CCJ15 v Minister for Immigration

[2016] FCCA 2035

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCJ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2035

Catchwords:
MIGRATION – Administrative review – Protection Visa refused – application dismissed – applicant pay respondent’s costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: CCJ15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 952 of 2015

Judgment of: Judge Vasta

Hearing date: 1 August 2016

Date of Last Submission: 1 August 2016

Delivered at: Brisbane

Delivered on: 1 August 2016

REPRESENTATION

The Applicant appearing on his own behalf

Solicitor for the First Respondent: Clayton Utz

ORDERS

1. That the Amended Application filed 9 March 2016 be dismissed.

2. That the Further Amended Application filed 12 July 2016 be dismissed.

3. That the Applicant pay the First Respondent’s costs fixed in the sum of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 952 of 2015

CCJ15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 14 October 2015, CCJ15 sought a review in this Court of a decision by the Administrative Appeals Tribunal affirming a decision of the Minister not to grant CCJ15 a protection visa.  The matter came before me on 7 December 2015 where I made orders as to the conduct of the matter asking the Applicant to either file any change in application and to give me any written submissions on his matter. 

2. He has complied with those orders, however, the matters upon which he has sought review are, in effect, the same matters that were before the Tribunal.  They are, in order:

   a)incident in 2005;

   b)involvement in activities connected with Khalistan;

   c)matters involving Jaskaran;

   d)involvement of members of my wife’s family;

   e)concerning situation for Sikh;  and

   f)medical reports and reference letters.

3. To understand that, one has to have a look at a general history of the matter.  The Applicant, it seems, has come to Australia certainly before 2010.  In 2010, he claims he was the complainant when someone had smashed his windscreen.  It seems that he may well have come here on a tourist or student visa. 

4. What is clear from his submissions is that he has in the past made an application for a skilled graduate visa, a subclass 485 visa.  It seems that the Minister did not grant that visa because the Applicant did not show sufficient proficiency in English. It seems then that the then Migration Review Tribunal affirmed that decision of the Minister to refuse to grant that skilled graduate visa.

5. It seems then that what the Applicant did was make the application for a protection visa.  As has been explained during the course of this hearing, the Applicant made a written application for the visa application.  He was then interviewed by a delegate for the Minister for Immigration.  That delegate then made a determination.  In this case, the determination was that the Applicant ought be refused a visa.  The Applicant then made an application to the Administrative Appeals Tribunal and then put in a written application.

6. So from that time, there are then three, as it were, sets of information that are before the Tribunal.  The Tribunal then had a hearing where a fourth and, in this case, it may be seen, a fifth set of information was provided because there was a hearing in June and then it was adjourned until a hearing in July.

7. In this case, as well, though, because of those four or five sources of information, after the Tribunal hearing had concluded, the Tribunal asked the Applicant for further information identifying a number of areas in which the Tribunal noted that there was an inconsistency of evidence.  That request was made on 18 August 2015 and the letter appears at page 74 of the bundle.

8. What is clear in that letter is that there were a number of subheadings that were used by the Tribunal in asking for the information.  Those subheadings were

   a)Information about Claim Incident in 2005,

   b)Evidence Concerning Matters Involving Jaskaran,

   c)Evidence About Involvement of Members of the Wife’s Family in Khalistan, and

   d)Information Concerning Situation for Sikhs.

   It also contained a DFAT booklet on country information regarding India that was current as at July 2015.

9. The Applicant replied on 31 August 2015 with a letter that addressed the matters with these headings:

   a)Activity Connected with Khalistan;

   b)Incident in 2005;

   c)Matter Involving Jaskaran;

   d)Involvement of Members of My Wife’s Family

   e)Concerning Situation for Sikh; and

   f)Medical Report and Reference Letters.

10. The Tribunal then conducted what I consider to be an extremely thorough investigation of all the claims that the Applicant had made.  In a 49-page decision, which I will not do justice if I do attempt to summarise it, the Tribunal has gone through each and every one of the claims, looked at all of the evidence and come to a conclusion.  In the end, the Tribunal did not grant a visa and instead affirmed the original decision of the delegate of the Minister.

11. In making his application before this Court, in effect, the Applicant has simply reiterated what it is that he wrote to the Tribunal on the 31 August 2015.  As I said earlier, the Applicant had provided affidavits and changed his originating application after I had made the orders.  The written affidavit was simply annexing the same letter which had simply been updated and reflected that it was addressed to this Court rather than the Administrative Appeals Tribunal.  For all intents and purposes, it was the same letter.

12. The problem, as I stated to the Applicant during the course of this hearing, is that it really seems to me that what his main “gripe” is that there has been an adverse credibility finding made by the Tribunal and he simply does not accept that. 

13. As I explained to him during this hearing, the job of this Court is to review what the Administrative Appeals Tribunal has done to ascertain whether or not there has been a jurisdictional error.  This Court is not an appeal Court in the normal sense of the word.

14. The decision of the Administrative Appeals Tribunal is final.  It is only for the Courts to interfere if there has not been a proper dealing with the matter according to the legislation, or that there has been, in the course of the making of findings by the Administrative Appeals Tribunal, a jurisdictional error.

15. In this case, the Applicant has simply not been happy with the finding of the Tribunal and has wanted to agitate those points again.  Whether or not any of that has merit is really not a matter for me.  As I say, going through the decision of the Tribunal, the Tribunal member was extremely thorough and has considered all of the evidence and made a finding that was open to the Tribunal member to make.

16. The Applicant says that he fits within the definition for the convention refugee criterion and, if not, the complementary protection criterion. He says that the Tribunal did not look at this matter.  What is quite plain on the face of it is that the Tribunal started out exactly doing that.  It reiterated what the convention criterion was and then what the complementary protection criterion was.  What the Tribunal ended up doing was saying that the Applicant was not such a person as would fall into either of those criterion and the greatest reason for that is that the Tribunal did not believe what it is that he was saying.

17. In those situations, having looked at the Tribunal’s decision, I cannot see that there has been any jurisdictional error.  The findings that were made were open on the evidence.  There is nothing in any of the grounds that the Applicant has pointed to that would show any jurisdictional error.  Rather, it seems as though each of those grounds was an application for a merits review, which, as I have said, is impermissible in this jurisdiction.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:31 August 2016