BVW19 v Minister for Immigration

[2019] FCCA 3208

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVW19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3208

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal denied the applicant procedural fairness by not providing an adequate opportunity to the applicant to explain his case – whether the Tribunal erred in applying s.424AA of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 476

Applicant: BVW19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1093 of 2019

Judgment of: Judge Street

Hearing date: 7 November 2019

Date of Last Submission: 7 November 2019

Delivered at: Sydney

Delivered on: 7 November 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Wong
Mills Oakley

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

DATE OF ORDER: 7 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1093 of 2019

BVW19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 April 2019 affirming the decision of a delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of India and his claims were assessed against that country. On 8 March 2012, the applicant first arrived in Australia on a TX771 visa. That visa was granted on 21 February 2012 and was valid until 11 March 2012. On 20 July 2012, the applicant was granted a UC456 visa, which expired on 20 October 2012. The applicant departed Australia on 3 November 2012 on a ZM988 visa. The applicant was granted a subsequent ZM988 visa offshore on 30 January 2013, which was effective until 18 April 2013. On 11 February 2013, the applicant arrived in Australia a second time on a TX771 visa using his Republic of India passport. This visa was granted on 31 January 2013 and valid until 14 February 2013.

3. The applicant then became an unlawful non-citizen of Australia for more than two years before lodging an application for a Protection visa on 19 May 2015.

4. The applicant claimed to fear harm by reason of allegedly being stateless and that his passport, which he had used to enter Australia, was allegedly fraudulent. The applicant also alleged that he feared harm from the Q Branch of the police force in Tamil Nadu and being imputed with Liberation Tigers of Tamil Elam (“LTTE”) affiliations, even though he had not lived in Sri Lanka.

5. On 16 May 2016, a delegate found that the applicant had fabricated his claims and had arrived in Australia on a genuine passport and, thus, did not meet the criteria for grant of a Protection visa. On 20 May 2016, the applicant applied for review of the delegate’s decision.

6. By letter dated 12 September 2018, the applicant was invited by the Tribunal to attend a hearing on 20 November 2018. That letter informed the applicant that the Tribunal was unable to make a favourable decision on the information before the Tribunal. On 20 November, the applicant attended the hearing to give evidence and present arguments. The applicant was provided the opportunity of a further hearing as a result of a letter sent on 30 November 2018 by the Tribunal inviting the applicant to attend a resumed hearing on 17 December 2018. That hearing was, in fact, held on 16 January 2019 when the applicant again appeared to give evidence and present arguments.

7. The 16 January 2019 hearing record identifies that the applicant was provided a further opportunity, up until 30 January 2019, to provide any further information. By letter dated 29 January 2019, the Tribunal extended the time for the applicant to provide post-hearing documents and/or information. By email on 12 February 2019, the applicant provided further information to the Tribunal which was referred to in the Tribunal’s reasons.

8. The Tribunal in its reasons identified the background to the application for review. The Tribunal also identified the relevant law. The Tribunal also summarised the applicant’s migration history and the applicant’s claims.

9. The Tribunal referred to the conduct of the hearing and what was put to the applicant in relation to the Tribunal’s concerns in respect of the applicant’s claims and evidence. In doing so, the Tribunal referred to the applicant confirming that he told the delegate that his parents had registered with the United Nations High Commissioner for Refugees (“UNHCR”) and that he told the delegate that he had tried to get the relevant documents but, because his mother is not there, he cannot.

10. The Tribunal records putting to the applicant that, in April 2016, he wrote to the Department of Immigration and Border Protection (“Department”) and said that his mother has been searching for his sister in different refugee camps and that he wanted an additional two months to submit the documents. The Tribunal also records putting to the applicant that that letter to the Department suggested that his mother and sister were in India. The applicant contended that this mother and sister went back to Sri Lanka and that afterwards he is not sure about their whereabouts and could not contact them.

11. The Tribunal noted to the applicant that it was difficult to understand why the Q Branch would have any interest in him, given that he had never lived in Sri Lanka, never been involved with the LTTE and had claimed that he had not seen his father since he was ten years of age.

12. The Tribunal raised with the applicant inconsistencies in relation to his birth certificate and having an Indian passport. The Tribunal also referred to the applicant’s claims of a ransom from the Q Branch. The Tribunal raised with the applicant that it was concerned as to his evidence changing over time.

13. The Tribunal referred to, pursuant to s.424AA of the Act, inviting the applicant to comment on the fact that, in his application for a TX771 visa, he identified himself as being an Indian citizen. The Tribunal identified that, at the end of the hearing, the Tribunal gave the applicant a period of 14 days to respond in writing and that the applicant undertook to provide the information within that timeframe.

14. The Court has read an affidavit which identifies that the Tribunal complied with the requirements of s.424AA of the Act insofar as providing the applicant an opportunity to respond in writing to the issues raised under s.424AA of the Act. The Tribunal noted that the post-hearing material provided did not respond to what was put to the applicant under s.424AA of the Act.

15. The Tribunal then turned to an assessment of the applicant’s claims and evidence.

16. The Tribunal found that the applicant is an Indian national and is not stateless as claimed.

17. The Tribunal formed the view that the applicant was not a credible witness. The Tribunal summarised its concerns in relation to the adverse credibility findings in eight subparagraphs, which identified material and significant issues to support the adverse credibility findings that the Tribunal made. The Tribunal then expanded on each of those adverse credibility findings in detail.

18. The Tribunal found that the applicant manufactured his claims for protection in the hope of securing a favourable migration outcome.

19. The Tribunal did not accept that the applicant obtained his passport illegally through fraudulent means. The Tribunal found that it is a genuine document. The Tribunal rejected the applicant’s claims that he would face any type of harm because he is stateless. The Tribunal found that it was not credible that the applicant would be arrested or otherwise attract the adverse attention of Indian authorities, including the Q Branch, because he is in possession of a fraudulently obtained passport.

20. The Tribunal did not accept that the applicant’s parents were registered as refugees by the UNHCR or the Indian authorities. The Tribunal did not accept the applicant’s evidence that his parents were Sri Lankan refugees or that his father is a Sri Lankan refugee with links to the LTTE. The Tribunal also did not accept the applicant’s claims in relation to the disappearance of his father.

21. The Tribunal did not accept that the applicant was or is of interest to the Indian authorities for any reason. The Tribunal did not accept that there was ever any adverse interest to Q Branch or, more generally, to the authorities in India. The Tribunal rejected the applicant’s claims that he was threatened and subject to demands for money.

22. The Tribunal found that there is no real chance that the applicant would face serious harm or significant harm from the state authorities if he returns to India now or in the reasonably foreseeable future. The Tribunal did not accept that a false case would be brought against him and that he would not be able to obtain a job or that he will be detained.

23. The Tribunal did not accept that there is a real chance the applicant will attract the adverse attention of the Indian authorities for any of the reasons claimed. The Tribunal was not satisfied that the applicant has a profile which would give rise to a real chance that he would face serious harm from the Indian authorities, including the Q Branch, or anyone else if he returns to India now or in the reasonably foreseeable future. The Tribunal found that the applicant does not satisfy the criteria under s.36(2)(a) of the Act.

24. The Tribunal was not satisfied there was 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. The Tribunal found that the applicant did not meet the criteria in s.36(2)(aa) of the Act.

25. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 6 May 2019. On 23 May 2019, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant asserted that the Tribunal did not provide him time to produce documents. The applicant’s submission is entirely inconsistent with the Court Book and the record before the Court.

4. The applicant contended that he needed time to obtain documents in relation to the UNHCR. It is apparent that that was an issue raised by the applicant in the hearing, as referred to above, and that it had been raised before the delegate. Nothing said by the applicant from the bar table identified any basis to establish any jurisdictional error.

5. The applicant’s assertion that he wanted an opportunity to put on material is entirely inconsistent with the records before the Court and the opportunities that were given to him by the Tribunal. Those opportunities include providing the applicant a second hearing and a further fourteen days after the final hearing, as well as the notification to the applicant of the delegate’s adverse decision on the grounds the applicant was not stateless and the opportunity the applicant had as a result of receipt of the first invitation letter, which told him the Tribunal could not make a favourable decision on the information before it.

6. The applicant also sought to characterise what he was asked by the Tribunal. There was no evidence to support anything said by the applicant. The Court does not accept the applicant’s suggestions as to what had occurred before the Tribunal. There is nothing before the Court to suggest that the applicant had other than a real, meaningful hearing before the Tribunal. Further, the Tribunal’s detailed reasons reflect an active intellectual engagement with the applicant’s claims and submissions.

7. Nothing said by the applicant from the bar table identifies any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal erred in law by not providing adequate opportunity to the applicant to explain his case. This lack of procedural fairness resulted in miscarriage of justice.

   Particulars

   The applicant intended to handover some documents regarding his claim including the documents relation his father birth certificate, ID documents of his father etc. The request for some additional time to produce documents was refused by the Tribunal. The applicant was self represented and the failure of the provide reasonable opportunity to adduce the documentary evidence was denied by the Tribunal. This act of Tribunal to dispose the matter in a rush on the same day vitiated procedural fairness and resulted in miscarriage of justice.

   2. The Tribunal erred in law by failing to advice the applicant that he can seek additional time to furnish the required information to the Tribunal. This violated Sec 424AA of the Migration Act.

   Particulars

   The Tribunal expressed its concern about the absence of documents relating to his father as required under Sec 424AA but failed to inform the applicant that he can seek additional time to furnish the same. When the applicant sue motto asked for additional time to furnish the documents relating to his father this was denied and this violated the requirements of S424AA of the Migration Act and principles of natural justice.

Ground 1

1. Ground 1 is, in substance, a repetition of the applicant’s assertions of not having an opportunity to provide information. That proposition is entirely unsupported by the record, including the opportunity given to the applicant following a second hearing to provide further documentation up until 30 January 2019. Further, it is apparent that the applicant relied on some further material in respect of that opportunity.

2. There is no basis to find that the Tribunal failed to comply with the requirements of procedural fairness in the conduct of the hearing. There is no substance in the contention that the applicant was not given an opportunity to explain his case. There is no aspect of the applicant’s case which has been identified where the Tribunal misunderstood. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant alleges non-compliance with s.424AA of the Act. Extracts from the transcript have been tendered in an affidavit by Mr Patterson affirmed 23 October 2019 making patent that the Tribunal complied with the requirements of s.424AA of the Act. The applicant was provided the opportunity to respond in writing, as referred to in the Tribunal’s reasons. While the applicant provided further information following the second hearing, the applicant did not further address the issue which had been raised under s.424AA of the Act. No jurisdictional error as alleged in ground 2 is made out.

2. As the applicant has not made out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 7 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  16 January 2020