CHC17 v Minister for Immigration

[2017] FCCA 2729

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHC17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2729

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 422B, 424A, 425.

Applicant: CHC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 495 of 2017

Judgment of: Judge Jarrett

Hearing date: 7 November 2017

Date of Last Submission: 7 November 2017

Delivered at: Brisbane

Delivered on: 7 November 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 29 May, 2017 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 495 of 2017

CHC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his application filed on 29 May, 2017 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 1 May, 2017 which affirmed a decision of a delegate of the first respondent not to grant him a protection (class XA) visa. 

2. The basis of the applicant’s judicial review application is not entirely clear.  His application sets out three grounds of review in which he asserts apparent bias on the part of the Tribunal, what he terms “procedural impropriety” and another ground under the heading “natural justice”.

3. On 7 August, 2017 I made directions which permitted the applicant to file and serve any amended application that he wished to pursue by 25 September, 2017.  He was required to file and serve written submissions in support of his application for review by 10 October, 2017.  He has done neither of those things. 

4. The first respondent opposes the application.  The second respondent entered a submitting appearance.  I have written submissions from the first respondent filed in accordance with the Court’s directions. 

5. For the reasons that follow, the application for review does not demonstrate any jurisdictional error on the part of the second respondent.  The application must be dismissed. 

6. The applicant is a citizen of India who arrived in Australia on 26 January, 2014 as the holder of a student visa.  On 22 April, 2016 he made an application for a protection visa. 

7. The Tribunal set out in its reasons the applicant’s visa history.  In his application for the visa, the applicant claimed to fear harm from his relatives in connection with a land dispute if he returned to India.  Specifically, the applicant claimed that:

   a)his life was threatened, so he came to Australia on a student visa;

   b)he would be killed due to a land dispute with his relatives, his paternal uncle and aunt, who had made threats against him many times;

   c)his relatives had threatened his parents and said that they would kill the applicant, he was beaten very badly by them and hospitalised.  His leg was broken; and

   d)when the applicant reported the incident to the police, the police denied filing the first investigation report because his uncle was powerful and the leader of a taxi union.

8. On 22 September, 2016 a delegate of the first respondent refused the grant of the visa.  The delegate set out the applicant’s migration history. 

9. On 11 October, 2016 the applicant lodged an application for review of the delegate’s decision in the Tribunal. 

10. On 21 March, 2017 the Tribunal invited the applicant to give evidence and present arguments at a hearing before it because it could not decide the application in the applicant’s favour on the material then before it. The hearing proceeded on 26 April, 2017 and by its decision dated 1 May, 2017 the Tribunal affirmed the decision under review.

11. It is right to say, I think, that having regard to the Tribunal’s reasons, the Tribunal harboured significant concerns about the authenticity of the applicant’s protection claims.  The Tribunal accepted “that the applicant was of the view that the filing of a protection visa application was likely his last option to be able to remain in Australia”.  It found that the applicant left India to study in Australia and over two and a half years later simply did not wish to return. 

12. The Tribunal was satisfied that there had been no persecution directed at the applicant for any reason relating to his race, nationality, religion, membership of a particular social group, or political opinion.  And whilst the Tribunal accepted that the applicant’s family were involved in a land dispute which was being progressed through a court in India, it did not accept that the applicant was the subject of any improper behaviour by reason of that court proceeding.  Nor did it accept that the applicant was assaulted by his aunt and uncle.

13. The Tribunal determined that his claims about those matters were implausible, given:

    a)the nature of the dispute with his grandfather, uncle and father and that the claim was appropriately been prosecuted through the court system;

    b)the applicant was not a party to the dispute, except that he might one day inherit his father’s interest, whatever that might be;

    c)there was no evidence of any threats he had received;  and

    d)the claimed threats had not come directly from his aunt and uncle, but rather through unknown people in India.

14. The Tribunal was careful to recount the applicant’s evidence given before the Tribunal at the hearing.  It noted the applicant’s evidence that his brother and two cousins were in the same village in India as the rest of the family and had not been harmed in any way by his aunt or uncle and it considered that supported the Tribunal’s view that his claims were implausible.  The Tribunal rejected the applicant’s claims that he had been targeted by relatives, or that he would be further targeted because he was the eldest son of the family.

15. It did not accept that the applicant’s uncle was the leader of the taxi union in Punjab, although it accepted that he was the leader of a local union with limited influence. 

16. The Tribunal rejected the applicant’s claims that the police would not offer the applicant protection because his uncle was connected to a member of parliament.  The Tribunal accepted that there had been some police inaction that had, effectively, prevented investigations into serious crimes and that they would probably not investigate a family dispute.  But the Tribunal did not accept that the applicant had made any complaint, given that it had rejected that his uncle and aunt were involved in the assault against him.

17. Having regard to the applicant’s past experiences and the country information before it, the Tribunal did not accept that there was any factual or objective basis for the applicant’s fear that he would be harmed by his aunt or uncle or anyone, and it found that his fear of persecution was not well-founded.

18. The Tribunal further found that the applicant could relocate to another Indian city or state and, in that respect, the Tribunal was careful to record that the applicant could read, speak and write English and Punjabi and that he was a young, able-bodied male.  It relied on country information that unemployment in India was low and the country was experiencing substantial economic growth.  It did not accept the applicant’s claims that he could not move to another part of India, or that he could be found wherever he went.

19. In respect of the latter assertion, the Tribunal noted the applicant’s evidence that he had moved to Chandigarh and had lived there for 18 months without incident and he was able to return to his home for visits and family events from time to time. The Tribunal was satisfied by that evidence that the applicant’s claimed fear of persecution did not relate to all areas of India, but, if it did indeed exist, it was localised. The Tribunal, therefore, rejected the applicant’s claims to protection and determined that he was unable to meet the criteria set out in s.36(2)(a) of the Migration Act.

20. The Tribunal relied on its factual findings to consider the applicant’s claims under s.36(2)(aa) of the Act. It determined that the applicant would not face significant harm if he returned to India and, in any event, he would be able to relocate elsewhere. For those reasons, the Tribunal affirmed the decision under review.

21. The applicant relies upon three grounds specified in his application to this Court to set aside the Tribunal’s decision.  Those grounds are:

    (1)     Jurisdictional error. The applicant alleged that there is apparent bias in the decision of the decision of decision-maker.  The Tribunal member did not consider that I have a well-founded fear of persecution from relatives;

    (2)     Procedural impropriety. The Tribunal did not discuss with the applicant the contents of the Court document and family tree in order to understand the relationships of all the family members.  There is ongoing dispute about land initially owned by the applicant’s grandfather.  My uncle and aunty wants to kill me to grab the land which is owned.

    (3)     Natural justice. The Tribunal did not provide me enough time to submit documents in support of my application.  I have genuine claims of significant harm and have appropriate proof to establish the relevant facts.

22. As to the first ground, the first respondent points out the serious nature of an allegation of bias and, quite properly, draws to my attention that such an allegation must be firmly and distinctly made and clearly proven.  It is right to say that the applicant has made no attempt to particularise that allegation. I raised it with him in the course of the oral hearing before me.  He was unable to explain his allegation any further than what is set out in his application for review.  It is, I accept, generally very difficult to establish bias, apprehended or otherwise, from the Tribunal’s decision record alone. 

23. The Tribunal considered the applicant’s claim to fear harm from his aunt and uncle.  Ultimately, the Tribunal did not accept that there was any factual or objective basis for the applicant’s fear that he would be harmed by his aunt or uncle or anyone else and, accordingly, found that his fear of persecution was not well-founded. 

24. The applicant has not filed any evidence to suggest that the Tribunal member had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, a proper evaluation of the matter.  There is no transcript of the evidence before me and, in the absence of a transcript, it is almost impossible for an applicant to establish an allegation of bias or apparent bias in respect of a decision-maker. 

25. I am not satisfied on the material before me that a fair-minded and informed person might reasonably apprehend that the Tribunal in this case might not have brought an impartial mind to bear on its decision.  As the first respondent quite properly points out, no inference of bias can be drawn from the mere fact of the Tribunal’s adverse findings and its reasons for those findings in this case.  Ground 1 does not establish jurisdictional error. 

26. In his written submissions, the first respondent has dealt with grounds 2 and 3 together. They are related and raise issues of procedural fairness and natural justice. I will deal with them together as well. The first respondent submits that the Tribunal complied with the requirements of Division 4 of Part 7 of the Act, which by virtue of s.422B of the Act is an exhaustive statement of the natural justice hearing rule in relation to matters with which it deals. The Tribunal is only required to comply with the provisions of that Division and is not required to afford the applicant common law procedural fairness. I accept those submissions. They are plainly correct.

27. The record demonstrates that the applicant was invited to a hearing in compliance with s.425 of the Act, and he attended that hearing. The Tribunal’s record demonstrates that it discussed with the applicant at the hearing a number of concerns that it had about the applicant’s claims and his motivations for his protection visa.

28. The applicant was given an opportunity to respond to those concerns and his responses are recorded in the Tribunal’s reasons for decision.  There was no suggestion made by the applicant before me that the Tribunal had misapprehended any of his claims, or had misapprehended or misunderstood any of his evidence that he gave to the Tribunal.  There was no suggestion that the Tribunal’s recording in its decision record of what occurred at the hearing was inaccurate. 

29. The applicant asserts by his second ground of review that he was denied procedural fairness because the Tribunal did not discuss with him the contents of the court document he gave tot the tribunal about his family’s land dispute and the family tree referred to in the Tribunal’s reasons in order to understand the relationships of all of the family members.  That allegation, however, cannot be made out having regard to the Tribunal’s reasons.  The Tribunal’s decision record, as the first respondent records, expressly states that it discussed with the applicant the contents of the court document and the Tribunal member constructed the family tree in order to understand the relationships of all of the applicant’s family members.

30. I accept the first respondent’s argument that, to the extent that the applicant contends that that was information for the purposes of s.424A of the Act, the court document was provided by the applicant to the Tribunal and, therefore, fell within the exception in s.424A (3)(b) of the Act. In relation to the family tree, it was a document produced by the Tribunal based upon the applicant’s own evidence and so also within the exception of s.424A(3)(b) of the Act. The Tribunal’s reasons demonstrate that the applicant was given ample opportunity to discuss those matters.

31. The applicant’s final ground contends that he was not given sufficient time to submit documents in support of his application. I reject that argument.  The Tribunal’s record and the court book reveal that the application for review was made on 11 October, 2016 and the Tribunal’s decision was made on 1 May, 2017.  The applicant had some eight months between when he commenced his application for review and its determination in which he could have provided to the Tribunal whatever it was that he wished to provide.

32. It is also apparent from the Tribunal’s reasons that the Tribunal invited the applicant to provide any material or written arguments on 13 October, 2016.  The hearing invitation did that.  And there is no evidence before me that the applicant made any request to the Tribunal for additional time to provide any additional evidence. Nor did the applicant identify any additional evidence that he may have wished to place before the Tribunal in the hearing before me. 

33. The oral submissions made by the applicant this morning confirmed that this application is, in effect, an application for merits review of the Tribunal’s decision.  Such a course is impermissible.  I accept that the applicant might be dissatisfied with the Tribunal’s decision and, in particular, with the Tribunal’s conclusions that he is not likely to suffer persecution should he be returned to India.  But the Tribunal’s findings about those matters are, in my view, unimpeachable. 

34. In those circumstances, the application for review does not demonstrate that the second respondent’s decision was attended by jurisdictional error.  The application for review must be dismissed. 

RECORDED   :   NOT TRANSCRIBED

1. Ordinarily, costs follow the event unless there are special circumstances that might suggest that that rule not be applied.  Here, the first respondent seeks an order for costs.  The applicant opposes the order for costs on the basis that, first, he does not agree with “the decision”.  I am not sure whether he refers to my decision or that of the Tribunal, but it does not matter.  Secondly, he has no money to pay an order for costs.

2. To the extent that he applicant disagrees with my decision, he has his appeal rights.  To the extent that he suggests that he has no money to pay an order for costs, it has never been the case that impecuniosity has amounted to special circumstances sufficient to displace the ordinary rule that costs should follow the event.  In those circumstances, the applicant shall pay the first respondent’s costs of and incidental to the application fixed in the sum of $5800.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 9 November, 2017.

Date: 9 November 2017