BXA18 v Minister for Immigration and Anor

[2020] FCCA 1634

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXA18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1634

Catchwords:
MIGRATION – Visa – protection visa –– application for review of decision by Administrative Appeals Tribunal – no denial of procedural fairness or natural justice – no unreasonableness in drawing adverse inference from applicant’s inconsistencies.

Legislation:

Migration Act 1958 (Cth), ss.189, 476

Applicant: BXA18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MUTLICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 983 of 2018

Judgment of: Judge McNab

Hearing date: 16 June 2020

Date of Last Submission: 16 June 2020

Delivered at: Melbourne

Delivered on: 23 June 2020

REPRESENTATION

The Applicant in person

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 11 April 2018 be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $6,000.

3. The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 983 of 2018

BXA18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed 13 April 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 8 March 2018. The Tribunal’s decision affirmed a decision of a delegate (‘the delegate’) of the first respondent (‘the Minister’) refusing to grant a Protection (subclass 866) visa (‘the protection visa’). This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The matter was heard on 16 June 2020.

3. For the reasons which follow I have concluded that the application should be dismissed.

Background

1. The applicant is a citizen of India from the Punjab province who arrived in Australia on 25 October 2016 as the holder of a Subclass 572 Vocational Education and Training Sector visa (‘the vocational visa’).

2. On 14 March 2017, the applicant’s vocational visa was cancelled under s 116 of the Act. On 17 March 2017 the applicant lodged for review of the cancellation with the Tribunal.

3. On 19 September 2017, the applicant was detained under s 189(1) of the Act and detained in the Maribyrnong Immigration Detention Centre.

4. On 1 December 2017, the Tribunal affirmed the cancellation of the vocational visa.

5. On 11 December 2017, the applicant applied for the protection visa.

6. On 15 December 2017, the delegate invited the applicant to a hearing before the delegate. On 21 December 2017, the applicant attended the interview.

7. On 17 January 2018, the delegate refused to grant the visa.

8. On 23 January 2018, the applicant applied to the Tribunal for review of the delegate’s decision.

9. On 9 February 2018, the applicant was invited to a hearing before the Tribunal. On 21 February 2018, the applicant appeared before the Tribunal unrepresented.

10. On 23 February 2018, the Tribunal invited the applicant to comment on or respond to information that the Tribunal considered would be the reason, or part of the reason, for affirming the delegate’s decision.

11. On 2 March 2018 the applicant responded to the Tribunal’s letter.

12. On 9 March 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa.

13. On 11 April 2018, the applicant filed an application for judicial review of the Tribunal’s decision of 8 March 2018 in this Court.

14. On 30 April 2019, Registrar Ryan of the Federal Circuit Court ordered that the first respondent file and serve a copy of the court book on or before 15 May 2019. The first respondent filed the court book on 12 June 2019.

Grounds of review

1. The application for judicial review includes no grounds of judicial review, but refers to the affidavit filed in support.

2. By affidavit affirmed 10 April 2018, the applicant sought review on the following grounds:

   5. The respondent in making the decision did not comply with rules of natural justice and I the applicant was denied procedural fairness.

   6. The Second respondent decision included the error of the law.

   7. The Second Respondent took in account irrelevant considerations.

   8. The Second Respondent decision was unreasonable.

   9. The Second Respondent failed to took in account the relevant considerations.

   10. The decision of the respondent failed meets the refugee law when making the decision.

   11. I believe the tribunal made an error in coming to its decision due to my inability to prepare and present a proper case and therefore a meaningful opportunity to be heard by denying me procedural fairness.

   12. The Second respondent also made an error by finding that I do not engage the protections afforded at s.36 (2) (a) of the act therefore misapplying and misconstrued the s.36(2) (a) and s.36(2)(aa).

   13. The Second respondent has not considered each of the integers of my claims of the serious harm discussed with respects to my claims for refugee protection in the context of the complementary protection criterion regarding the real of significant harm at s.36(2)(aa).

   14. The Second respondents’ conclusion in making the decision is vague and is without considering the facts of my country report information.

   14. The acknowledged difficulties of preparing and presenting my case I am from a different social, ethnic and cultural background and the difficulties I have with English language. Moreover, I believe the decision maker misinterpreted their obligations to consider representations I made to mitigate my offending behaviour as non-refoulement obligations.

   (errors in original)

3. The applicant has not filed or served any written submissions.

The Tribunal’s decision

1. At [12] of its decision, the Tribunal outlined applicant’s claims for protection. In particular, that he claimed to fear harm if he returned to India on the basis of his religious beliefs, as a result of his claims to be a long-term devotee of Dera Sacha Sauda (‘DSS’) a spiritual organisation lead by a Gurmeet Ram Rahim Singh (‘Guru’). He claims that that the Guru was falsely accused of criminal conduct. He repeated those claims before the Court when he appeared by telephone with the assistance of a Punjabi interpreter. He also claims that he would have been suspected of having gone to Australia to raise money to fund riots that lead to the killing of youths in the local area.

2. The Tribunal noted that, at the hearing, the applicant submitted a report from a clinical psychologist dated 9 August 2017 and accepted the psychologist’s assessment that the applicant was suffering from an adjustment disorder and mixed anxiety and depression.

3. Paragraph [16] of the Tribunal’s decision recalls that, at the hearing, the applicant claimed that the allegations against the Guru that lead to his conviction and jailing were false and that DSS members and supporters were now being targeted by the Indian authorities and others. He claimed that as a DSS devotee and follower he would be targeted for harm if he returned to India by the Indian Authorities or other extremist groups in the Punjab who will seek revenge on him because of his role of converting people from other religions to DSS.

4. The Tribunal noted several inconsistencies in the applicant’s account as given at different stages of the visa review process, but gave the applicant the benefit of the doubt and accepted the applicant’s claims about his involvement with DSS at [21].

5. The Tribunal also accepted that it was the applicant’s intention to resume his involvement with DSS should he return to India. The Tribunal did not accept that either the applicant or his family had been threatened or targeted by reason of his involvement with DSS. At [26], the Tribunal found that the applicant’s claims that the Indian authorities were targeting or failing to protect DSS supporters was inconsistent with the independent sources before it, in particular, country information that was referred to in the decision.

6. Further, at [31], the Tribunal found that the applicant would not face a real chance of serious harm from the Indian authorities or from any other group if he were to return to his home area and resume his activities as a DSS devotee.

7. At [34]-[35] of its decision, the Tribunal rejected the applicant’s claims that he and his family had been threatened and concluded that he would not face a real chance of suffering serious injury or harm by reason of his religious belief should he return to his home area in India, either from Indian authorities or from any other group of persons. For the same reasons, the Tribunal found that the complementary protection obligations were not owed to the applicant.

Consideration

1. As to the grounds regarding procedural fairness, there is no basis apparent before the Court that the applicant was not afforded procedural fairness or natural justice in the manner in which the Tribunal dealt with his application.

2. The applicant was given the opportunity to attend a hearing before the Tribunal, and to give evidence and present arguments and he did so. Following the hearing, the Tribunal wrote to the applicant by a letter dated 23 February 2018 setting out (in detail) concerns that the applicant had given inconsistent information, and giving him an opportunity to respond. That correspondence, which is found at pages 102-105 of the Court Book, is specific and provides the applicant with a very clear statement of the matters of concern to the Tribunal. The applicant responded to that correspondence by a letter dated 2 March 2018 which is found at pages 107-109 of the Court Book. There is no basis to the applicant’s claim that he was not afforded procedural fairness.

3. Otherwise, the applicant’s claims that the second respondent took into account irrelevant considerations or failed to take into account relevant considerations are not made out when the decision is read as a whole.

4. The Tribunal:

   a)took into account the psychologist’s assessment of the applicant’s mental health conditions;

   b)gave the applicant the benefit of the doubt regarding a number of inconsistencies in his account; and

   c)accepted his account of his past and intended future involvement with DSS.

5. The rejection of the applicant’s claims that he and his family had been threatened by Indian authorities and other groups by reason of his involvement in converting people to DSS was made on a reasoned basis. And those reasons are set out in the Tribunal’s decision.

6. The Tribunal noted inconsistencies between the applicant’s evidence given before a Tribunal hearing (differently constituted) on 25 October 2017 regarding the cancelation of his student visa and the Tribunal hearing which is a subject of a review. In the latter decision, the Tribunal was not satisfied with the applicant’s explanation that he had forgotten to mention to the Tribunal that he had considered his student visa application in October 2017.

7. When the applicant was before the Tribunal (differently constituted) regarding the cancellation of his student visa in October 2017 (‘the student visa hearing’), he had not mentioned any concerns about risks he would face upon return to India. I find that it was open to the Tribunal, upon reviewing the applicant’s protection visa application lodged in December 2017, to draw an adverse inference from the applicant’s failure to mention any of these fears at the student visa hearing just 7 weeks earlier.

8. Otherwise, the Tribunal’s reasons are comprehensive and respond in detail to the claims raised by the applicant, both in his protection visa application and in his responses to the Tribunal’s invitation by the letter of 23 February 2018.

9. For these reasons there is no jurisdictional error apparent in the decision of the Tribunal.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 23 June 2020