CFS16 v Minister for Immigration

[2017] FCCA 443

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFS16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 443

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

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA

Applicant: CFS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 736 of 2016

Judgment of: Judge Vasta

Hearing date: 6 March 2017

Date of Last Submission: 6 March 2017

Delivered at: Brisbane

Delivered on: 6 March 2017

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: CLAYTON UTZ

ORDERS

1. That the Application filed 11 August 2016 be dismissed.

2. That the Applicant pay the Respondent’s costs of and incidental to these proceedings, fixed at the sum of $7,206.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 736 of 2016

CFS16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application lodged in this Court on 11 August 2016 the Applicant, CFS16, seeks this Court to review the decision of the Administrative Appeals Tribunal which, itself, affirmed an earlier decision of the delegate of the Minister not to issue CFS16 with a protection visa. 

2. The brief chronology is that the Applicant arrived in Australia on a student visa in 2009.  It seems he returned to India in March 2010, as his mother was ill at the time, and upon his arrival, his family arranged for him to marry.  He did marry his wife, on 22 April 2010, and remained in India until November of that year, when he returned to Australia.

3. He left his wife to care for his mother.  His mother passed away in June 2012, and his wife returned to live with her own mother.  In 2014, the Applicant made the application for a protection visa.  In that application, he said that he was tortured and subjected to inhuman treatment by his uncle and cousins.  He was forcefully living a miserable life and, after the death of his parents, his uncle wanted to capture his ancestral property and land. 

4. He further said that after the death of his father in 1986, the uncle wanted to acquire his land and that he was giving them resistance from capturing their land.  From his birth, there was a family dispute about the land and property given by their forefathers. 

5. What he claimed was that the uncle, in effect, had murdered the father but made it look like an accident, but the uncle wanted to capture the Applicant and behead him so that the Applicant could not give evidence against them in any Court.  He said that his mother then sent him to Australia so he could live a peaceful life.

6. He said that his mother then died of depression in 2011, because she had been tortured and that he was wounded very badly when he went back to India in 2010, to meet his mother, and he was still suffering from depression because of that threat. 

7. He was asked why he thought he would be harmed if he returned to India, and he said:

   “I have survived their attack because I came to Australia on a study visa, because of a good life in Australia.  My whole family is deceased because of ongoing property dispute and threats.  I don’t want to go back because they will definitely kill me and disappear my body, as I am the last person alive in the whole family.”

   In answer to the question as to whether the Applicant considered that Indian authorities could protect him if he returned, he said:

   “The Indian system is corrupt.  Police officer and local officials can be bribed at any time.  My uncle is very powerful.  They can bribe officials in India, who can order my killing and acquire our land.”

8. Obviously, the delegate did not find that the Applicant ought be given a protection visa, and so the Applicant went to the Tribunal, who heard the matter on 19 July 2016.  The Applicant told the Tribunal that what he had put in his application for the protection visa was false, that there wasn’t any problem with his uncle and that he was told that it would be better to make such a claim to better his chances of receiving a protection visa. 

9. Instead, he said that what had occurred was that once his mother had died, his wife made a false complaint, to police, suggesting that the Applicant and his sisters had taken her possessions and forced her to vacate the house, and then sold her possessions.

10. He had tried to get another village official to demand that his wife return to reside in his house, and that the official attended his sister’s workplace and shouted at his sister, saying that when the Applicant returned to India that he would “fix him” (the Applicant). 

11. The Applicant said that he feared that this official would make claims against him if he returned to India, which could result in him being jailed.  The wife had then taken criminal proceedings against the sisters. The Applicant fears that there will be false charges against him if he were to return to India. 

12. Given the history of the Applicant’s relationship with the truth, it would seem that the Tribunal placed absolutely no credit or weight upon anything that the Applicant had to say and, therefore, affirmed the decision.

13. The Applicant’s application has three grounds.  The first one was that

    “1. The Second Respondent failed to comply with the mandatory requirement, under section 424A (read with section 424AA)of the Migration Act 1958 to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the Applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the Applicant to comment upon or respond to that information.

    Particular:

    The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

14. The problem with such a ground, is it is very wide and does not, in any way, try and identify what information it was that the Tribunal was supposedly not relaying to the applicant. 

15. When the Applicant appeared before me, on 31 July 2016, I made orders that he file written submissions which, hopefully, would have illuminated what it was that he was saying, in relation to that ground.  He failed to do so and, today, has given me the excuse that he was waiting for some papers from India to arrive, but they did not arrive and so, therefore, he just did not do what I asked him to do. 

16. I do not accept that excuse for one minute, but the point is that there was nothing here, today, that the Applicant could tell me as to what the information was that should have been given to him at the time.

17. The Respondent has given very thorough written submissions to the Court but, again, because there was a failure to identify what the information that the Tribunal supposedly failed to give to the Applicant really was, it made it very hard to give proper consideration to this ground. 

18. But, realistically, when one looks at the judgment itself, the Tribunal has simply said, we do not accept the Applicant, given the history of his being so cavalier with the truth. It does not seem to me that there is any particular information that needed to be put to the Applicant.  It all came from the Applicant’s own mouth, or his previous application for the protection visa.

19. With regard to ground 2 of the application, it read

    “2.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

    The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his return to India. 

20. Again, there is nothing expanded upon in that ground, and one just has to read the decision of the Tribunal to see that the Tribunal certainly did go through everything that it needed to do, and thoroughly so.

21. The third ground was that

    “The Tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act.

22. Again, there is no detail as to those grounds, but on my reading of the Tribunal’s decision, the satisfaction that the Tribunal had was that Australia did not owe the Applicant protection obligations, or complimentary protection obligations and such a conclusion was well and truly open to it.

23. Today, the Applicant appeared and I asked him what else he wanted to say.  He simply said to me two things: 

    a)Firstly, if he goes back to India, he will be arrested and,

    b)Secondly, because the former wife or the wife’s family has political links and police connections and her uncle, who is the main agitator, has just been released from jail and has criminal connections, he says that that gives him a well-founded fear that he will have serious harm if he is returned to India. 

24. Of course, both of those matters are matters that were before the Tribunal.  The Tribunal considered those matters and found that they did not accept that those matters, of which the Applicant speaks, had any foundation in truth or reality.  In raising such matters, the Applicant is really attempting to have a review based on the merits.

25. As I explained to the Applicant when he first appeared before me, I am not here to review the merits.  I am here to review whether the Tribunal has made any error at all in the way in which they have discharged their duties. 

26. I do not find that there has been any jurisdictional error at all, and I therefore dismiss the application and order that the Applicant pay the costs of the Minister, fixed in the sum of $7206.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  24 March 2017