BVU15 v Minister for Immigration

[2016] FCCA 1568

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1568

Catchwords:
MIGRATION – Administrative review – Protection Visa refused – application dismissed – applicant pay respondent’s costs.

Legislation:

Migration Act 1958 (Cth), s.424A

SZBYR v the Minister for Immigration and Citizenship [2007] HCA 26

Applicant: BVU15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 822 of 2015

Judgment of: Judge Vasta

Hearing date: 13 June 2016

Date of Last Submission: 13 June 2016

Delivered at: Brisbane

Delivered on: 13 June 2016

REPRESENTATION

The Applicant appearing on his own behalf.

Counsel for the First Respondent: Ms Stoker

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the Application filed 9 September 2015 be dismissed.

2. That the Applicant pay the First Respondents costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 822 of 2015

BVU15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application dated 9 September 2015, BVU15 seeks this Court to review a decision of the Administrative Appeals Tribunal (“AAT”); such decision having been made on 19 August 2015.  That decision affirmed an earlier decision by the delegate for the Minister not to grant a protection visa to the Applicant. 

2. A short history is that the Applicant comes from Punjab in India and he claims to be a follower of Dera Sacha Sauda (“DSS”), a religion.  He came to Australia, though, on a student visa in March 2009.

3. The record seems to suggest that the Applicant wanted a graduate visa after the initial student visa ran out and that this was not granted by the Department.  It seems, then, that BVU15 went to this Court to seek a review of that decision and when this Court refused to intervene, BVU15 went to the Federal Court.  That Court dismissed the appeal from the decision of this Court.  In June 2014, after all of those avenues had been exhausted, the Applicant made this claim for a protection visa.

4. Once he made that claim, he was then interviewed by the delegate in January 2015.  That interview was recorded.  The Applicant had also provided to the delegate a copy of his passport and a two-page undated statement. 

5. The claims that he made were described by the Tribunal as being vague, implausible and, in parts, inconsistent.  But the Tribunal described the gist of the Applicant’s claims as being that he would be harmed by opponents of DSS if he returns to India because of his following the DSS. He claimed that his family in India had been previously accused of converting Sikhs to DSS and having organised prayer meetings at their house and this would mean that he would be harmed. And he claimed that members of the Sikh Youth Federation (“SYF”) had listed the Applicant’s family because of their DSS activity.

6. The delegate did not consider that the Applicant’s claims satisfied either the Convention criteria or the complementary protection criteria and then refused to issue a protection visa.  The Applicant took his cause to the Administrative Appeals Tribunal.  There was no additional material provided to the Tribunal.  On 17 July 2015 the AAT wrote to the applicant, saying that:

   “…

   I am writing in relation to the application for a review made by you in respect of a decision to refuse to grant a Protection visa.

   We have considered the material before us but we are unable to make a favourable decision on this information alone. 

   You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case.  We have arranged a hearing for:…   ”

7. The hearing was arranged for 10.00am on 14 August 2015 and he was further told that:

   “If you are not able to attend the hearing you should advise us as soon as possible. Please note we will only change this date if satisfied you have a very good reason for being granted an adjournment.  If we do not advise that an adjournment has been granted, you must assume that the hearing will go ahead.  If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.”

8. There is also, in the material relied upon by the Minister, an affidavit filed on 7 June 2016 from a lawyer from Clayton Utz that annexes material that was not in the green book.  This material consisted of case notes detailing that an SMS hearing reminder was sent to the Applicant on 6 August at 11.00 am. The notes also disclose that an SMS hearing reminder was sent to the Applicant again on 13 August 2015 at 11.00 am, which is the day before the hearing and a week after the last one.

9. The applicant, however, did not appear. The Tribunal went ahead and heard the matter and went through its obligations under the Act and, quite properly, decided to proceed with the hearing.

10. The Tribunal informed itself of the proper law and then considered the claims and evidence.  The Tribunal did note that it was unable to seek clarification or additional detail regarding the claims and only had the material in the departmental file before it from which to make a determination. 

11. It does seem that all the information that the Tribunal had did come from the Applicant himself.  The Tribunal noted in paragraph 17 that:

    “17. Had the applicant attended the hearing, the Tribunal would have sought further information about his following of DSS and his level of involvement in DSS. The Tribunal would have sought more detailed information about the applicant’s claims of past harm suffered by himself and family members. The Tribunal would have enquired why certain claims made during the protection interview were not raised in his written statement.  The Tribunal would have sought further information about the claimed threats made to the family by members of the SYF...” 

    The Tribunal said that they:-

    “… Would have sought information as to whether the applicant’s parents, who are said to be DSS members, were ever physically harmed. The Tribunal would have raised its concern as to the vagueness, implausibility and inconsistency of the applicant’s claims and that they caused the Tribunal to query the genuineness of his claims. 

    18. The Tribunal would have asked the applicant for an explanation why he did not apply for a protection visa until June 2014, more than 5 years after he first arrived in Australia. The Tribunal would have put to the applicant his delay in making the protection visa application caused it to query the genuineness of his claims.

    19. After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims individually and cumulatively. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for a Refugee Convention reason because of his religion as a follower of DSS…”

12. The Tribunal then considered the complementary protection criterion as well and said that they were not satisfied on the evidence before it that 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 the Applicant will suffer significant harm.  So therefore they concluded that the Applicant did not satisfy the criteria set out. 

13. The Applicant in his application before me sets out as his first ground  of review:

    “1. The Second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

    Particular:

    The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not comply with the requirement set out in section 424AA of the Act.

14. What is clear is that the Tribunal, in writing to the Applicant as it did, obviously was putting the Applicant on notice that he needed to give the Tribunal more information and to explain himself a lot better than what was already in the material. 

15. However, as far as the necessity to act pursuant to s.424A, I am of the view that s.424A does not apply here. The fact is that the Tribunal did not look at any information other than the information that the applicant had given to the Tribunal in the first place.

16. I have had regard to the decision of SZBYR v the Minister for Immigration and Citizenship [2007] HCA 26, and especially paragraph 18, as to the real meaning of “information”. It seems to me that there was no obligation on the Tribunal to do anything. There was not even an obligation on the Tribunal to send a letter in the form that it had. However, having sent that letter, the Tribunal has gone well and truly beyond what was needed to ensure that the Applicant was treated fairly according to the legislation.

17. I see it that there really has not been any need to give the Applicant, in fact, any other information at all.  In effect, what the Applicant is contending is that the Tribunal should have, as it were, already looked at the matter, given its preliminary decision and more or less sent that out to the Applicant and asked him to comment on that.

18. Such action is not what is required by s.424A. It is that if there is material that is on the record, that doesn’t come from the Applicant, which would, in and of itself, without further explanation, be such that it would cause the Tribunal to affirm the decision not to grant a visa, then that information needs to be put to the applicant. There is nothing that remotely satisfies those criteria of “form of information”; so for those reasons, ground one of the application fails.

19. Ground two was that the Tribunal’s decision “was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claim.  The Tribunal did not consider the applicant, who had been under immense and intimidating pressure from SYF. 

20. Such a ground is, to my mind, an impermissible merits review application.  What this ground is asking is for the Court to put itself in the shoes of the Tribunal and to come up with a different conclusion.  That is not what the Court is to do.  The fact is that the Tribunal did take into consideration these matters when looking at the claims of the applicant.

21. With regard to ground two, the applicant made his application.  He did not turn up at the hearing.  There is no evidence to show that any pressure from the SYF has, in any way, affected the quality or, in any material effect, what has been said by the Applicant in his applications.  Therefore, that ground also fails.

22. The Minister has, quite properly also, taken me to the provisions that allowed for the Tribunal to look at this matter in the absence of the applicant.  Even though this aspect was not a ground upon which the applicant sought review, for the reasons that the Minister did point out to me, I am of the view that there was nothing improper in what the Tribunal did.

23. So all in all, having a look at all aspects of this matter, I cannot find that there has been any jurisdictional error.  I therefore dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 1 July 2017