BLV16 v Minister for Immigration

[2019] FCCA 3421

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLV16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3421

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal did not take into account relevant considerations – whether the Tribunal took into account irrelevant considerations – whether the Tribunal’s decision was legally unreasonable – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5AAA, 36, 476

Applicant: BLV16

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1531 of 2016

Judgment of: Judge Street

Hearing date: 26 November 2019

Date of Last Submission: 26 November 2019

Delivered at: Sydney

Delivered on: 26 November 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr C Burke
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 26 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1531 of 2016

BLV16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 May 2016 affirming the decision of a delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of India. The applicant was also found to be a Sikh from a Sikh family On 13 December 2012, the applicant first arrived in Australia as the holder of a Tourist (Subclass 676) visa which expired on 13 March 2013. The applicant then unsuccessfully applied for a student visa.

3. On 11 April 2014, the applicant applied for a Protection (Class XA) visa. The applicant claimed to fear harm by reason of his support for the Indian National Congress Party (“Congress Party”) in Punjab and because the Akal Dal Party (ADP) would find him anywhere in India. The applicant also referred to the support which he provided through his bus company for the Congress Party.

4. On 19 December 2014, a delegate found that the applicant failed to meet the criteria for the grant of a Protection (Class XA) visa. On 12 January 2015, the applicant applied to the Tribunal for review of the delegate’s decision.

5. By letter dated 16 March 2016, the Tribunal invited the applicant to attend a hearing on 5 May 2016. The applicant appeared on that date to give evidence and present arguments. The applicant was also given until 19 May 2016 to provide further information to the Tribunal. The applicant provided further information concerning the Block Youth Congress Committee.

6. The Tribunal in its reasons identified the background to the application for review. The Tribunal set out the relevant law. The Tribunal summarised the applicant’s claims and referred to the applicant’s migration history. The Tribunal referred to what occurred before the Tribunal at the hearing. The Tribunal also referred to the applicant’s failure to appear in an interview before the delegate.

7. The Tribunal referred to the applicant’s passport produced at the hearing and that no other documents were produced by the applicant in relation to his claims. The letter dated 16 March 2016 which invited the applicant to attend the hearing expressly stated that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.

8. The Tribunal referred to the applicant’s claims about his transport business.

9. The Tribunal also referred to the applicant’s history in relation to his unsuccessful attempt to obtain a student visa in Australia.

10. The Tribunal also referred to the applicant’s explanation for why he did not attend before the delegate for the first interview.

11. The Tribunal also referred to the applicant’s claim that things got worse for him in 2008 after the government had changed in 2007.

12. The Tribunal also referred to the applicant’s evidence about the ADP owning buses. The Tribunal also referred to the applicant’s claim about attacks so that the ADP can make a profit.

13. The Tribunal referred to the applicant’s previous travel out of India. The Tribunal explored with the applicant his travel to Thailand, Singapore and Malaysia. The applicant confirmed that he had not faced any difficulties in 2007. The Tribunal referred to the applicant’s evidence that he and his family had gone to the United Kingdom in April/May 2009 for one month.

14. The Tribunal referred to the applicant’s claims in relation to his involvement in the Congress Party. The Tribunal expressly raised with the applicant the lack of documentation in relation to his claims as to involvement with and membership of the Congress Party.

15. The Tribunal referred to the applicant’s claims in relation to alleged attacks on him by the ADP members. The Tribunal referred to the applicant’s claims in relation to the first attack being in August 2008 and that the applicant was driving a bus when he was attacked. The Tribunal found that the applicant gave vague and confusing evidence about alleged charges brought against him relating to the first attack, which he said were dismissed.

16. In relation to the want of documentation, the applicant asserted that he did not realise that he needed to produce documents to support his claims. The Tribunal referred to the inaction by the applicant in seeking to obtain documents to support his claims. At one stage in the hearing, the applicant indicated that he was not sure whether there were any documents in relation to his membership of the Congress Party.

17. The Tribunal referred to the applicant’s evidence in relation to his support of the Congress Party and the activities that he alleged he undertook, including transport for rallies through his minibus business. The applicant gave evidence to the Tribunal that he was at risk because of his help to the Congress Party area candidates.

18. The Tribunal referred to the applicant’s travel to the United Kingdom on two occasions not being consistent with his claim for fear of harm if he returned to India.

19. The Tribunal referred, in the course of the hearing, to the applicant having arrived in Australia in December 2012 but not applying for protection until 2014. The Tribunal explored with the applicant that delay.

20. The Tribunal referred to the applicant’s claims in relation to the ADP supporters which, the applicant alleged, would find him anywhere in India.

21. The Tribunal raised with the applicant its concerns in relation to country information in respect of fraudulent documentation.

22. The Tribunal raised with the applicant country information in relation to the Congress Party, the security situation, the ADP and the legal system in India.

23. The Tribunal identified raising its concerns regarding the applicant’s claims and evidence. The Tribunal expressed its concerns as to the want of documentation by the applicant to support his claims as to involvement with the Congress Party. The Tribunal also expressed its concern in respect of the applicant delaying applying for protection. The Tribunal suggested that the applicant was not fearful of returning to India.

24. The Tribunal referred to the applicant’s inconsistent and vague evidence, including the inconsistencies between his written statement and a claimed event in 2007 compared to the claims as to difficulties in 2008.

25. The Tribunal referred to the applicant’s claim that he previously sought police protection in relation to the alleged false charges and that was not consistent with his claims that he did not believe that he would be able to obtain state protection in India.

26. The Tribunal provided the applicant until 19 May 2016 to comment or respond further to the issues raised by the Tribunal. The Tribunal had an active intellectual engagement with the content of the information provided by the applicant after the hearing.

27. The Tribunal was not satisfied as to the applicant’s claims that the applicant has a well-founded fear of persecution if returned to India.

28. The Tribunal was not satisfied as to the applicant’s credibility in relation to certain aspects of his claims. The Tribunal found the applicant’s claimed activities with the Congress Party were indicative or suggestive of someone who engaged in very low level political support activities.

29. The Tribunal referred to the fact that the applicant had not referred to the Block Youth Congress Committee in his evidence or its relationship to the Congress Party. The Tribunal found that the applicant’s evidence about his claimed involvement with the Congress Party was very general and did not provide significant details in relation to his involvement with the Congress Party.

30. The Tribunal found aspects of the applicant’s claims were vague and inconsistent, including in respect of the circumstances in which the applicant claimed he was charged with a serious offence in 2008. The Tribunal referred to the applicant claiming that he was charged but not taken before a court.

31. The Tribunal referred to the vague and inconsistent aspects of the applicant’s claims, including the dates when events occurred and the details surrounding those events and claims. Having considered the totality of the applicant’s claims and evidence and country information, the Tribunal did not accept that the applicant was a credible witness.

32. The Tribunal did not accept that the applicant has a well-founded fear of harm if returned to India either now or in the reasonably foreseeable future.

33. The Tribunal referred to the documentation produced by the applicant after the hearing. The Tribunal found that it did not assist the Tribunal to overcome its concerns in respect of the applicant’s involvement with the Congress Party. The Tribunal referred to the letter from the member of the legislative assembly which only described the applicant as an active worker and not as a member of the Congress Party.

34. The Tribunal referred to raising with the applicant its concerns as to his low-level activity and operations, operational activities in supporting a Congress Party and that he would not be at risk on that basis. The Tribunal found the applicant’s explanation in that regard to be unconvincing.

35. The Tribunal was prepared to accept that the applicant and his busses may have been used to transfer Congress Party supporters. The Tribunal, however, found this activity was part to the applicant’s operation of his business and found that this was consistent with the applicant’s involvement with the Congress Party being good for his business. The Tribunal did not accept that any business activities that the applicant engaged in, in terms of transporting Congress members on his buses, placed the applicant at risk of harm.

36. The Tribunal referred to country information and found that it did not support the applicant’s claimed risk of harm because of his support for the Congress Party.

37. The Tribunal accepted that the applicant carried out some low level functional activities on behalf of the Congress Party and referred to the letter provided by the applicant in that regard.

38. The Tribunal found the applicant’s explanation for not seeking protection in the United Kingdom to be unconvincing and vague, as well as his explanation for the delay in seeking protection in Australia.

39. Given the adverse credibility findings, the Tribunal did not accept that the applicant carried out any significant political activities for the Congress Party in India as claimed. The Tribunal found that the applicant would have provided significantly more detailed evidence about his activities on behalf of the Congress Party had he engaged in significant activities as claimed. The Tribunal was not prepared to accept that the applicant was a member of the Congress Party.

40. The Tribunal did not accept, based on the assessment of the applicant’s credibility and the evidence, that the applicant faced any incidents of harm from the members and supporters of the ADP because of his support for the Congress Party. The Tribunal did not accept that the applicant was attacked in 2008 because of his support for the Congress Party, that his brother was injured, that the applicant and his wife were threatened with harm or that the applicant’s buses were attacked because he supported the Congress Party.

41. The Tribunal was not satisfied that the applicant’s difficulties in conducting his bus business were because of any claimed support for the Congress Party. The Tribunal referred to the delay in the applicant’s sale of his buses. The Tribunal found that it did not appear to be consistent with the applicant’s claimed fear of difficulties in conducting the business.

42. The Tribunal did not accept the applicant’s claim that he was falsely accused of serious charges in around August 2008 by members and supporters of the ADP and that that was because of his support and involvement with the Congress Party. The Tribunal did not accept the applicant was charged by the Indian police because of his involvement and support of the Congress Party.

43. The Tribunal did not accept the applicant’s claim that members and supporters of the ADP had come to the applicant’s home looking for the applicant since he has been in Australia or that they have made threats to the applicant’s father about the applicant since the applicant has been in Australia. The Tribunal did not accept that the applicant’s wife and son had to relocate from the family home because of difficulties caused by the applicant’s claimed support of the Congress Party.

44. The Tribunal did not accept that the applicant faced any risk of harm on the basis of his claimed support for the Ram Rahim religion organisation.

45. The Tribunal did not accept the applicant’s explanation that the credibility issues were caused by stress or by reason of the time since the events occurred.

46. Having considered the applicant’s claims individually and cumulatively, the Tribunal did not accept that the applicant faced a real chance of serious harm for a 1951 Refugee Convention reason if he returns to India now or in the reasonably foreseeable future.

47. The Tribunal did not accept that, if the applicant is returned to India either now or in the reasonably foreseeable future and continued to be involved in the operation of the minibus business, he would face a real chance of serious harm.

48. The Tribunal did not accept that the applicant would face a real chance of serious harm, either now or in the reasonably foreseeable future, if returned to India on the basis of his claimed support for the Ram Rahim religious organisation or on the basis of his claimed support for the Congress Party.

49. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk he will be subjected to any form of harm within the definition of ss 5(1)(a) to (e) of the Act.

50. The Tribunal was not satisfied that there were substantial grounds for believing that there is a real risk the applicant would suffer harm that would involve intentional infliction of severe pain or suffering, either physical or mental, or pain or suffering, whether physical or mental, intentionally inflicted on the person such as that would meet the definition of cruel or inhuman treatment or punishment in the Act.

51. The Tribunal was not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer arbitrary deprivation of his life or the death penalty.

52. The Tribunal found that the applicant did not meet the criteria in s 36(a) of the Act. The Tribunal found that the applicant also failed to meet the criteria in s 36(2)(aa) of the Act.

53. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 17 June 2016. On 4 August 2016, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. Submissions were handed up to the Court today and marked Exhibit B. Otherwise, no other documents were filed by the applicant.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant referred to the provision of documents to the Tribunal after the hearing. It is apparent from the Tribunal’s reasons, as summarised above, that the Tribunal provided the applicant an opportunity to provide further information after the hearing and that the Tribunal had an active intellectual engagement with the further material provided by the applicant. The adverse findings by the Tribunal in relation to the applicant’s involvement with the Congress Party were open to the Tribunal for the reasons given by the Tribunal.

4. The applicant also referred to news articles which the applicant claimed supported his fear of harm if returned to India and referred to the harm the applicant would face. The applicant’s submissions in this regard were, in substance, an invitation to engage in merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. I AM GENUINE PROTECTION VISA APPLICANT AS I HAVE WELLFOUND FEAR OF DEATH IF I RETURN BACK TO MY HOME COUNTRY.

   2. I AM STILL A SUPPORTER OF CONGRESS PARTY WHICH IS THE MAIN REASON I REQUIRE PROTECTION FROM THE AKALI DAL POLITICAL PARTY WHICH IS STILL IN POWER IN PUNJAB. THEY HAVE TRIED TO MANIPULATE, TORTURE, ATTACK AND KILL ME ON MULTIPLE OCCASIONS AND THEY HAVE SUCCEEDED IN ATTACKING ME MORE THAN ONCE

   3. THE HIGH LEVEL OF CORRUPTION ADDED TO THE INTOLERANCE FOR OTHER POLITICAL OPINIONS MAKES INDIA A VERY DANGEROUS PLACE FOR ME. I AM JUST ANOTHER PERSON TO THE POWERFUL POLITICAL PARTIES AND THEY WILL STOP AT NOTHING TO FINISH ME AND ALSO HAVE NO REGRET IN DOING IT

   4. I HAVE BEEN UNDER GREAT STRESS AND DEPRESSION FROM THE CONSTANT THREAT OF RETURNING BACK TO MY HOME SITUATION WHICH MADE IT NEAR IMPOSSIBLE FOR ME TO ANSWER QUESTIONS ACCURATELY AND PHYSICALLY ATTEND INTERVIEWS.

   5. MY BUSES WERE CONSTANTLY ATTACKED BECAUSE FIRSTLY, THE AKALI LEADERS WERE TARGETING ME AS A CONGRESS SUPPORTER. AND SECONDLY, THEY WANTED TO ELIMINATE ME AS I WAS COMPETING WITH THEM. BOTH THESE FACTORS COMBINED MADE ME UNDER MORE THREAT

   6. IT IS VERY IMPORTANT TO KNOW THAT POLITICAL ATTACKS IN INDIA DO NOT DEPEND ONLY ON HOW HIGH OR LOW A PERSON IS IN THE PARTY. THE HATE IN AKALI DAL FOR CONGRESS PARTY IS SO MUCH THEY DON'T CARE WHAT LEVEL YOU STAND, THEY MUST HATE ANYONE WHO STAND UP AGAINST THEM.

   7. THE AAT RESEARCH SHOWED THERE IS CORRUPTION. ATTACKS AND POLITICAL UNREST IN INDIA BUT STILL REFUSE ME PROTECTION VISA KNOWING MY HISTORY OF ATTACKS FROM OTHER POLITICAL PARTY. THEY ALSO KNOW ABOUT HUMAN RIGHT ABUSES MADE BY INDIAN POLICE SO THEY SHOULD KNOW I CAN NOT BE PROTECTED BY THIS CORRUPT POLICE.

   8. I CAN NOT BE PROTECTED ANYWHERE IN INDIA AS THE POLITICAL PARTIES HAVE VERY FAR REACH AND ALSO OTHER PARTS OF INDIA DISCRIMINATE AGAINST THE SIKH COMMUNITY.

   9. I APPLIED FOR PROTECTION VISA. IMMIGRATION CALLED ME FOR FIRST INTERVIEW THAT I COULD NOT ATTEND DUE TO HEAVY SICKNESS, WHICH I HAD A MEDICAL CERTIFICATE FOR. I DID NOT RECEIVE NOTIFICATION FOR SECOND INTERVIEW AND IMMIGRATION REFUSED MY CASE WITHOUT NOTIFYING ME EFFECTIVELY. I BELIEVE THIS IS VERY UNFAIR AND I DID NOT GET THE LAST OPPORTUNITY TO GIVE MY STATEMENT.

   10. I APPLIED FOR AAT REVIEW AND MY APPLICATION WAS NOT ACCEPTED. I HAD GREAT EXPECTATION FROM ADMINISTRATIVE APPEALS TRIBUNAL BUT AAT DID NOT TAKE MY CIRCUMSTANCES IN TO CONSIDERATION AND JUST REFUSED MY APPLICATION AGAIN.

1. Paragraphs 1 to 9 are, in substance, a repetition of the applicant’s claims and do not articulate any relevant error by the Tribunal.

2. Paragraph 10 asserts that the Tribunal did not take into account the applicant’s circumstances. There is no circumstance identified which the Tribunal failed to take into account. The adverse findings were open to the Tribunal for the reasons given by the Tribunal.

3. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal and the Tribunal made dispositive findings in respect of the applicant’s claims which were open to it. Nothing in paragraphs 1 to 10 of the applicant’s grounds identifies any jurisdictional error.

4. In relation to the applicant’s written submissions, the Court accepts the four core contentions identified by Mr Burke on behalf of the first respondent able to be gleaned from those written submissions.

5. The first contention reflects disagreement with any adverse findings of fact. That, in substance, invites this Court to engage in impermissible merits review and does not identify and jurisdictional error.

6. The second contention is an assertion to the effect that there is no evidence before the Tribunal to find that the applicant’s claims were not genuine. This contention misunderstands the obligation on the applicant pursuant to s 5AAA of the Act and that it is the responsibility of the applicant to provide sufficient evidence to establish the applicant’s claims.

7. Further, it was open to the Tribunal to evaluate the credibility of the applicant’s claims. It is apparent from the Tribunal’s reasons that the Tribunal raised its concerns with the applicant’s evidence in the course of the hearing. The Tribunal provided logical and rational reasons, as summarised above, for the adverse findings it made. The proposition that there is no evidence to support the same is misconceived.

8. The third contention appeared to be a disagreement with the Tribunal taking into account the delay in the applicant’s application for protection. That was a logical and rational matter for the Tribunal to take into account. The applicant’s disagreement with the same does not identify any jurisdictional error.

9. The fourth contention appears to be a disagreement by the applicant as to whether or not the conclusion by the Tribunal was reasonable. The fourth contention, at least in substance, reflects an assertion that the Tribunal’s reasons were legally unreasonable in respect of the outcome. The Court has summarised the substance of the Tribunal’s reasons identifying the applicant’s claims and why the Tribunal rejected the same. This is not a case where it could be said that no reasonable Tribunal could make the adverse finding in terms of outcome under the 1951 Refugees Convention or in relation to complementary protection. The Tribunal’s reasons provide an evident and intelligible justification for the adverse outcome.

10. Nothing in the applicant’s written submissions in Exhibit B makes out any jurisdictional error.

11. As the application fails to make out any jurisdictional error and there is nothing in the applicant’s written submissions or anything said by the applicant from the bar table which makes out any jurisdictional error, the application is dismissed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 26 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  24 January 2020