BSQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 508
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BSQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 508
File number(s): MLG 815 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 27 June 2022 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) visa – adverse credibility findings – where the applicant challenges the Tribunal’s choice and assessment of country information – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), s 36 Cases cited: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 9 March 2022 Date of hearing: 9 March 2022 Place: Melbourne Solicitors for the Applicant: The Applicant appeared in person Solicitors for the Respondent: Ms I Ward of Sparke Helmore Lawyers ORDERS
MLG 815 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BSQ17
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
27 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The applicant’s application filed on 18 April 2017 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the sum of $5,000.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 17 March 2017. By its decision, the Tribunal affirmed a decision of the delegate of the (then) Minister for Immigration and Border Protection (‘the Minister’) to refuse the applicant’s application for a Protection (Class XA) visa (‘protection visa’).
BACKGROUND
The applicant is a citizen of India from the State of Gujarat. The applicant arrived in Australia on a student visa on 20 January 2015. After departing India on 27 May 2014, but prior to arriving in Australia, the applicant resided in New Zealand on a student visa.[1]
[1] Court book at page 71.
Application for protection visa on 3 February 2015
On 3 February 2015, the applicant applied for a Protection (Class XA) visa.[2]
[2] Court book at page 58.
In his application, in response to a question about the harm he experienced in India, the applicant variously describes having been threatened and beaten by people from whom he borrowed money for his education.[3] He states that if he were returned to India, he would have to ‘work as a slave’ for those people and ‘[he] will have the chance to lose [his] life’.[4]
[3] Court book at page 31.
[4] Court book at page 32.
The applicant also makes reference to being unable to relocate from Gujarat to Maharashtra, because people ‘chased’ him there.[5]
[5] Court book at page 31.
Also at pages 36 to 38 of the court book is a statement made by the applicant, titled ‘My claim’, accompanying his protection visa application. In this statement, the applicant makes further claims about his reasons for leaving India and his fears if he were forced to return.
In summary, the applicant claims that:
(a)he joined the Akhil Bhartiya Vidhayarthi Paristad (‘ABVP’) party, which is part of the Bharitaya Janata Party (‘BJP’), as a junior student member;
(b)in 2002, riots took place which claimed nearly 10,000 lives. The National Students Union of India (‘NSUI’), which is part of the Congress Party, blamed the ABVP and BJP for the riots;
(c)he participated in some relief work following the riots in his capacity as a member of the ABVP;
(d)one day, he was attacked with sticks and stones by some members of the NSUI, and sustained scratches. Following this incident, he left the ABVP to focus on his studies on the advice of his father;
(e)on another occasion, the applicant was once again stopped by supporters of the NSUI who began to hit him after he refused to join their party;
(f)the applicant went to the NSUI office with his father to complain about the incident, where the applicant recognised one of the members who attacked him. The member denied this having occurred and threatened the applicant and his father that if they made a complaint, ‘they will see us’;
(g)the applicant and his father also attended upon the police station to make a complaint about the incident, but the police refused to take action after they were unable to obtain a letter of recommendation from an ABVP official and unwilling to pay a bribe;
(h)following this, NSUI members threatened and attacked the applicant on multiple occasions, as a result of which he was unable to leave his home and forced to drop out of his studies. His father sent him to New Zealand to complete his studies; and
(i)the ABVP refused to assist him unless he re-joined the party, which he refused. Moreover, the police continued to refuse to listen to his complaints.
On 4 February 2015, the applicant was invited to contact the Department within 7 days if he wished to arrange an interview to discuss his claims for protection. The delegate’s decision records that the applicant did not make contact to arrange such an interview.[6]
[6] Court book at page 74.
Decision of the delegate on 17 April 2015
On 17 April 2015, the delegate refused to grant the applicant a protection visa on the basis that he did not find the applicant’s claims to be credible.[7]
[7] Court book at page 66.
Application to the Tribunal on 14 May 2015
On 14 May 2015, the applicant applied to the Tribunal for review of the delegate’s decision.[8]
[8] Court book at pages 78 to 79.
On 31 January 2017, the applicant wrote to the Tribunal advising that he would be unable to attend in person at the Tribunal for a hearing as he was the subject of a home detention order,[9] which he attached to his correspondence.[10]
[9] Court book at page 81.
[10] Court book at page 86.
On 7 March 2017, the applicant appeared at the hearing before the Tribunal, which was conducted by telephone.[11] The hearing was adjourned to allow the applicant to obtain an interpreter, despite his previous indication that he did not require one.[12]
[11] Court book at page 95.
[12] Court book at page 92.
On 10 March 2017, the applicant attended the rescheduled hearing before the Tribunal with the assistance of a Gujarati interpreter, again by telephone.[13]
[13] Court book at pages 106 to 108.
Decision of the Tribunal on 17 March 2017
On 17 March 2017, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa. The Tribunal’s decision record is at pages 111 to 119 of the court book.
At paragraphs [1] to [4], the Tribunal outlines the background to the applicant’s application for review, including the basis of the delegate’s decision to refuse the applicant a protection visa.
At paragraphs [5] to [9] of the decision record, the Tribunal goes on to summarise the applicant’s claims for protection. Having considered this, the Tribunal did not accept that the applicant was a truthful witness and found that he had manufactured his claims to fear harm.[14]
[14] Tribunal decision record at paragraph [15].
The Tribunal accepted that the applicant was aware that the ABVP is a student organisation which supports the BJP.[15] While the Tribunal also accepted that the applicant had not claimed to have had an extensive role in the ABVP or the BJP, it considered that the applicant only demonstrated an extremely limited understanding of the ABVP or BJP and was not able to articulate the aims or principles of these organisations with any precision.[16]
[15] Tribunal decision record at paragraph [19].
[16] Tribunal decision record at paragraphs [18] to [19].
Moreover, the Tribunal found that the applicant’s oral evidence was inconsistent with his written claims with respect to his involvement with these organisations. For example, the Tribunal points to the fact that in his written statement of claim, the applicant claimed that he initially joined the ABVP because he was a ‘bright student who was interested in politics and social work’, however, in his oral evidence, the applicant indicated that he was only involved in one election in 2012 and it was as a result of some negative comments that he made about the Congress Party during that election campaign at Town Hall that he was attacked.[17]
[17] Tribunal decision record at paragraphs [19] to [20].
The Tribunal further noted that the incident at Town Hall was not referenced by the applicant in his written application, nor did the applicant indicate in his written statement that he had ever lived in Ahmedabad, despite his indication at the Tribunal hearing that he hid at his cousin’s house in Ahmedabad between 2012 and 2014.[18]
[18] Tribunal decision record at paragraph [22].
The Tribunal did not accept the applicant’s explanation that these considerable inconsistencies were due to his only including the ‘big issues’ in his written application, and that he was telling the Tribunal the ‘small things’ at the hearing. Rather, the Tribunal considered that the inconsistencies were due to the applicant having fabricated his claims to the Department, and having forgotten those fabricated claims, was again manufacturing evidence at the hearing.[19]
[19] Tribunal decision record at paragraph [23].
In relation to the applicant’s claims that he was followed to New Zealand and attacked by members of the NSUI, the Tribunal again noted that this claim was not raised by the applicant in his written application.[20] The Tribunal then went on to query why members of the NSUI would have interest in harming the applicant in New Zealand, given his very limited involvement in the ABVP, and further questioned why the applicant did not report the assault to the New Zealand police. The Tribunal found the evidence in relation to this incident had been fabricated in an attempt to explain why the applicant had not remained in New Zealand.[21]
[20] Tribunal decision record at paragraph [22].
[21] Tribunal decision record at paragraph [25].
The Tribunal noted that the applicant had not made any claims to fear harm in India because of his criminal convictions and home detention in Australia and it was not satisfied that there was a real chance that he would suffer serious harm or real risk that he would suffer significant harm for this reason.[22]
[22] Tribunal decision record at paragraph [26].
Ultimately, as noted, the Tribunal did not accept any of the applicant’s claims, including his claims to fear harm from persons who loaned him money for his studies.[23] On balance, the Tribunal found that the applicant did not have a political profile at the time he left India, nor that he will have a political profile and have any involvement in student politics upon his return. Therefore, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution or that there was a real risk he would suffer significant harm on return to India.[24]
[23] Tribunal decision record at paragraph [26].
[24] Tribunal decision record at paragraph [27].
On this basis, the Tribunal was not satisfied that the applicant met the refugee criterion in section 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’), nor was it satisfied that he met the complementary protection criteria in section 36(2)(aa) of the Act.[25]
[25] Tribunal decision record at paragraphs [28] to [29].
PROCEEDINGS IN THIS COURT
On 21 April 2017, the applicant filed an application for judicial review of the Tribunal’s decision to this court, along with a supporting affidavit.
Orders were made by Registrar Luxton on 8 November 2017 which provided, amongst other things, for the applicant to have leave to file and serve any amended application with proper particulars of the grounds of the application 28 days before the final hearing.
The applicant represented himself at the hearing before me with the assistance of a Gujarati interpreter. The applicant confirmed that he has not filed any such amended application, or any further affidavit material, pursuant to the November 2017 orders.
At the commencement of the hearing, and after explaining the role of this court in a judicial review application and turning to the specific grounds of review in his application, I invited the applicant to explain why he believed the Tribunal’s decision was affected by jurisdictional error. The applicant indicated that he wished to rely upon the grounds of review as set out in his application, and that he did not have anything further to add by way of submissions.
In his application for judicial review, the applicant sets out three grounds for review, which are without any particulars:
1. I applied for PROTECTION VISA to department of immigration which was refused.
2. Then I apply to AAT for review of that decision. Which is affirms by tribunal.
3. While taking the decision Tribunal only consider data collected from internet and Wikipedia which can be edited and entered by any one and that is not reliable source of evidence in the decision tribunal put name of website which is official ABVP’s website they will not put their negative details on their website which is not taken in to account by tribunal.[26]
[26] Errors in original.
The applicant’s supporting affidavit of 18 April 2017 notes that he came to Australia on a visitor visa and attaches a copy of the Tribunal’s decision record. The applicant’s affidavit is otherwise in the same terms of ground 3 of his judicial review application.
I will turn now to consider each of these grounds of review raised by the applicant.
GROUNDS OF REVIEW
Grounds 1 and 2
Grounds 1 and 2 set out the procedural history of this matter and do not identify any alleged error in the Tribunal’s decision that may be said to constitute a ground of review. Therefore, grounds 1 and 2 do not disclose any jurisdictional error in the Tribunal’s decision.
Ground 3
By ground 3, the applicant appears to question the Tribunal’s choice of country information, taking particular issue with the Tribunal’s choice of country information from the ‘internet and Wikipedia’, which he claims to be unreliable. In addition, the applicant contends that in making its assessment of country information, the Tribunal failed to consider that the ABVP would not put negative information about it on its website.
The choice, assessment of, and weight to be given to country information is a factual matter for the Tribunal, not the court on review.[27] In any event, it is clear from a fair reading of the Tribunal’s reasons that in finding that the applicant had fabricated his claims, the Tribunal considered in detail the multiple, considerable inconsistencies between the applicant’s written submissions and his evidence given at the Tribunal hearing. It was open to the Tribunal to obtain and rely upon the country information that it considered appropriate to assess the credibility of the applicant’s evidence. The Tribunal’s conclusions and observations were reasonably open to it based on the applicant’s own evidence, in addition to the country information before it.
[27] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] to [13].
In relation to the applicant’s contention that the ABVP would not put negative information about itself on its website, I accept the submissions for the Minister that the Tribunal only referred to the ABVP’s website in its decision record in the context of assessing the applicant’s understanding of the organisation’s aims and objectives.[28]
[28] Tribunal decision record at paragraph [19].
Moreover, and more importantly, I accept the Minister’s submission that the applicant did not claim to fear harm from the ABVP, but from the NSUI. Therefore, in circumstances where the applicant has not previously raised any fears of harm from the ABVP, the applicant has not identified the relevance, if any, that any negative, or indeed any positive, information about the ABVP would have to the Tribunal’s assessment of the applicant’s claims for protection.
I also note that the Tribunal’s decision records the applicant giving evidence that the ABVP ‘help poor people who cannot pay their fees and people are motivated to join the ABVP for this reason because it offers many type[s] of help’.[29] The Tribunal’s own description of the ABVP’s aims and objectives, in turn, is neither positive nor negative.[30] The Tribunal does not take any apparent issue with the applicant’s positive description of the ABVP. Rather, in making its adverse credibility findings, the Tribunal takes issue with the applicant’s inability to articulate the ABVP’s aims or objectives with any precision.
[29] Tribunal decision record at paragraph [18].
[30] Tribunal decision record at paragraph [19].
For each of these reasons, ground 3 is therefore not made out.
There is no other apparent error on the face of the Tribunal’s decision record. Ultimately, the applicant’s application takes issue with the conclusions reached by the Tribunal. Those conclusions were reasonably open to it on the evidence before it.
CONCLUSION
For each of these reasons, the applicant’s application ought to be dismissed with costs.
The Minister submits that costs should be fixed in the sum of $5,000, which counsel for the Minister submitted was below scale. No objection was taken, and in circumstances where this amount is below scale costs, I find it appropriate to make such an order.
I also note that the first respondent seeks an order amending its name. Again, no objection was raised and I therefore make that order as sought.
I therefore make the orders as set out at the commencement of these reasons.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 27 June 2022
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