribunal said that their conclusions as to the membership of the NSUI, the person wanting a relationship with the Applicant’s wife and the money lenders was strengthened by other circumstances. 

26. Those circumstances were, firstly, that the Applicant, having come to Australia in 2008, did not make an application for protection until 2014 and the fact that the Applicant and his wife did go back to India in 2010.  The Applicant lodged an application for a student visa and then appealed that decision to the Migration Review Tribunal.  The Applicant said that he did not know about protection visas until he was told by someone years later.  The Tribunal did not accept this explanation. 

27. The Tribunal considered that the delay in lodging the application, until six years after the arrival and only after he had exhausted all options regarding student visas, was indicative of the fact that he does not genuinely fear harm in India.

28. The Tribunal considered the Applicant’s claims in relation to his low caste.  During the hearing, the Tribunal advised the Applicant that his family name was synonymous with a land owning class and it did not seem that it was an untouchable or lower caste.  The Applicant denied this and said that there was still some lower caste within his family name caste.  He said that he still had to sit at the back during school and he was discriminated against, though he admitted that the discrimination did not exist while he was at university.  The Tribunal said that they did not accept the Applicant’s vague and unpersuasive evidence regarding his problems he had as a result of his caste.

29. The Tribunal did not accept that there was a real chance that the Applicant would suffer serious harm, or a real risk that the Applicant would suffer significant harm, for reasons of their caste if the Applicant returned to India. 

30. The Tribunal noted that the Applicant had been in Australia since 2008 and that he and his wife now have two young children, who are both born in Australia.  The Tribunal accepted that the family may have difficulty re-establishing themselves after such a lengthy period in Australia but that this did not rise to the level of being serious or significant harm. 

31. Having made all of these findings, the Tribunal concluded that the Applicant did not meet the refugee criteria or the complementary protection criteria. 

32. The Tribunal therefore affirmed the decision not to grant the applicant the protection visa. 

33. The applicant filed an application with four grounds of application.  I will read them into the record. 

    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 consequences of it being relied upon, and to invite the applicant to comment upon or respond to that information.

    2.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

    3.The Tribunal member failed to consider an integer of the Applicant’s claim, in finding to consider whether or not a lower caste (regardless of their past persecution) in India was at risk of harm from a higher caste, and not able to access effective protection.

    4.That the applicant satisfy the key elements of the Convention definition as detailed in the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual error and legal error. 

34. The Applicant appeared before me today unrepresented.  Notwithstanding that he has been in this country for nearly 14 years and has completed university studies in this country, he was given assistance by an interpreter, to ensure that no nuance was missing from his understanding of these proceedings.  While I suspect that these grounds were written by someone else, the Applicant told me that he dictated these grounds to someone who had a better understanding of English, and they wrote these grounds down for him.  He said that he wished to place no reliance upon those grounds but, nevertheless, I will engage with those grounds.

35. With respect to ground one, the Applicant could not particularise what information he said needed to be given to him. The only information one could think is the information regarding the Applicant’s family name. All this did was cast doubt upon the contention of the Applicant that he was from a lower caste. There was no requirement on the Tribunal to give this information pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”), but the Tribunal did so anyway. In the end, the Tribunal did not make a positive finding as to the caste of the Applicant but did not accept that he had suffered discrimination because of whatever caste he actually belongs to.

36. With regard to ground two, the claim that the Tribunal did not act in accordance with the provisions of the Act was not particularised. It seems to me that this ground does not make it past the first base and having gone through the decision, it would seem to me that the Tribunal had more than enough evidence to be reasonably satisfied of the conclusion it came to.

37. The third ground was a matter that was actually considered by the Tribunal. The Tribunal was not satisfied that the discrimination, or danger, that the Applicant claimed would occur to him because of his caste would actually occur.

38. The fourth ground did not have any particularity whatsoever.  There was a bald statement that the Applicant satisfied the elements, but the Tribunal clearly did not accept that the Applicant satisfied the elements.  That was a conclusion that was open to the Tribunal and does not display any error. 

39. So none of those four grounds displays any jurisdictional error.  But, as I have said, the Applicant before me decided not to put any reliance upon those grounds whatsoever. 

40. The Applicant’s complaint before me today was that the decision was not arrived at by the proper investigation. 

41. I asked the Applicant what he meant by “the proper investigation”.  He said to me that he belonged to his particular family, but the AAT just looked online at that particular family name and made conclusions.  He said that he did not have enough time to put any material before the Tribunal to explain himself.  He said that he was scared, and he could not speak properly. 

42. The Applicant did not expand on that and tell me what material he wanted to put before the Tribunal, other than it would have to have come from India.  He also did not tell me what it was that he would have said if he could have spoken properly and was not scared.

43. It seems to me that the Applicant had misunderstood the role of the Tribunal.  His submissions to me today indicated that he believed that once he made the claim it was a matter for the Tribunal to investigate his claim and to disprove what it was that he had said.  As was explained as well by the representative for the Minister, it is for the Applicant to put his case before the Tribunal and to put his evidence before the Tribunal, to satisfy them that he fulfils the criteria. 

44. In reality, the Applicant’s actual complaint to this Court is that he did not get a protection visa.  His belief is that everything that he said to the Tribunal should have been accepted and believed.  His contention is that if the Tribunal did not believe him and give him a visa, then, therefore they did not do a proper investigation.  And this is based on an almost unshakeable belief that, unless he receives the visa, then the Tribunal could not be doing their job properly. 

45. I tried to cast his ground as being one where he submitted that, on all the evidence before the Tribunal, the conclusion made by the Tribunal was simply not open on the evidence.  It seems to me that that is the only sensible way to characterise what it was that the Applicant was submitting to me today. 

46. Having gone through the decision very thoroughly, I am of the view that the conclusions made by the Tribunal were definitely open to it.  There has been no jurisdictional error illustrated.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       6 December 2021