BJA21 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 354

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BJA21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 354

File number(s):	SYG 909 of 2021
Judgment of:	JUDGE ZIPSER
Date of judgment:	14 March 2025
Catchwords:	MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether applicant denied procedural fairness – whether Tribunal’s reasoning process was illogical and unreasonable - no jurisdictional error established – application dismissed.
Cases cited:	SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division:	Division 2 General Federal Law
Number of paragraphs:	40
Date of hearing:	20 February 2025
Place:	Parramatta
Applicant:	In person
Solicitor for the Respondents:	Mr C. Burke of Sparke Helmore

ORDERS

SYG 909 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BJA21

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	14 MARCH 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs in the sum of $6,500.

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

Note: The Court may vary or set aside a judgment or order 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 ZIPSER

INTRODUCTION

1. On 22 May 2021, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 23 April 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (subclass 866) visa under s 65 of the Act.

2. For the reasons that follow, the application is dismissed.

   FACTUAL BACKGROUND

3. On 23 August 2008, the applicant, a citizen of India, first arrived in Australia on a student visa.

4. On 11 January 2016, the applicant applied for a protection (subclass 866) visa.

5. On 14 February 2017, a delegate of the first respondent, following an interview with the applicant on 5 April 2016, refused to grant the visa.

6. On 8 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision.

7. On 5 March 2021, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments on 16 April 2021.

8. On 16 April 2021, the applicant appeared at a hearing before the Tribunal with the assistance of a Punjabi interpreter. A representative of the applicant also attended the hearing.

9. On 23 April 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the visa.

   TRIBUNAL’S DECISION

10. The applicant claimed that in 2003 he was involved in a fight at college between two opposing groups which resulted in a person called Rana from the opposing group being killed. The applicant claimed that a business competitor of the applicant named Musha Khan and friends of Rana had an ongoing desire to seek and harm the applicant as revenge for his involvement in the death of Rana, and the applicant feared returning to India on this basis. The applicant described events which had occurred since 2008 in support of his claim that Musha Khan and friends of Rana sought to harm the applicant.

11. The Tribunal accepted that the applicant, while at college in 2003, was involved in a fight between two opposing group, which resulted in Rana from the opposing group being killed. However, the Tribunal had credibility concerns about the applicant’s claims since 2008. The Tribunal set out and discussed seven sets of credibility concerns. The Tribunal, upon considering the credibility concerns cumulatively, was not satisfied as to the credibility of key claims by the applicant since 2008. The Tribunal was not satisfied that there was any ongoing desire by Musha Khan or other associated individuals to track down and harm the applicant on his return to India.

12. Although the Tribunal accepted that Musha Khan was a businessman who engaged in intimidating tactics and caused the business of the applicant’s late father to shut down in 2004, the Tribunal was not satisfied that Musha Khan targeted the applicant since 2008 and was not satisfied that the applicant faced a real chance of serious harm as a result of Musha Khan’s conduct.

13. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or (aa) of the Act and affirmed the decision not to grant the applicant a protection visa.

    PROCEEDINGS IN THIS COURT

    Application and steps up to 19 February 2025

14. On 22 May 2021, the applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision. The application included three grounds as follows (reproduced as written):

    1.The Tribunal denied procedure fairness of the applicant.

    Particulars:

    a.   Despite the Tribunal decided on the case on credibility of the applicant [10] the Tribunal did not provide the applicant an opportunity to comment or respond.

    2.The Tribunal has errored in jurisdictional facts and law.

    Particulars:

    a.Despite the fact the applicant claims of Complementary Protection, where the legislation only came into effect on the 23 March 2012, the Tribunal's inference that the applicant should have applied earlier. [61] The Tribunal also raised doubt over the advice of the migration agent [65-67] over such advice.

    b.As the Tribunal was constituted by a member of the MR Division of the Tribunal, the Tribunal has failed to appreciate the fact that there are permanent visa migration pathways for students in Australia and concluding that the applicant having to return to India at some point in time and doubted the immigration advice that the applicant had received. [67]

    3.The Tribunal has been illogical and unreasonable.

    Particulars:

    a.Despite the fact that the Tribunal has accepted the fact that Rana being killed and both incidences in 2003 and 2007 had happened. [28] [30] The Tribunal raised "credibility concerns" of the incidents. [72]

15. The application was prepared by a lawyer for the applicant. The lawyer was the applicant’s representative at the hearing before the Tribunal in April 2021.

16. On 24 June 2021, a registrar made orders that the applicant file and serve any amended application or affidavit evidence by 16 September 2021. The applicant did not file any materials in response to this order.

17. On 24 June 2021, the registrar also ordered that, upon the matter being listed for hearing, the applicant file and serve a written submission at least 28 days before the hearing.

18. On 12 December 2024, the Court notified the parties that the matter was listed for hearing on 20 February 2025.

19. On 28 January 2025, the applicant’s lawyer referred to in paragraph 15 above lodged a notice of withdrawal of lawyer. The document was accompanied by a notice of intention to withdraw as lawyer dated 20 January 2025 which was presumably served on 20 January 2025.

20. The applicant did not file a written submission prior to the hearing on 20 February 2025.

    Hearing on 20 February 2025

21. At the hearing on 20 February 2025, the applicant appeared in person, assisted by a Punjabi interpreter. Cormac Burke from Sparke Helmore appeared for the first respondent.

22. Mr Burke provided to the applicant a copy of a Court Book filed and served by the first respondent in August 2021 which contained the Tribunal’s decision and documents which were before the Tribunal.

23. At the commencement of the hearing, I directed the applicant’s attention to the Tribunal’s decision in the Court Book. I explained that the Court’s role was limited to considering whether or not there was a jurisdictional error, which I described as a significant error or mistake, in the Tribunal’s decision. I explained the main categories of jurisdictional error. I explained that, for the applicant to win the Court proceeding, he must persuade the Court there is a jurisdictional error in the Tribunal’s decision. I offered the applicant a break of 15 minutes to consider oral submissions he wanted to make to the Court. The applicant did not take up this opportunity. At my request, the interpreter interpreted to the applicant the grounds in the application prepared by his former lawyer in May 2021.

24. I then invited the applicant to make oral submissions. The applicant stated that his father died in 1999, and the Tribunal’s finding at [32] that the father died in 1999 was wrong. The applicant stated that his father was related to his claims for protection, and so there was significance to the Tribunal’s error concerning the date of the father’s death. The applicant referred to some events which occurred to him in India. The applicant referred to some past communications between the applicant and an agent who prepared a visa application for the applicant in Australia. The applicant stated that he could provide a further letter in support of his claims. The applicant stated that he wants to return to India to see his children, but he cannot return because he might lose his life. The applicant claimed that a previous visa held by the applicant was cancelled without any reason. The applicant stated some other matters which appeared irrelevant to identifying a jurisdictional error in the Tribunal’s decision.

    CONSIDERATION

    Ground 1 in application

25. The Tribunal stated at [10]:

    The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

26. The applicant complains in ground 1 that the “Tribunal did not provide the applicant [with] an opportunity to comment or respond” to its concerns about the credibility of the applicant and this involved a denial of procedural fairness.

27. In response to this complaint, first, it is difficult for the applicant to establish this complaint without tendering a transcript of the hearing before the Tribunal. Second, as stated in the first respondent’s helpful written submission, to the extent that one can infer questions asked by the Tribunal during the hearing from the Tribunal’s statement of reasons, the applicant was clearly on notice from the Tribunal’s questions that his credibility was an issue in the review. The applicant was also on notice from the delegate’s finding, that the applicant “is not fearful of harm in India”, that the applicant’s credibility was in issue. Third, it is well-established that the Tribunal is not required “to give an applicant a running commentary upon what it thinks about the evidence that is given”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]-[48].

28. Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.

    Ground 2 in application

29. Particular (a) in ground 2 complains in part about a finding of the Tribunal at [61]. The Tribunal stated at [61]:

    Sixthly, the delay of the applicant from the claimed events in 2011 in terms of creating a risk of harm to the applicant on return to India, but the applicant not making the application for the protection visa until 2016 is undermining as to the truth and legitimacy of the claims of harm in India.

30. The applicant appears to contend that, because the “complementary protection” criterion for a protection visa in s 36(2)(aa) of the Act commenced in March 2012, the Tribunal erred in finding that the applicant’s delay in applying for a protection visa undermined the truth and legitimacy of his claims of harm in India. This contention does not identify an error in the Tribunal’s reasoning at [61]. I consider that it was open to the Tribunal to find that the applicant’s delay until 2016 in applying for a protection visa undermined the truth and legitimacy of his claims of harm in India. In the absence of some explanation from the applicant which linked his delay to the commencement of the complementary protection criterion in s 36(2)(aa), it was not necessary for the Tribunal to consider the date of commencement of s 36(2)(aa).

31. Particular (a) in ground 2 also complains about the Tribunal’s reasons at [65]-[67]. The Tribunal stated at [65]-[67]:

    65.In response, the applicant maintained that he was advised by migration agents not to apply for a protection visa, as this would spoil things, but to make a further application for a student visa.

    66.As put to the applicant [at] the hearing, the Tribunal has concerns that the applicant would engage in the lengthy processes of review, appeal and Ministerial intervention in preference to at an earlier point in time making an application for a protection visa if there was a genuine concern for serious or significant harm on return to India. The applicant repeated that every agent told him that a protection visa application would ruin things.

    67.The Tribunal has considerable doubts that such advice would have been issued to the applicant to this effect. A student visa is not a permanent visa and would result in the applicant having to return to India at some point in time. The Tribunal is inclined to think that if the applicant had the level of fear in India claimed from at least 2011 he would have made a much earlier application for a protection visa than 2016.

32. The meaning of the applicant’s complaint is unclear. I cannot identify any error in the Tribunal’s reasoning process at [65]-[67]. If the applicant’s complaint is that the Tribunal erred in expressing doubt about the applicant’s claim that his migration agent advised him not to apply for a protection visa “as this would spoil things”, I consider that it was open to the Tribunal to have “considerable doubt that such advice would have been issued to the applicant to this effect”. Further, the Tribunal in the next sentence gave a reason for its “considerable doubt” which provides an intelligible explanation for its doubt.

33. Particular (b) in ground 2 makes another complaint about the Tribunal’s reasoning process at [67]. The meaning of the complaint is unclear. I cannot identify any error in the Tribunal’s reasoning process at [67].

34. Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.

    Ground 3 in application

35. In general, the Tribunal accepted the applicant’s claims concerning events up to 2007, including the occurrence of two incidents in 2003 and 2007, but the Tribunal did not accept the applicant’s claims concerning events from 2008 onwards. The applicant contends in ground 3 that this reasoning process is “illogical and unreasonable”.  The first respondent states in its written submission that, “just because [the Tribunal] accepted some of the applicant’s claims and that his evidence in relation to some of the claims was credible did not meant that [the Tribunal] was required to accept all of his claims, or find him credible more generally”. The first respondent’s analysis is correct. Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.

    Alleged error in date of father’s death

36. The Tribunal stated in the first sentence of [32]:

    In the hearing, the applicant gave evidence that his father died in 2009, which the Tribunal accepts.

37. The applicant contended at the hearing before the Court on 20 February 2025 that his father died in 1999, and the Tribunal erred in finding that the father died in 2009.

38. There was competing evidence before the Tribunal concerning the year in which the applicant’s father died. According to a letter referred to in the Tribunal’s decision at [17], the father died in 1999. But, according to the Tribunal at [32], the applicant gave evidence at the hearing before the Tribunal that his father died in 2009. If the applicant wanted to persuade the Court that he did not tell the Tribunal at the hearing that his father died in 2009, he ought to have obtained and tendered a transcript of that part of the hearing before the Tribunal. The applicant has not taken this step. In circumstances where it is not contested in evidence before the Court that the applicant told the Tribunal that his father died in 2009, it was open to the Tribunal to accept this evidence. In any event, even if the applicant told the Tribunal that his father died in 1999 and the Tribunal misheard the applicant, first, an error of fact is not, without more, a jurisdictional error. Second, it is not evident that any such error was material to the Tribunal’s decision.

39. In summary, the applicant’s contentions at the hearing on 20 February 2025 concerning the date of his father’s death do not identify a jurisdictional error in the Tribunal’s decision.

    COSTS

40. At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Burke sought costs in the sum of $6,500 which was less than the first respondent’s solicitor/client costs. The applicant had no submission to make in response to the amount sought by the first respondent. I consider that the first respondent’s claim is reasonable. I will make an order in this amount.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       14 March 2025