BYN15 v Minister for Immigration
[2017] FCCA 395
•6 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYN15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 395 |
| Catchwords: MIGRATION – Review of a decision by the Administrative Appeals Tribunal – refusal to grant a protection (Class XA) visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 426A |
| Cases cited: SZOZO v MIAC [2011] FCA 944 |
| Applicant: | BYN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2185 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 8 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 6 March 2017 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Ms Ness |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2185 of 2015
| BYN15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In an application filed 23 September 2015, the Applicant sought judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 7 September 2015, which affirmed a decision of the First Respondent, by his delegate, not to grant the Applicant a Protection (Class XA ) visa.
The grounds of application are as follows:-
“18. I was born in the state of Punjab, India, and left his [sic] country of nationality to come to Australia as a student on a sub-class 572 visa.
19. My [visa] was cancelled due to a breach of condition 8105 as the applicant was found to have worked in excess of his permitted hours.
20. On 16 September 2014, [I] lodged a protection visa application as subject of this review. Due to stress I was unable to go to AAT. The visa was refused on 28 January 2015 and review has been sought with the Administrative Appeals Tribunal, Migration Division.
21. I believe Hindus are fighting with minority groups and no one will be spared. Being part of the minority, I will be targeted by the Hindus.
22. Since the Hindu Prime Minister was elected, people are scared, and young Hindi terrorist groups are forming, causing issues for minority groups. He states these groups are Shiv Sena Bajrang Dal and many more.
23. The Government will not protect him because they are responsible for the organized crime.
24. DIBP still refused my visa application on the basis that [it] does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal states that [it] is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
25. Application to the AAT was made and application was refused on the same grounds applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in section 36(2).
26. I would like make a further application to the Federal Circuit Court to seek favourable outcome on this visa application so that I could stay away from the trouble in India.
27. I believe [the] Federal Circuit Court could make a favourable decision on this visa application. I would like to bring into [sic] Federal Circuit Court attention that I am a genuine applicant to seek protection in this country. I have made this application to genuinely seek refugee status in Australia.
28. I have decided to make an application to the Federal Circuit Court to seek further more favourable outcome on this visa application. I believe in Australian Fair Judiciary system and [I am] certain that I will be able to get a positive outcome in this visa application.
On 2 March 2016, Registrar Ryan made orders by consent which included that:-
(3) On or before 42 days prior to the final hearing, the Applicant shall file and serve:
a) an amended application, if any;
b) a supplementary Court Book, if any; and
c) written submissions.
No amended application has been filed and served, and nor has the Applicant filed and served any written submissions.
The orders of 2 March 2016 also provided that the First Respondent file and serve written submissions. The First Respondent has complied with that order, relying on written submissions filed by him on 25 January 2017.
There is before the Court the evidence as contained in the court book filed by the First Respondent on 19 May 2015.
History
The Applicant was born in the State of Punjab, India, and left his country of nationality to come to Australia as a student on a subclass 572 visa. The Applicant’s date of arrival in Australia was 15 February 2009, and the Applicant has not departed Australia since that time.
A further two student visas were granted to the Applicant, with the final visa being cancelled on 6 July 2012. The Applicant was found to have breached condition 8105, as he was found to have worked in excess of his permitted hours. The then Migration Review Tribunal found there was no jurisdiction to review the cancellation on 31 May 2013. The Applicant’s Bridging Visa ceased on 28 June 2013. The Applicant was an unlawful non-citizen from 28 June 2013 until he lodged his protection visa application on 16 September 2014.
Claims
The Applicant claimed in his protection visa application that he feared harm from Hindus due to his Sikh religion. He stated he had never experienced harm in India in the past, and his fear of return was based on his view that:-
“Hindus are fighting with minority groups and no one will be spared.”
The Applicant claimed that since the current Hindu Prime Minister had been elected, people were scared, and young Hindu terrorist groups were forming, causing issues for minority groups. He claimed people would face kidnapping, torture and abuse. He claimed he and his family were under threat and his family and friends already faced these problems. The Applicant stated the Government would not protect him because they were responsible for the organised crime.
The Department and Tribunal
On 13 October 2014, the Applicant was sent a letter inviting him to contact the Department of Immigration and Border Protection (‘the Department’) to schedule an interview in relation to his application for a protection visa. The Applicant did not contact the Department.
By a decision dated 28 January 2015 sent to the Applicant by registered post, the Minister by his delegate refused to grant the visa.
On 6 February 2015, the Applicant applied to the Tribunal for review of the delegate’s decision, attaching a copy of that decision to his application. By letter dated 9 February 2015 sent to the Applicant’s representative, the Tribunal acknowledged the application.
By letter dated 7 August 2015, sent to the Applicant’s representative by email, the Tribunal invited the Applicant to appear before it to give evidence and present arguments at a hearing scheduled on 31 August 2015 at 12.30 pm. The invitation:-
a)noted the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone; and
b)noted that the Tribunal would only change the hearing date if satisfied the Applicant had “a very good reason” and explained that if the Applicant did not attend the scheduled hearing, the Tribunal “may make a decision on the review without taking any further action to allow or enable him to appear before it or may dismiss the application for review without any further consideration of the Applicant”.
The Applicant acknowledged receipt of the hearing invitation, confirming his attendance and the need for an interpreter. The Applicant appointed a migration agent.
By email dated 12 August 2015, the Applicant’s migration agent informed the Tribunal of a change to the migration agent’s office address.
The Applicant did not otherwise contact the Tribunal, and did not appear before the Tribunal to elaborate upon his claims. He did not provide any submissions.
On 7 September 2015, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa. In its decision, the Tribunal said in paragraph 5 of the Statement of Decision and Reasons (‘the Decision Record’):-
“The Tribunal has decided pursuant to s.426A of the Act to proceed to make a decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal made this decision on the basis that the applicant has not explained his non-attendance, nor has he provided a medical certificate, and he has not engaged with the review process or provided the Tribunal with any submissions.”
The Tribunal assessed the Applicant’s claims against India as his country of nationality for the purposes of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (‘the Convention’) and as his returning country for the purposes of s.36(2)(aa).
The Tribunal had before it country information from the Department of Foreign Affairs and Trade dated 15 July 2015. The Tribunal accepted, on the basis of that country information, that some discrimination exists for Sikhs in India. However, the Tribunal did not accept the Applicant’s claims that Hindus were fighting with minority groups and that no one would be spared.
The Tribunal considered the other of the Applicant’s claims to be vague and lacking in detail and noted the Applicant otherwise provided no relevant information. As to the Applicant’s claim that the Government would not protect him because they were responsible for organised crime the Tribunal said relevantly at paragraph 42 of the Decision Record:
“...the Tribunal has relied on the country information from the Department of Foreign Affairs and Trade, July 2015. India is a democratic country with an established police force and judicial system. Its constitution protects the right of individuals to form associations and unions. The applicant has provided no detail in his claims or experience to suggest he would not be protected.”
The Tribunal considered the Applicant’s current migration history; the claims made in his visa application and the lack of substantive material and evidence to support his claims; and found the Applicant did not face a real chance of persecution for any reason, Convention or non-Convention related. Further, the Tribunal was not satisfied there were substantial grounds for accepting that as a necessary and foreseeable consequence of the Applicant being removed from Australia to India there would be any real risk of him suffering significant harm now or in the reasonably foreseeable future.
In affirming the decision not to grant the Applicant a protection visa, the Tribunal was not satisfied that the Applicant was a person to whom Australia had protection obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).
Consideration
This application must fail.
The Tribunal at the commencement of its Statement of Decision and Reasons accurately summarised the relevant law and correctly applied that legal framework in the making of its decision.
The Tribunal’s decision was made on the basis that there was a lack of substantive material and evidence to support the Applicant’s claims before the Tribunal. Such a finding was one which a reasonable decision-maker would reach, and the findings of the Tribunal do not disclose any error.
The Tribunal complied with its obligations under Division 4 of Part 7 of the Act which is an exhaustive statement of the requirements of the natural justice hearing ruling relating to the matters it deals with.
In particular, s.426A of the Act confers a discretion upon the Tribunal to exercise its statutory powers in one of three ways, assuming the conditions in 426A(1)(a) and (b) are first met. That section is as follows:
“Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so--reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
(b) confirm the decision to dismiss the application, by written statement under section 430.
Note 1: Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E) If the applicant fails to apply for reinstatement within the 14 - day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.”
The preconditions to the exercise of the above discretion were satisfied in the circumstances of this case and the Tribunal was at liberty to proceed in the manner in which it did.
As observed by Reeves J in SZOZO v MIAC [2011] FCA 944 at 22, in respect of the Tribunal exercising its power under s.426A of the Act:
“While that power must be exercised reasonably and cannot be exercised capriciously, the election to proceed to a decision on the review in the absence of the (applicant) cannot, by itself, be treated as the expression of an unreasonable exercise of power.”
This application is without merit and shall be dismissed with costs following that event.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 6 March 2017
0
1
2