BTA16 v Minister for Immigration

[2017] FCCA 1121

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTA16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1121

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – the Tribunal complied with its statutory obligations in the conduct of the review – the applicant had a real and meaningful hearing before the Tribunal – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: BTA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1935 of 2016

Judgment of: Judge Street

Hearing date: 26 May 2017

Date of Last Submission: 26 May 2017

Delivered at: Sydney

Delivered on: 26 May 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Moss
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1935 of 2016

BTA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 June 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of India and his claims were assessed against that country. The applicant arrived in Australia on 16 April 2009 on a TU 572 Student visa, later changing to a TU 573 Student visa which was valid until 30 September 2013. The applicant then remained an unlawful non-citizen in Australia from 1 October 2013 until he was detected by a Compliance unit on 5 May 2014. The applicant then applied for protection on 20 May 2014. 

3. The applicant claimed to fear harm by reason of being a Muslim, by reason of a dispute with his uncle in India and by reason of his father’s political activity. On 12 February 2015 the delegate found that the applicant failed to meet the criteria under the Act and refused to grant the applicant a protection visa.

The Tribunal’s decision

1. On 26 February 2015 the applicant applied for review to the Tribunal.  By letter dated 18 April 2016, the applicant was invited to attend a hearing on 14 June 2016.  The applicant appeared before the Tribunal on that date to give evidence and present arguments.

2. The Tribunal in its reasons identified the applicant’s background and set out the relevant law. The Tribunal summarised the applicant’s claims. The Tribunal confirmed with the applicant that he had experienced no past harm in India due to his religion but that he feared harm on return from his uncle and due to being a Muslim.

Consideration of refugee convention criteria

Harm feared from the applicant’s uncle

1. The Tribunal noted that despite the applicant not mentioning in his written claims, during the interview with the delegate and again before the Tribunal, the applicant stated that he feared harm from his uncle on return to India. The Tribunal was prepared to accept that the applicant worked as a subcontractor to his uncle and that his uncle owes him money in connection with this. The Tribunal noted that the applicant claimed that his uncle will harm him because he believes he reported him to the authorities in Australia and spoiled his good name.

2. The Tribunal found that it was significant that the applicant’s uncle had not harmed him or his father whilst they had been in Australia despite the fact that the applicant was for a period of time, remaining unlawfully in the country and therefore not likely to raise a complaint with the authorities and despite the fact that the applicant and his father have encountered his uncle publicly on occasions. The Tribunal noted that the applicant’s uncle has not harmed or threatened his remaining family members in India.

3. The Tribunal was not persuaded the applicant’s uncle has cause to believe the applicant has raised any complaints against him with the authorities in Australia and his uncle’s willingness to return to India for extended periods of time does not persuade the Tribunal he is concerned about any reputational damage to him, particularly if the applicant’s claims about his social standing are believed. The Tribunal found that it could see no reason why the applicant’s uncle would harm him. The Tribunal was not satisfied there was a real chance the applicant would face serious harm on return to India from his uncle.

Harm feared from his father’s political activity

1. The Tribunal noted that the applicant revealed his father is now in Australia and also seeking protection. The applicant claimed concern around his father’s political activities.  The Tribunal was not persuaded that the applicant’s father was exposing any political wrongdoing in India or that he was threatened or harmed for that reason or that the applicant would face serious harm on return to India for this reason.  The Tribunal asked the applicant whether he was involved in any political activity in India and the applicant indicated that he was not.

Harm feared as a Muslim

1. The Tribunal returned to the issue of the applicant’s claim to fear harm by reason of being a Muslim. At the hearing, the Tribunal raised with the applicant that he claimed no previous harm in India on account of his religion and given the country information, the Tribunal was not persuaded the applicant will be targeted or systematically discriminated against on his return to India because he is a Muslim. In response, the applicant referred to the problems that he had with his uncle and his father’s claimed political activity. The Tribunal found that it did not accept the applicant has a well-founded fear of persecution in India for reason of his religion. 

Harm feared as a result of corruption and poverty in India

1. The Tribunal referred to the applicant’s claim that there was corruption and poverty in India. The Tribunal was not satisfied there was a real chance the applicant would face serious on return to India for these reasons. The Tribunal found that it was not persuaded the applicant was at risk of serious harm on return to India on account of the poverty levels in the country. The Tribunal was not prepared to accept that there is a real chance the applicant would suffer serious harm on return to India in connection with his health and or any perceived or real lack of government support in this respect.

2. Having considered the claims individually and cumulatively, the Tribunal did not accept that there is a real chance the applicant will suffer serious harm on return to India for a Convention reason. The Tribunal was not satisfied the applicant is a person in respect of whom the State has protection obligations under the Refugees Convention. The Tribunal found the applicant did not satisfy the criteria under s.36(2)(a) of the Act.

Consideration of complementary protection criteria

1. The Tribunal was not satisfied there are 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 that he will suffer significant harm from his uncle, or his father’s alleged involvement in political activities, by reason of being a Muslim or practicing his religious belief, by reason of harm from corruption, poverty, or the lack of government provided health assistance. The Tribunal found the applicant was not a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act and affirmed the decision of the review.

Before this Court

1. On 29 September 2016 the Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant has filed an affidavit annexing the transcript. The Transcripts reveals the Tribunal raised with the applicant, concerns in relation to the applicant’s credibility in respect of his claims over the course of the hearing.

2. The grounds in the application are as follows:-

   1. The Tribunal Member misunderstood the fear of harm and persecution I will face due to being Muslim. I will provide copy of the transcript to demonstrate that the Member of the Tribunal failed to accept the harm I will face if I return to India at the hand of my Uncle and the involvement of my father in political activities.

   2. Contrary to the finding made by the Tribunal I do satisfy the law on the basis of member of the same family unit.

Applicant’s submissions form the bar table

1. From the bar table, the applicant maintained that the Tribunal did not consider his fear of harm from his uncle and that he could not go back to India because his uncle would harm him or kill him. It is apparent on a fair reading of the Tribunal’s reasons, that the Tribunal properly understood the applicant’s claimed fear of harm and made adverse findings in relation to that claimed fear of harm that were open to the Tribunal and which cannot be said to lack an evident and intelligible justification. Nothing said by the applicant from the bar table identified any jurisdictional error. 

Consideration

Ground 1

1. In relation to ground 1, there is nothing on the face of the Tribunal’s reasons to indicate that the Tribunal misunderstood the applicant’s claimed fears of harm or the applicant’s evidence. Rather, ground 1 reflects a disagreement with the adverse findings by the Tribunal.  On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, including the transcript, the applicant had a real and meaningful hearing.

2. On the face of the material before the Court, the applicant was not the subject of any denial of procedural fairness in the conduct of the review. The reference in ground 1 to the transcript does not advance any error. The transcript does identify the applicant raising his claimed fear of harm in respect of his uncle and his father’s political activities and the Tribunal raising issues with the applicant in that regard. Nothing in ground 1 identifies any jurisdictional error. 

Ground 2

1. Ground 2 in essence seeks to cavil with the adverse findings by the Tribunal and does not identify any jurisdictional error. On the material before the Court, the Tribunal correctly identified the relevant law in its decision and this not an application in the applicant could be entitled to protection on the basis of being a member of the family unit and of his father.  The application being considered by the Tribunal was the applicant’s application for protection not that of his father.  No jurisdictional error is made out by ground 2. 

Conclusion

1. The application fails to make out any jurisdictional error.  The application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 June 2017