BZW17 v Minister for Immigration

[2018] FCCA 1277

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZW17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1277

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)

First Applicant: BZW17

Second Applicant: BZX17

Third Applicant: BZY17

Fourth Applicant: BZZ17

Fifth Applicant: CAA17

Sixth Applicant: CAB17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 444 of 2017

Judgment of: Judge Vasta

Hearing date: 14 May 2018

Date of Last Submission: 14 May 2018

Delivered at: Brisbane

Delivered on: 14 May 2018

REPRESENTATION

The First Applicant appearing with the assistance of an Interpreter

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed on 10 May 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental fixed in the sum of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 444 of 2017

BZW17

First Applicant

BZX17

Second Applicant

BZY17

Third Applicant

BZZ17

Fourth Applicant

CAA17

Fifth Applicant

CAB17

Sixth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 13 April 2017, the Administrative Appeals Tribunal affirmed a decision of the delegate of the Minister not to give the Applicant and his dependents, who are his wife and, it would seem, four children, a protection visa. 

2. The background to the matter is that the Applicant came to this country in 2009 with his family.  They did so on the basis that the Applicant was a skilled visa holder under the then “457 provisions”.  The Applicant worked for his brother who has property holdings in North Queensland and who needed the assistance of the Applicant who was a motor mechanic. 

3. After being here for quite some time and establishing himself, the Applicant sought to stay in the country permanently, and he lodged a visa application to that claim.  His sponsor was his brother. 

4. Before that application was heard, he and his brother had a falling out and his brother withdrew the sponsorship. The Applicant was unsuccessful in the application because of the withdrawal of the brother as sponsor, and, after he appealed that decision, he then made this claim for protection. 

5. There is no material from the brother on the file, but the Applicant has now made very serious claims about his brother. They range from  an allegation that the brother would systematically underpay him or not pay him at all,  to claims that he would beat the members of the family; that he would force them to work for no money; and that when the Applicant decided that he didn’t want to work, he was assaulted and hospitalised; and that the brother said that he would have the Applicant thrown out of the country, taken back to India, and when he got to India the brother would be able to kill him or have him killed. 

6. The protection that he seeks is because if he is returned to India his brother will have forces at his disposal to have him killed, and it doesn’t matter where he goes in India; the brother has ways and means of finding him. 

7. That claim is inherently incredible as it stands. 

8. However, the Administrative Appeals Tribunal (“the Tribunal”) took the claim very seriously and investigated it fully and had regard to all of the circumstances, any documentation or submissions that were made, and spoke to all of the Applicants as well as a friend of the Applicants who gave some evidence on their behalf to the Tribunal. 

9. In the end, the Tribunal concluded that they did not find that the Applicant was credible, and in finding that he was not credible did not consider that he had made out his claim. 

10. The Tribunal understood that the Applicant claimed that he feared serious harm as a result of threats from his brother and, however, that serious harm was not a well-founded fear of persecution for a convention reason, that is, because of his race, nationality, religion, political opinion or membership of a particular social group.

11. Therefore the claim was whether the Applicant met the complimentary protection criterion; that is, whether on the evidence before the Tribunal, the Tribunal could be satisfied that as a necessary and foreseeable consequence of being removed from Australia to India, is there a real risk that the Applicant would suffer significant harm. 

12. The Tribunal did consider all of the evidence and came to the conclusion that it was possible that the brother had abused the Applicant in the sense that he underpaid him and demanded that the wife and the children work for him for no wages, but that was as far as it went. 

13. The Tribunal specifically did not believe an allegation from the Applicant that the brother had held a knife to his throat or stabbed him with a knife. The Tribunal described the Applicant’s evidence as evasive in respect of that incident. 

14. The Applicant, they noted, didn’t seek any medical treatment or make any complaint to the police about these incidents.  But notwithstanding that, the Tribunal did accept that the brother occasionally physically abused the Applicant and frequently verbally abused him until the Applicant ceased working for him and speaking to him.  That time was about the end of 2012. 

15. The Tribunal noted that there had been an incident where, whilst it hasn’t been proved exactly who, but it looks as though the brother’s son, that is, the nephew of the Applicant did upload a photo of himself onto Facebook and had the words, “Allah Akbar. Get ready, Innisfail”, written underneath. 

16. There was an investigation of this matter and the Applicant did give a statement to police. But there was no evidence before the Tribunal that anything had come of this.  There was no evidence that simply because the young nephew had done this, that there was anything that would mean that the Applicant or his family were in any greater fear than anyone else in the Innisfail community. 

17. The Tribunal noted that since the Applicant’s application for permanent visas were refused by the department, any threat by the brother to have them deported no longer had any weight and would not be any reason why the Applicant wouldn’t report to police any threats of violence that his brother had made. 

18. The Applicant said that he didn’t report the threats because he was scared of what the brother might do;  however, the Applicant has stated that the reason he believes he’s safe in Australia is that the law is strong in Australia and that he is protected here. So there doesn’t seem to be anything that would have stopped any such threats being conveyed to the police. 

19. The Tribunal found that the brother had not actually harmed the Applicant or any members of the family since the end of 2012, and this is despite the fact that they live about two kilometres from each other and that the relationship had broken down completely. 

20. The son of the Applicant was still going to the same school as the brother’s son.  The cousins were at the same school and yet there was still no harm done.  Based on that, the Tribunal was not satisfied that the brother had made threats to seriously or significantly harm the Applicant and his family and certainly not since 2012. The Tribunal was not satisfied that the brother has threatened to kill or significantly harm the Applicant and the family if they returned to India. 

21. The Tribunal noted that even if it did accept that such threats had been made, the Tribunal was satisfied that, given the vast size of India and the fact that there is over one billion people in the country, the Applicant could reasonably and safely relocate to another area of India to avoid any harm that they fear either directly or indirectly from the Applicant’s brother. 

22. In coming before this court, the Applicant tells me today that he didn’t even read the decision of the Tribunal, but was not happy with it. 

23. The grounds of his application read as this: 

    “Application for judicial review.  I, Harvinder Singh, made a review application for protection visa to the Administrative Appeal Tribunal (AAT).  My application was refused by AAT on 13/4/2017.

    I believe there are compelling and compassionate grounds to grant my protection visa application and we are not satisfied with the decision of AAT. Therefore I would like to appeal to the Federal Circuit Court to consider my protection visa application.  Please refer to my statement on the next page.”

24. And that statement was simply a recitation of what he said he had done and that there had been threats and that this sentence:  “

    “I know that Australia needs more people with the same occupation to sustain the industry hence I believe that my skills and expertise would be helpful for the organisations and the regions to grow.” 

25. The Applicant filed an affidavit in which he annexed the decision of the Tribunal, but again just reiterated the merits of his claim. In the last three paragraphs of the affidavit, the Applicant said:

    “We are getting constant threats from my previous employer.  He harasses us, harms us.  He has threatened us saying that he has all the resources and power to get us killed in India.  If we go back, we will be in danger.  He is not doing anything here because the rules are strict here.  In India, he is free to do anything.  Even authorities are corrupted there.  He has already ruined our life and put us in such a stage that we can’t go back. 

    It is our humble request from all of us that it would be of great favour and relief to us to allow us to stay in Australia and build my children’s future.  We have been loyal, supportive and honest to everyone with whom we have acquainted till date. 

    There are emotional and personal attachments with local society.  I would request the officer to give favourable consideration to our application.  We endeavour to remain lawful residents in Australia.

    I am thankful to you for your kind attention to my application.”

26. None of the material in any way suggests that there has been a jurisdictional error made by the Tribunal. 

27. Here today the Applicant simply said that all the paperwork that he gave to the Administrative Appeals Tribunal wasn’t taken into consideration.  I asked him to tell me where in the judgment it would show me that the material wasn’t taken into consideration, given that the Tribunal has said that it has taken everything into consideration. 

28. The Applicant then told me then that he hadn't read the decision of the tribunal. 

29. He said that he can’t read English and that no one had ever attempted to translate it, but that some cousin of his in India had a look at it and said that it was wrong. 

30. As I’ve explained to the Applicant, this is a review and not an appeal.  There must be shown to me to be a jurisdictional error.  There must be shown to me something that demonstrates that the Tribunal has not acted within its jurisdiction. 

31. Nothing of the sort has been shown to me.  This has been an emotional attempt to have an impermissible merits review. 

32. As there has been no jurisdictional error shown to me, the only option for me is to dismiss the application with costs in the sum $5,500.00.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 18 May 2018