BLV19 v Minister for Immigration

[2020] FCCA 506

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLV19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 506

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.438
Federal Circuit Court Rules2001 (Cth), r.44.12

Cases cited:

Minister for Immigration v SGLB [2004] HCA 32
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: BLV19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 875 of 2019

Judgment of: Judge Driver

Hearing date: 9 March 2020

Delivered at: Sydney

Delivered on: 9 March 2020

REPRESENTATION

The Applicant appearing in person

Solicitors for the Respondents: Ms. K. Gawidziel of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

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

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 875 of 2019

BLV19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

Background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 8 March 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts concerning this matter are set out in the Minister’s outline of submissions filed on 2 March 2020. 

2. The applicant is a citizen of India. He first arrived in Australia on 23 November 2014. On 2 January 2015, he lodged the visa application.[1] The applicant was invited to attend an interview with the delegate on 19 February 2016.[2] On 4 March 2016, the delegate refused the application.[3] The applicant applied to the Tribunal for review of the delegate’s decision on 4 April 2016.[4] The applicant was invited to, and attended, a hearing on 12 June 2018.[5] The applicant was then invited to, and attended, a further hearing before the Tribunal on 8 February 2019.[6]

   [1]  Court book (CB) 1 – 50

   [2] CB 75 - 78

   [3] CB 79 - 92

   [4] CB 94 - 100

   [5] CB 146 - 149

   [6] CB 203 – 204

3. On 8 March 2019, the Tribunal affirmed the decision of the delegate.[7]

   [7] CB 232 - 246

4. The Tribunal did not accept that the applicant was credible, and did not accept any of the claims made by him. The Tribunal made the following factual findings:

   a)the applicant’s evidence in relation to where he lived prior to departing for Australia in 2014 was not consistent with his claims as to why he cannot return to India. The Tribunal did not accept that the applicant would be able to live at the same address and continue his employment as a driver up until he departed for Australia if he was being threatened, harassed and severely beaten up by “goondas”;[8]

   b)the applicant provided confused and conflicting evidence about what happened in India to cause him to leave. Although his written statement provided that the applicant went to live in a town 50 kms away from his home, this conflicted with his evidence at hearing that he lived in his home until he departed for Australia;[9]

   c)although the applicant said that the inconsistencies in his evidence were due to memory problems, the Tribunal noted that no argument regarding his memory problem had been raised until he was questioned about his evidence at hearing, and there was no medical evidence before the Tribunal to indicate that the applicant suffered from memory problems;[10]

   d)the Tribunal expressed concern that the applicant returned to India for a month between 13 October and 14 November 2017, and told the applicant that this was not consistent with his claims that he left India because he feared harm. The Tribunal did not accept the applicant’s response that he returned to India to visit his ill father, did not stay in his hometown, and no one was aware that he had returned;[11]

   e)although the applicant initially submitted in a written statement that, now that his father has passed away, his wife and daughter in India are ‘under the threat of their life’, he advised the Tribunal that his wife and daughter are able to continue living in the area and attending school because there is no trouble for them in Kerala, but that his daughter will be killed if he returns to India;[12]

   f)although the applicant told the Tribunal that the police in India had filed false charges against him, he agreed that this is not contained in his written statement accompanying his visa application. The Tribunal did not accept the applicant’s argument that the person who prepared the application for him forgot to include that information, nor did it accept his argument that the charges are not an issue for him anymore, as the Communist Party is in power in India;[13]

   g)the Tribunal did not consider photographs provided by the applicant as evidence that he attended rallies and was involved in the Communist Party India, Marxist (CPI(M)) to be reliable evidence in supporting his claims about why he left India and why he cannot return;[14]

   h)although the applicant told the Tribunal that the pollution from a company operating a business caused the deaths of his mother and father, he agreed that the medical evidence produced does not support that conclusion.[15]

   [8] CB 239 [37]

   [9] CB 239 – 240 [39]

   [10] CB 240 [40]

   [11] CB 240 – 241 [44] – [46]

   [12] CB 241 [47]

   [13] CB 241 – 242 [49]

   [14] CB 242 [52]

   [15] CB 242 – 243 [53]

5. Having found that the applicant was not a credible witness, the Tribunal made the following ultimate factual findings:

   a)it did not accept that the applicant was ever attacked and injured by “goondas” or “company men” in either his hometown or in another named town, nor that he was attacked many times in the other town and had to move to many places in India;[16]

   b)it did not accept that the applicant was suffering from memory problems which explained the inconsistencies in his evidence;[17]

   c)it did not accept as true that the applicant did not return to his home area when he returned to India in 2017 and that no one knew he was there at the time;[18]

   d)it did not accept that any members of the applicant’s family are, or have been, threatened, harassed, or humiliated in India, or that they are continuing to receive threats, including threats by anonymous calls to kill the applicant, if he returns to India;[19]

   e)it did not accept that the applicant fears his daughter and his wife will be harmed or killed if he returns to India or that there is a real chance or real risk that they, or himself, will be threatened, killed, or harmed if he returns there;[20]

   f)it did not accept that there are false charges pending against the applicant in India, or that false charges were made against him at any time by either the police or company people;[21]

   g)it did not accept that the applicant will suffer harm amounting to serious harm because of the general pollution caused by the company, or a real risk that he will face significant harm in his country because of the pollution caused by the company.[22]

   [16] CB239 – 240 [39]

   [17] CB 240 [40]

   [18] CB 241 [45]

   [19] CB 241 [47]

   [20] CB 241 [48]

   [21] CB 241 – 242 [49]

   [22] CB 242 – 243 [53]

6. The Tribunal therefore concluded that the applicant was not a refugee for the purposes of s.36(2)(a) of the Migration Act 1958 (Migration Act), nor was there a real risk he would suffer harm as defined under s.36(2)(aa) of the Migration Act.

7. These proceedings began with a show cause application filed on 8 April 2019.  It is apparent from that application that the applicant seeks a reconsideration of his claims for protection.  The application is, on its face, defective in that it does not assert any jurisdictional error by the Tribunal.  It is, however, supported by two affidavits.  The first was filed with the application and attaches the Tribunal decision.  The second was filed on 14 August 2019 and annexes a statement by the applicant verified in India.  That refers to the death of the applicant’s father.  It refers also to the applicant’s fears for his own safety. Again, this bears on the merits of the Tribunal decision, which are beyond the scope of this proceeding. 

8. I invited oral submissions from the applicant this morning.  He told me that he was anticipating receipt of a first information report from India next month.  I pointed out to him that that was unlikely to assist me as it would not be a document that was considered by the Tribunal.  Likewise, the applicant told me that the death of his father post-dated the Tribunal decision. 

9. The applicant’s submissions did not rise above an argument about the merits of his claims for protection.  As I pointed out to the applicant, if the Tribunal decision is a legally valid one, only the Minister can change it.  The Minister’s submissions attempt to divine any legal argument from the material submitted by the applicant. I agree with those submissions.

10. The sole ground made by the applicant does not raise any argument of jurisdictional error in the Tribunal’s decision.

11. Insofar as the ground requests the Court to ‘reconsider my application for protection visa’, the Court cannot review the factual merits of the Tribunal’s decision.[23]

    [23] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [272]

12. As the ground does not identify any error in the Tribunal’s decision, it must fail.

13. In his written statement affixed to an affidavit filed on 14 August 2019, the applicant argues that the Tribunal did not properly check his evidence.

14. Insofar as the applicant argues that the Tribunal did not consider the entirety of his evidence, the Tribunal expressly considered the evidence provided by the applicant in support of his application for the visa, and lists those documents at [19].[24] The Tribunal also expressly considered the evidence provided by the applicant prior to the hearing on 12 June 2018[25] as well as the documents provided by the applicant at both Tribunal hearings.[26] The applicant gave oral evidence at the hearing on 12 June 2018, as well as the hearing on 8 February 2019. There is no evidence to support the argument that the Tribunal did not consider the applicant’s evidence.

    [24] CB 235

    [25] CB 235 [20]

    [26] CB 236 [24]

15. Insofar as the applicant argues that the Tribunal did not fully investigate his claims, it is well established that the Tribunal does not have a general duty to make its own enquiries in order to make the applicant’s case or investigate an applicant’s claims.[27]

    [27] Minister for Immigration and Multicultural v SGLB [2004] HCA 32 at [43]

16. This ground must therefore fail.

17. The Minister’s submissions also deal with a purported certificate purportedly issued under s.438 of the Migration Act. It is plain that the certificate was invalid and that the documents purported to be covered by it were irrelevant to the Tribunal’s review. I agree with the Minister’s submissions concerning the certificate.

18. The Tribunal detailed its disclosure of the s.438 certificate to the application at the hearing.[28] The Tribunal indicated that in its view the certificate was not valid, that the material covered by the certificate was not relevant to the claims made by the applicant and that the Tribunal would not take it into account in determining the application for review. The applicant was invited to make comment about the certificate, but the applicant indicated that he had no comment to make.

    [28] CB 236 [22]

19. As the Tribunal disclosed the existence of the certificate to the applicant, no issue of procedural fairness arises.[29]

    [29] Minister for Immigration and Border Protection v SZMTA (2019 264 CLR 421

20. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed under Rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth) (Federal Circuit Court Rules)

21. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant stated he was not working, but the issue for the Court is whether the costs have been reasonably and properly incurred.  I am satisfied that they have been.   

22. I order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 of the Federal Circuit Court Rules.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  13 March 2020