BKU16 v Minister for Immigration

[2017] FCCA 1195

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKU16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1195

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erroneously found that the applicant would not face a real risk of significant harm upon return to India – whether the Tribunal denied the applicant procedural fairness by reaching adverse conclusions – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal failed to consider the applicant’s mental health condition – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2A)

Applicant: BKU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1477 of 2016

Judgment of: Judge Smith

Hearing date: 1 May 2017

Date of Last Submission: 1 May 2017

Delivered at: Sydney

Delivered on: 1 May 2017

REPRESENTATION

The applicant appeared in person

Counsel for the First Respondent: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1477 of 2016

BKU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 17 May 2016. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The applicant is a citizen of India who arrived in Australia on 12 July 2009 as a holder of a student visa. That student visa was cancelled on 8 February 2011.

2. On 7 April 2014, the applicant applied for a protection visa. That application was based upon the applicant’s claim that he was in a relationship, or had been in a relationship, with a woman in India who belonged to a different caste than that to which the applicant belonged.

3. The applicant claimed that there were a number of incidents that arose in connection with that relationship in which he was threatened, and on one occasion he was hit on the head and fell down. He claimed that he was afraid of the woman’s family members and in particular, that they would kill him to uphold their honour.

4. On 17 December 2014, a delegate of the Minister decided to refuse to grant the applicant a visa. The delegate did not accept the credit of the applicant’s claims.

5. The applicant applied to the Tribunal for review of the delegate’s decision. On 4 April 2016, he attended a hearing conducted by the Tribunal. On the same day, the Tribunal gave him an invitation to comment on certain information which it considered would be part of the reason for its decision. That letter set out three pieces of information, which according to the Tribunal, if it were to rely upon it, would not support his claims.

6. The first piece of information was that the applicant’s student visa application said that he had commenced studying for a Bachelor of Arts degree on 17 July 2002 and completed his studies on 27 September 2005. The Tribunal noted that this was inconsistent with his claims to have been studying for a Bachelor’s degree in 2008 and 2009 in his protection visa application.

7. The second piece of information was a letter from a bakery in India indicating that he worked there from July 2006 to January 2009. The Tribunal noted that this was inconsistent with his claim to have been studying in 2008 and 2009.

8. The third piece of information was that the student visa application attached a test which had been sat on 12 May 2007 and that he had been granted a student loan on 11 November 2008 in order to study in Australia.

9. The Tribunal noted that that was relevant because it indicated the applicant was making plans to depart India long before the claimed threats and attacks outlined in his protection visa application. On 22 April 2016, the applicant applied for an extension of time within which to respond to the invitation; but that request was refused.

Tribunal’s decision

1. On 17 May 2016, the Tribunal made its decision to affirm the delegate’s decision. Like the delegate before it, the Tribunal did not accept that the applicant was a credible witness.

2. First, the Tribunal noted that there were significant differences between the evidence given by the applicant about the circumstances that had occurred in India, and the account of the circumstances in his protection visa application. The Tribunal also found that the pieces of information referred to in the letter of 4 April 2016 undermined the applicant’s credibility. The Tribunal took into account the applicant’s claim that his memory was impaired. However, it noted that there was no medical evidence before it to indicate any memory impairment, and it was not persuaded that it accounted for the applicant’s inability to recall the details of significant events or for the significant inconsistencies between his written and oral claims.

3. The Tribunal also noted that the applicant had delayed for a considerable period in Australia in making an application for a protection visa, and that that delay was inadequately explained. For those reasons, the Tribunal found that the applicant was not a credible witness and rejected each of the applicant’s factual claims upon which his protection visa application was made.

4. On the basis of those findings, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm on return to India, and so did not satisfy the criterion in sub-s.36(2)(a) of the Migration Act 1958 (Cth) (Act).

5. On the basis of the same findings, the Tribunal also was not satisfied that the alternative criterion in sub-s.36(2)(aa) of the Act was satisfied, and for those reasons affirmed the delegate’s decision.

Consideration

1. The applicant appeared unrepresented at the hearing and did not rely on any evidence and made no submissions. He did not file any written submissions in accordance with the orders made by the Court. For that reason, it is necessary only to examine the grounds of the application as they are set out in the original application for judicial review.

First ground

1. The first ground is:

   The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

   The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his return to India.

2. That ground is not made out. The reason that the Tribunal concluded that there was no real risk of significant harm being suffered by the applicant upon return to India was not upon any understanding of analysis of the meaning of the term “significant harm”. Its finding was because it rejected as untrue each of the factual claims made by the applicant in support of his protection visa application.

3. There was, in other words, nothing upon which the Tribunal could be satisfied, on any understanding of the meaning of the term “significant harm”, that the applicant might risk such harm. For those reasons the first ground is rejected.

Second ground

1. The second ground 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.

2. That ground has clearly been drafted without any regard to the Tribunal’s reasons or the facts of this case. First, the Tribunal did not reject the applicant’s claims on the basis that his claims were implausible, but rather, simply, that it did not believe the applicant. Secondly, it is clear from two things that the Tribunal’s findings ought not to have taken the applicant by surprise.

3. First, as I observed, the delegate rejected the visa application on the basis that none of the applicant’s claims were true. Secondly, at the hearing the Tribunal put to the applicant each of its doubts in respect of the applicant’s evidence, including the significance of those doubts and the reasons for them. In addition, in the letter dated 4 April 2016, the Tribunal pointed to three pieces of information and explained that if that information were accepted then it would undermine the credibility of his claims. For those reasons there was no denial of procedural fairness by the Tribunal, and the second ground is rejected.

Third ground

1. The third ground is:

   The Tribunal failed to investigate the claim, especially the grounds of persecution in India. Therefore the Tribunal decision dated on 17 May 2016 was judicial error.

2. It is not clear what is meant by the word “investigate” in this context. If it is intended to suggest that the Tribunal ought to have made its own inquiries, whatever they were, of the circumstances that might relate to the applicant in India, then the ground cannot be sustained. It is not the Tribunal’s job in the ordinary course to make its own inquiries. However, it may be noted that on occasion, if an inquiry is so obvious and easily done in respect of a matter that might be easily ascertained, it may be argued that the failure to undertake such an investigation or inquiry would be so unreasonable as to infect the Tribunal’s decision with jurisdictional error. There was no obvious inquiry here.

3. If, on the other hand, the word “investigate” means to consider, then the ground should equally fail. That is because the Tribunal did consider the applicant’s claims. Its reasons disclose that it carefully examined both the applicant’s written and oral evidence and undertook an analysis of both of them. It was that analysis, however, that led it to conclude that the two were inconsistent and, therefore, led it to disbelieve his evidence. For those reasons, the third ground must be rejected.

Fourth ground

1. The fourth ground is:

   The Tribunal failed to appropriately deal with the applicant’s mental health condition.

2. The difficulty with this ground is that it relies upon the assertion that the applicant has a mental health condition, in particular a mental health condition that might have affected his right to a hearing. However, as it was before the Tribunal, there is no evidence before the Court to support that assertion, and for that reason alone the ground should be rejected. I note, however, as already observed, that the Tribunal did deal with the applicant’s claim to have some difficulty with his memory.

3. In the absence of medical evidence, the Tribunal was not obliged to take any further steps than it did, and it fell into no error.

Fifth ground

1. The fifth ground is that:

   In finding that it was not satisfied that applicant was a person to whom Australia owed protection obligation, the Tribunal engaged in a press of reasoning that was irrational, illogical and not based upon findings or inference of fact supported by logical ground.

2. The Tribunal’s decision was based upon its finding of credibility. That finding was based upon several matters, each of which formed a logical basis for the finding. First, the applicant was unable to recall details of significant events at the hearing. There were significant inconsistencies between his written and oral claims. He had an unexplained long delay in seeking protection in Australia. There was also information in his student visa application which was inconsistent with his claims in support of a protection visa application.

3. It was open to the Tribunal to infer from each of those, and the combination of those, that the applicant’s claims were not credible. For those reasons the Tribunal’s findings were supported by logical grounds, and the fifth ground must be rejected.

4. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:

Date:  9 June 2017