BYI19 v Minister for Immigration

[2020] FCCA 547

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYI19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 547

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth), pt.7AA, ss.473GB, 473BA(1)

Cases cited:

BVD17 v the Minister for Immigration & Border Protection [2019] HCA 34

Applicant: BYI19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 449 of 2019

Judgment of: Judge Vasta

Hearing date: 4 February 2020

Date of Last Submission: 4 February 2020

Delivered at: Brisbane

Delivered on: 4 February 2020

REPRESENTATION

Applicant in person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the First Respondent’s title be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the Applicant’s oral application for an adjournment of these proceedings is refused.

3. That the Application filed 13 May 2019 is dismissed.

4. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 449 of 2019

BYI19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 9 April 2019 the Immigration Assessment Authority (“the IAA”) affirmed a decision of the Delegate of the Minister not to grant the Applicant, BYI19, a Protection Visa.  On 13 May 2019, the Applicant filed an application in this Court, asking this Court to review that decision. 

2. The background to this matter is as follows.  The Applicant claims that he is a citizen of India.  He said that he belongs to the Sikh religion and he joined the Indian National Lokdal Party (“the NLP”) in Haryana in 2012.  He said that he started a relationship with a Hindu girl whom I will call HD.  He said that HD’s father was a member of the ruling Bharatiya Janata Party (“the BJP”), which was in opposition to the NLP.  He said that, due to both families belonging to two different parties and religions, there was a big conflict. 

3. He said that when HD’s parents found out about the relationship, they became furious with both he and his family and made threats to kill them.  He said that HD’s family members were threatening him and his family with harm and that those members had gone to the house a few times looking to hurt them. 

4. The Applicant said that he resisted joining either the BJP or another political party, the Rashtriya Swayamsevak Sangh party (“the RSS”), and he said that that lead to him being beaten a number of times by workers of those two parties as well as family members of HD.

5. He claimed that in December 2012, he reported these beatings to the police, but he said the police could not file a complaint against workers of those parties or provide protection because those parties were the ruling parties in power.  The Applicant said that he and his family were in fear of their lives if they remained in India because those parties have control of the local authorities, and are very influential in India, and the Applicant would be found wherever he goes and would not be safe.

6. After his interview, the Applicant made submissions that there was a data breach and because of the data breach the Indian Government, and therefore the ruling political parties, know that the Applicant attempted to seek refuge in Australia.  He claimed they would have knowledge of his ground of seeking protection and that this would bring disrepute and dishonour to the country.  This would result in him being harmed or killed if he returned to India. 

7. The IAA looked at all of these claims.  The claim as to political affiliation was analysed by the IAA and they noted inconsistencies.  In the Applicant’s written statement he said that he and his father joined the NLP in 2012, but in his interview the Applicant said that he was not a member of the party, but he helped his father since he left school, which the IAA calculated as being 2008. 

8. When asked how long his father had been a member of the party, the Applicant had difficulty recalling.  In the interview, the Applicant admitted that he had never voted which the IAA noted as being odd, given that he claims, in his written statement, to have joined the party.

9. The Applicant blamed these inconsistencies on a poor memory.  However, the IAA did not accept that a poor memory could account for such a fundamental difference in the accounts of joining and being a member of the party.  The IAA also noted that there was no medical evidence that the Applicant had such a poor memory.  Therefore, it was more probable that the reason for the poor and inconsistent accounts was because the Applicant was not recounting an experience that he had actually lived. 

10. The IAA looked at the claims of assault.  They noted that at interview the Applicant said he was attacked at home in May, and three months later he was attacked on the way home from the temple. But in the written statement, the Applicant said that threats were made at the house and that he was beaten by workers of the party and HD’s family members, but did not mention an assault on the way back from the temple.

11. The IAA found that the account of the claimed assaults was vague, lacked details and was not free flowing.  The IAA noted that the Applicant told his tale in a hesitant and piecemeal way, and when asked to elaborate, would only give one word or short responses.  The IAA analysed the inconsistencies in those claims.  The IAA came to a conclusion that the Applicant was not recounting a lived experience but was making it up as he went. 

12. The IAA then looked at the relationship with HD.  The IAA considered that the Applicant’s account of this relationship lacked details and was inconsistent.  In the statement, the Applicant claimed the relationship with HD commenced in 2012 but, in his interview, he claimed that it commenced in 2011 and progressed to “boyfriend-girlfriend” four or five months later, and lasted one and a half to two years.  In the interview, the Applicant claimed that he reduced the number of times he saw HD after his beating in May 2012, and later he claimed that he stopped the relationship in May 2012.  The IAA found it difficult to believe that the Applicant would not remember such key markers, given that this was the crux of his protection claim.

13. The IAA said that the account of how he found out about HD’s father’s political connections also lacked credibility.  At paragraph 32, the IAA said:

    I do not accept the applicant was in a relationship with a girl whose father had political connections.  I do not accept the applicant was in a relationship with a girl whose family disapproved or threatened or harmed him or his family.  I do not accept that workers from the RSS or BJP or anyone threatened or harmed the applicant or his family.

14. The IAA said that they considered that the Applicant had fabricated his claims about his own political involvement. 

15. The IAA then looked at country information about the political landscape in India.  Whilst the material showed that the NLP was the major opposition party in Haryana in the 2014 election, there was no information that members of that party were targeted for violence.  The DFAT information was that India had a diverse political landscape and elections tended to be peaceful, broadly free and fair, and reflecting the will of the electorate.

16. The IAA did not accept the Applicant was a member of the NLP and did not accept that the Applicant has, or would have, an imputed political opinion, or would face any harm to any support that his father had given to the NLP.  The IAA did not accept the Applicant or his family was threatened or assaulted by anyone and that these claims were fabricated.

17. The IAA accepted the Applicant was a Sikh.  The Applicant claimed Sikhs were discriminated against, particularly as a result of the 1984 riots.  The IAA looked at all of the country information as to what the situation was involving the different religious groups.  The country information was that there was no material that reported that Sikhs were ill-treated on the basis of their religion, or for any reason.

18. At paragraph 41, the IAA said this:

    Further, the applicant did not claim he had any difficulty in practicing his religion and his father was a priest at the temple.  When asked if he had been harmed due to his religion, the applicant confirmed he had not been harmed, but that Sikhs have not received justice for what was done to them in 1984…

    Further, I note the Applicant attended high school until grade 10, thereafter did carpentry work and he did not claim to have faced discrimination in the past.

    On the basis of his personal circumstances and country information, I do not accept the Applicant faces any harm upon return on the basis of his religion.

19. The IAA then turned to the claim of harm because of the data breach.  Whilst the data breach may have indicated that the Applicant was making a claim for asylum, the data breach did not disclose those claims.  The Applicant claimed that the Government, if they had accessed that data breach, may be aware that the Applicant had sought asylum.

20. What I will do is, I will read from paragraph 44:

    …In any event, the Indian authorities will be aware he was a failed asylum seeker upon return by virtue of his return circumstances on a temporary travel document travelling from Australia.  However, they will not be aware of his claim reasons for seeking asylum.

21. The IAA did not accept the Applicant faces a real chance of any harm on the basis of being a failed asylum seeker, or subject of the immigration data breach.  Therefore, the IAA concluded the Applicant did not meet the criteria for refugee protection.

22. The IAA then looked at the complementary protection criteria and found that there were not substantial grounds for believing that there was a real risk the Applicant would suffer significant harm if returned to India.  The IAA then affirmed the decision. 

23. The originating Application had three grounds.  They are that:

    1. The second respondent failed to provide natural justice to the Applicant which is an error of law;

    2. The Second Respondent failed to afford Procedural Fairness to the Applicant as the Second Respondent failed to provide additional extension of time to the Applicant;  and

    3. The Second Respondent failed to afford Procedural Fairness to the Applicant as the Second Respondent failed to take relevant information into consideration.

24. The Applicant, having filed that application on 13 May 2019, was contacted by the Minister before the first Court date, which was to be on 17 June 2019.  The Minister and the Applicant agreed to a set of consent orders.  Registrar Belcher set the matter down for hearing before me today.

25. The Applicant has appeared before me unrepresented but assisted by an interpreter.  He told me that he had been trying to get a lawyer, and he could not get a free lawyer, and he wanted me to “give him more time so that he could get a lawyer to appear”.  I declined to adjourn the matter. 

26. The Applicant filed his application nearly nine months ago, and this hearing date had been set over eight months ago.  The Applicant could show me no evidence of any attempts he had made to procure the services of a lawyer.  I asked him to give me the name of one lawyer that he had approached to represent him, and he could not do so. 

27. The Minister opposed the application for adjournment, though Mr Kyranis did disclose to me that the Applicant had shown him an application for legal aid form that he had filled out while he was here in the Court building.  The Applicant could not explain why it was that he had no material to give me to show what efforts he had made to procure the services of a lawyer. 

28. The Applicant also told me that he had done everything himself up to that point.  I do not accept that this is so.  When I read out to the Applicant the grounds of his application, it was obvious to me that he had no idea what those grounds actually meant.

29. I have to balance the interests of justice between the Applicant and the community as a whole.  The work of this Court must be dealt with as expeditiously as possible.  The Applicant has had this matter in train before this Court for nine months and has known of this date for nearly eight months.  There was no material before me to indicate what the Applicant had done to prosecute his application before this Court in those eight months. 

30. The Minister had complied with all of the directions made by the Registrar and was ready to finalise the matter here before me today.  In all the circumstances, I am of the view that it was in the interests of justice to proceed today, and I refused the adjournment. 

31. With regards to the grounds in the application, the first ground has no merit. There has been no identification of what the Applicant says is the natural justice that the IAA failed to provide to him. The requirements of natural justice are codified in Part 7AA of the Migration Act 1958 (“the Act”). On examination of the record, the Minister was unable to assist as to how there was any breach of those provisions. The Minister quite fairly noted that there was a certificate under s.473GB of the Act, and that certificate, on its face, was valid. The Minister noted that in the recent authority of BVD17 v the Minister for Immigration & Border Protection [2019] HCA 34, at paragraph 35, the High Court had ruled that ss.473BA(1) of the Act precluded a procedural fairness obligation on the part of the IAA to disclose to an Applicant in a review under Part 7AA the fact of notification under s.473GB of the Act.

32. Apart from that matter, there was nothing else that could be raised to suggest that there had been a failure to provide natural justice. 

33. With regard to the second ground, that is an allegation that there was a failure to afford procedural fairness by failing to provide the Applicant with an extension of time.  However, there does not seem to be any request by him for any extension of time that can be seen either in the reasons of the IAA or any other part of the Court Book.  The Applicant before me today has not raised any ground or made any submissions with regard to this ground.  Accordingly, ground 2 fails as well. 

34. The ground 3 argues that the IAA failed to take into account relevant information.  The Applicant has not told me what relevant information was not taken into account.  The record indicates that the IAA took into account all of the matters that were before it and made a decision accordingly.  I find no merit in ground 3.

35. Before me today, the Applicant verbally submitted that the IAA did not believe his claim.  He said he did not know what else he could have given the IAA so that they would believe him, and he claimed that the IAA should have read the case properly. 

36. In going through the IAA’s reasoning, as I have, it is clear that the IAA have looked at all of the matters.  They have read the whole of the material properly, and they have come to conclusions that were open to them on the evidence.  I cannot find that there has been any jurisdictional error. 

37. I dismiss the application with costs in the sum of $5,000.

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

Date: 16 March 2020