BIL15 v Minister for Immigration

[2016] FCCA 2534

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2534

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) – whether applicant raised an arguable case for the relief sought – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12(1)(a), 44.13(1)
Migration Act 1958 (Cth), ss.36(2), 36(2)(a), 36(2)(aa), 424A

Applicant: BIL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1927 of 2015

Judgment of: Judge Manousaridis

Hearing date: 22 September 2016

Delivered at: Sydney

Delivered on: 22 September 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondent:  Ms J Stansfield of DLA Piper Australia

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1927 of 2014

BIL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application be dismissed because it does not raise an arguable case for the relief it seeks.  The application in question seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. Before I turn to the application before the Court, it will be necessary to set out the applicant’s migration history, claims for protection and the Tribunal’s reasons for not accepting those claims. 

3. The applicant, a citizen of India, arrived in Australia on 1 July 2009 as the holder of a Subclass TU 572 (Vocational Educational and Training Sector) visa as the dependant of his spouse.  On 16 August 2011 the applicant applied for a Subclass VC485 (Skilled Graduate) visa.  That application was refused by a delegate of the Minister and the decision was affirmed by the Migration Review Tribunal on 9 May 2013.On 6 June 2013 the applicant sought and was refused Ministerial intervention.  The applicant subsequently applied for a Protection visa on 21 November 2013. 

4. In his application for protection, the applicant claimed he feared harm from his former wife’s family who blamed the applicant for the breakdown of their marriage, and from money lenders in India from whom he borrowed money after being involved in an accident in Australia. 

5. The applicant stated he was mainly worried about the money lenders. The applicant claimed he received death threats and that the money lender hired thugs who, in an attempt to recover the loan, ransacked the applicant’s home in front of his parents and threatened them.  The applicant claims that he is an injured person and that neither he nor his family have any capacity to repay the loan.  The applicant’s family sold their assets to pay the applicant’s bills and half of the money borrowed from the lender, who had since asked for double the loan amount.

6. The applicant also claimed that his former wife’s family know about the applicant’s current situation with the money lender and fear they will try to get revenge on the applicant through them.  The applicant further claimed that the police in India will be unable to protect him as the money lender is well connected and pays the police a commission which ensures the money lender’s protection.

7. Before the Tribunal, the applicant, so the Tribunal found, gave a different account of his claims.  The applicant claimed that he borrowed money from his family after his accident as he could not work, and that his parents had sold some of their land to help him.  The applicant also claimed that it was his former wife’s family who were threatening him and his family, not money lenders.  The applicant claimed that his former wife’s parents had contacted his family to pay her course fees in January 2011, that his parents had sold some of their land to pay the fees, that they continued to blame the applicant for the divorce, and had “bothered” his family even after they paid the fees.

8. The Tribunal was not satisfied the applicant was a truthful or credible witness.  It found the applicant’s evidence to be internally inconsistent, vague, and, unpersuasive; and concluded that the applicant had fabricated his claims so as to achieve a favourable migration outcome.  The Tribunal relied on a number of matters.   First, the Tribunal found the applicant made a significant claim at the hearing that he did not make in his claim for a protection visa.  That claim was that, because his former wife’s family blamed him for their divorce, they had bribed the local village police and lodged the false claim against the applicant’s brother, who was jailed for “2 – 3 years”. The applicant indicated that he had not made this claim in his application for protection because he “made a mistake” and that his migration agent “only asked what fear he had, not what had happened to his brother”. 

9. Second, the Tribunal found the applicant made significant claims in his application for a Protection visa which he did not make at the hearing before the Tribunal.  In his application for protection, the applicant claimed to have borrowed money from a money lender who hired thugs who ransacked the applicant’s home and threatened the applicant when he was unable to pay the balance.  The applicant, however, did not articulate that claim before the Tribunal.

10. Third, the Tribunal found the applicant made “significant changes” to the narrative of his claims for protection.  In his application for protection, the applicant claimed he borrowed money from a money lender to pay his day-to-day expenses, that he was “mainly worried” about threats he had received from the money lender, and that his parents had sold all of their assets to pay half of the balance he had borrowed.  Before the Tribunal, on the other hand, the applicant claimed to have borrowed money from his family, that he feared threats made by his former wife’s family, not any money lender, and that his parents had sold some of their land to pay for his former wife’s course fees.

11. Fourth, the Tribunal found the applicant’s evidence about significant events to be vague and unpersuasive.  In particular, the Tribunal referred to the applicant’s account of when he and his former wife separated, when he and his family were threatened by his former wife’s family, and when his brother was jailed.  The Tribunal did not accept the applicant’s explanation for his vagueness;  namely, that he “forgets things”, and considered that, had the claimed threats taken place, the applicant would have been able to provide to the Tribunal more specific details about those claims.

12. Fifth, the Tribunal considered the applicant’s delay in applying for protection to be inconsistent with his claim that he and his family have been subject to threats from his former wife’s family since January 2011.  The Tribunal did not accept the applicant’s explanations for the delay;  in particular, that he was delayed because he was depressed.  The Tribunal relied on the lack of medical evidence in support of his claimed condition and the fact that, after he arrived in Australia, the applicant applied for a skilled graduate visa and for Ministerial intervention.

13. The Tribunal, therefore, did not accept that the applicant’s former wife’s family had threatened the applicant or the applicant’s family because they blamed the applicant for their divorce, or that his former wife’s family bribed police and had his brother jailed on false charges, or that his former wife’s family threatened to kill the applicant if he returns to India, or that the applicant borrowed money from a money lender, or that the money lender hired thugs who ransacked his home, or that the money lender threatened to kill the applicant if he returns to India. The Tribunal therefore was not satisfied that the material before it provided a sufficient basis to find that the applicant is a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Migration Act 1958 (Cth) (Act), nor was it satisfied that the applicant had a well-founded fear of persecution in India for a convention related reason. The Tribunal also noted that it considered the alternative criterion specified in s.36(2)(aa) of the Act, but the Tribunal was satisfied that the applicant was not a person in respect of whom Australia owed protection obligations under s.36(2)(aa) of the Act.

14. I then turn to the grounds stated in the application for review.  That application contains three grounds. Each of the grounds was interpreted to the applicant, and the applicant was invited to make submissions in relation to each of the grounds.  The applicant, who is not legally represented, made no submissions in relation to any of the three grounds.  The applicant also made an assertion in the affidavit he filed at the time he filed his application, which I read as a submission.  The applicant made a submission in response to an invitation from me about the assertion made in the affidavit, although, as I will note in a moment, the submission that was made did not address what was contained in the affidavit.  In addition, the applicant made other submissions which cannot be said to have related to the grounds set out in the application. I propose first to deal with the grounds as stated in the application, and I will then deal with the ground stated in the affidavit, and then the submissions the applicant made before me. 

15. The first ground stated in the application is:

    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.

16. This ground does not state any arguable case for the relief it seeks. It does not identify the information, particulars of which it is claimed the Tribunal was obliged but failed to give to the applicant. There is nothing apparent on the material that is before me of any information on which the Tribunal relied that could have arguably engaged s.424A of the Act.

17. The second ground of the application is:

    The Tribunal's decision was unjust and made without taking into account the full gravity of Applicant's circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense pressure from money lender and ex-wife's family members.

18. This ground raises no arguable case for relief.  As my summary of the Tribunal’s reasons which I gave earlier illustrate, it is beyond argument that the reasons of the Tribunal demonstrate the Tribunal identified and sought to understand, and did understand, the claims the applicant made, and the Tribunal considered those claims the evidence the applicant gave before it. In any event, it is not arguable that a claim that a decision is unjust states a recognised ground of jurisdictional error. 

19. The third ground of application is:

    The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

20. This ground makes two claims.  The first is that the Tribunal reached conclusions adverse to the applicant that were not open on the material before the Tribunal.  The second is that the Tribunal did not give the applicant an opportunity to be heard on the matters on which the Tribunal made adverse findings against the applicant.

21. The ground as stated in the application contains no particulars.  It does not identify which aspects of the claims it is asserted the Tribunal found implausible, and which were conclusions that were not obviously open on the known material.  For that reason alone, the ground as stated in the application is not arguable. 

22. In any event, as to the first of the two claims, there is nothing on the material that is before me that could arguably suggest the adverse findings the Tribunal made against the applicant were not reasonably open to the Tribunal on the material that appears to have been before it. It is beyond argument that the Tribunal identified evidence of the applicant the Tribunal considered to be vague, inconsistent, or unpersuasive. 

23. As to the second claim, it is beyond argument that the Tribunal’s reasons for decision show the Tribunal did raise its concerns with the applicant.  The Tribunal informed the applicant it was having difficulty accepting that the applicant was subject to threats of harm from money lenders and from his former wife’s family.  The Tribunal informed the applicant it had difficulty accepting the applicant or any of his family members had been threatened, as the applicant had claimed, in particular, that the applicant’s brother had been falsely charged and jailed. The Tribunal also informed the applicant that the changing narrative of his claims for protection undermined the veracity of his claims and the applicant’s claimed fear for his life if he returned to India.  The Tribunal also raised with the applicant its concerns about the applicant’s delay in applying for a Protection visa. 

24. I then turn to the submissions the applicant made in his affidavit.  He there asserts that the “tribunal has failed to investigate my claim, especially the ground of persecution.” In response to my question whether the applicant had any submission to make about this assertion, the applicant made a submission which did not address it.  What he did say I will come to in a moment.  I will here deal with the assertion made in the affidavit.  The assertion raises no arguable case of jurisdictional error.  To the extent it claims the Tribunal failed to consider the applicant’s claim, it is beyond argument the Tribunal identified the applicant’s claims, raised with the applicant concerns it had with his claims, and considered those claims and gave reasons for not accepting them. To the extent the claim is the Tribunal was required to undertake an investigation, that too gives rise to no arguable case.  The Tribunal does not have a general duty to investigate.  At most, it has a limited duty to make an obvious inquiry about a critical fact, the existence of which is easily ascertained.  The assertion made in the affidavit, however, does not identify the critical fact or facts about the existence of which could easily have been ascertained by an obvious inquiry. The assertion made in the affidavit, therefore, raises no arguable case. 

25. In response to my invitation to make submissions about his affidavit, the applicant said he told the Tribunal he was on medication for almost two years.  This submission is similar to the submissions the applicant had already made at the beginning of his address.  What the applicant said at the beginning of his submissions to me was that he had an accident two years before the Tribunal hearing and that he was taking medication and that he was forgetting things. It is not clear what the intended relevance of these submissions are.  I will take the submissions, however, to be a claim that the applicant was unable to effectively participate at the hearing before the Tribunal because of medical conditions from which he was suffering. 

26. The applicant, however, has not articulated the precise nature of the medical condition or conditions he claims he suffered as a result of his taking medication or how those medical conditions affected his ability to effectively participate in the hearing. It is true he has asserted he was forgetting things, but he has not articulated what he claims he had forgotten.  In the absence of particulars of this nature, I am satisfied that his reliance on the asserted medical conditions he claims to have suffered raises no arguable case of jurisdictional error. 

27. In any event, I am not prepared to consider his asserted medical condition as a ground for relief. Subrule 44.13(1) of the FCC Rules provides:

    At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.

28. Even though what is before me is a show cause hearing, it was set down for hearing on 6 August 2015, over one year ago.  On the day it was set down for hearing, as is usually the case, directions were made for the future conduct of the matter.  One of the directions was to permit the applicant to file additional evidence and any amended application.  The applicant has not taken advantage of the order to file an amended application or to file evidence.  The applicant, therefore, has had ample opportunity to give thought to what should be included in his application, including the matters that he asserted today about his medical conditions. 

29. For these reasons, therefore, I am of the opinion that the application discloses no arguable case for the relief it seeks, and I propose, therefore, to dismiss the application.

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

Date: 29 September 2016