BSB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 393
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BSB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 393
File number(s): MLG 809 of 2017 Judgment of: JUDGE LAING Date of judgment: 17 May 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a protection visa – applicant previously refused a protection visa – whether the Tribunal failed to consider properly the facts and evidence before it – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 36(2)(a), 36(2)(b), 36(2)(c), 477(1), 477(2) Cases cited: AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424; 244 FCR 131
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 17 May 2022 Place: Sydney Solicitor for the Applicant The Applicant appeared by video link Solicitor for the First Respondent Mr Orchard, Sparke Helmore, appeared by video link ORDERS
MLG 809 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BSB17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
17 MAY 2022
THE COURT ORDERS THAT:
1.The First Respondent's name be changed to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs."
2.The application be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division
2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 not be entered until he date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a protection visa.
BACKGROUND
The applicant in these proceedings is a citizen of India.
The applicant arrived in Australia on 9 June 2010 as the holder of a Class UC (Business) Subclass 456 (Short Stay) visa that was granted on 26 May 2010 and ceased on 9 September 2010.
The applicant first applied for a protection visa on 20 July 2010. The application was refused by a Delegate of the Minister on 28 March 2011. Subsequent applications to the Refugee Review Tribunal (as it was), the Federal Court and the High Court, and for Ministerial Intervention, were unsuccessful.
On 2 October 2013, the applicant lodged a further application for a protection visa, following the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (SZGIZ).
The Delegate refused to grant the visa on 28 April 2015.
The applicant sought review of the decision by application to the Tribunal on 8 May 2015. He attended a hearing before the Tribunal on 21 February 2017.
On 22 February 2017, the Tribunal wrote to the applicant inviting him to comment on or respond to certain information. The applicant responded to the invitation on 10 March 2017.
On 30 March 2017, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
Having regard to the decision in SZGIZ, the Tribunal concluded that it did not have the power to consider the applicant’s claims under the Refugee Convention criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (Act) (at [5]). The Tribunal observed that the issue before it was therefore whether the applicant met the criteria in ss 36(2)(aa), 36(2)(b) or 36(2)(c) of the Act (at [11]).
The Tribunal outlined the protection claims that had been made by the applicant. The Tribunal noted that in the applicant’s most recent visa application he claimed to have joined the Shiv Sena political party and subsequently left to join another political party, the Samajvadi party. The applicant claimed that Shiv Sena considered him to be a traitor that he faced a real risk of harm if he returned to India. The applicant made further claims to face harm from a former friend, whom he claimed was jailed after the applicant commenced proceedings against him regarding a cheque that had bounced. The applicant claimed that his former friend had joined together with Shiv Sena and had been threatening the applicant and his family (at [12] – [19]).
The Tribunal did not accept that the applicant had ever joined the Shiv Sena or the Samajvadi political parties as claimed due to significant inconsistencies in his evidence since his first application for a protection visa in 2010. The applicant had given inconsistent evidence regarding when he joined the Shiv Sena party, how long he was a member of the party and about his political activities. He had also given inconsistent evidence about the donations he claimed Shiv Sena had demanded from him after he cancelled his membership. The Tribunal did not accept that the significantly inconsistent evidence that he had given in this regard was explicable merely by memory problems as he had claimed (at [32]-[38]).
The Tribunal accepted that the applicant had shown some superficial knowledge of the Shiv Sena party. However, it found aspects of his evidence regarding the party’s claimed pursuit of him to be “vague and unsatisfactory”. The applicant said he hadn’t been involved with a political party before and that he did not know much about Shiv Sena when he joined, but still claimed to have donated about 10% of his annual income to the party. Despite claiming to have been threatened, abused and assaulted when he left, he claimed to have immediately gone on to join another political party. Whilst the applicant claimed in his visa application that he became an enemy of Shiv Sena due to his support of the Samajvadi party, at hearing he gave evidence that he was pursued because he cancelled his membership and Shiv Sena wanted him to continue his donations (at [39]).
The Tribunal also found that the applicant lacked credibility based on his evidence that he had submitted false documents to the Department in order to obtain a business visa (at [40]).
On the evidence before it, the Tribunal did not accept that the applicant was a member of Shiv Sena at any time in India or that he undertook any political activities or made financial donations to the party. It followed that the Tribunal did not accept that the applicant had faced the resulting issues that he claimed from Shiv Sena. The Tribunal also did not accept that the applicant subsequently joined the Samajvadi party or engaged in political activities with that party (at [41]).
The Tribunal accepted that the applicant had commenced legal action against his former friend in relation to an unpaid loan and that his former friend had been jailed for a few days in 2007 for failing to attend a hearing. The Tribunal accepted that the former friend had continued to stall proceedings and that the proceedings had not been concluded. However, based on its concerns regarding the applicant’s credibility, the Tribunal did not accept that the former friend had ever threatened, assaulted or harmed the applicant or his family. The Tribunal did not accept that the applicant faced harm from his former friend for any reason (at [43]-[44]).
The Tribunal noted that the applicant had confirmed at hearing that he did not fear harm from any person other than his former friend or from Shiv Sena (at [45]).
By reference to these findings, the Tribunal did not accept the applicant faced a real risk of significant harm upon returning to India or that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act (at [46]-[47]). The Tribunal observed that there was no suggestion that the applicant met the alternative criteria as a member of a family unit (at [48]).
The Tribunal therefore concluded that the applicant did not meet the criteria for the visa and affirmed the Delegate’s decision (at [49]).
PROCEEDINGS BEFORE THIS COURT
An application for judicial review was filed by the applicant on 21 April 2017 containing the following sole ground:
Facts and Evidences have not been considered properly.
The application when filed sought an extension of time under s 477(2) of the Act. However, the application was made within 35 days of the Tribunal’s decision and was therefore filed within time: s 477(1).
At the hearing of this matter, the applicant appeared via Microsoft Teams. The scope and limitations of the Court’s powers in contrast to those of the Tribunal were explained to the applicant. The applicant was invited to explain what facts or evidence he contended that the Tribunal failed to consider properly.
The applicant explained that his essential complaint was that the Tribunal did not accept his claims for protection, which were right. This seeks to engage the Court in merits review. As I endeavoured to explain to the applicant during the hearing, such a review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
As set out earlier in these reasons, the applicant’s claims before the Tribunal were not complex. The applicant claimed to face harm for reasons flowing from his membership with Shiv Sena and subsequently Samajvadi. He also claimed to face harm from a former friend on account of a dispute regarding a loan. The Tribunal considered the applicant’s evidence in relation to these claims that had been given at various stages of the process in some detail in its decision. Notably, it was the Tribunal’s detailed analysis of the various inconsistencies in the evidence that he had given that informed the Tribunal’s adverse credibility findings. Those findings informed the Tribunal’s rejection of the applicant’s claims to have been a member of either political party, and to face harm from his former friend. The applicant has identified no evidence or claim that was put before the Tribunal that it failed to consider.
In these circumstances, no jurisdictional error has been demonstrated by the sole ground relied upon by the applicant.
The Minister has also raised as a potential issue the Tribunal’s finding that it had no power to consider the applicant’s claims against s 36(2)(a) of the Act. This was in circumstances where the applicant had previously been refused a visa on the basis of that criterion. As the Minister has submitted, however, the Tribunal’s approach was supported by the decision of Markovic J in AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424; 244 FCR 131 (see also Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366). I agree that no relevant error is disclosed by the approach taken by the Tribunal.
CONCLUSION
For these reasons, the application is dismissed.
The Minister also seeks an order that his name be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” to reflect a change in name more generally. I will make that order.
The Minister seeks costs fixed in the amount of $5,000. I accept that is an appropriate amount, being substantially less than the scale that is presently in place and that which was in place at the time the application to this Court was made. I will so order.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Laing. Associate:
Dated: 26 May 2022
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