CHO16 v Minister for Immigration

[2016] FCCA 3364

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHO16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3364

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – no proper grounds of review – impermissible attempt at merits review – application dismissed.

Applicant: CHO16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 758 of 2016

Judgment of: Judge Jarrett

Hearing date: 9 December 2016

Date of Last Submission: 9 December 2016

Delivered at: Brisbane

Delivered on: 9 December 2016

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 19 August 2016 be dismissed.

2. The applicant to pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 758 of 2016

CHO16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Administrative Appeals Tribunal.  The decision of the tribunal was given on 25 July, 2016.  It affirmed a decision of a delegate of the first respondent made on 29 June, 2015 to refuse to grant to the applicant a Protection (Class XA) visa. 

2. When the hearing commenced this morning, the applicant sought an adjournment of these proceedings.  He said that he had contacted a lawyer who had asked him to ask the Court for more time, and if he was given more time, then the lawyer would be able to prepare his case. 

3. This application was filed on 19 August, 2016.  It came before the Court on 10 October, 2016.  On that day, orders were made in the presence of the applicant for the preparation of the hearing today.  The first respondent delivered a book of relevant documents on 17 October, 2016 or thereabouts and the applicant was required thereafter to file an amended application if he wished to do so, any affidavit material if he wished to do so and he was required to deliver some written submissions.

4. He has been on notice for some time now that the hearing was listed for today.  There is nothing to suggest that the applicant was prevented from getting legal advice or engaging a lawyer when he commenced his proceedings or when the orders were made for the preparation of these proceedings.  I indicated to the applicant, in the course of the argument, that I would not grant any adjournment.  To the extent that there was an application for an adjournment, it is refused.

5. The applicant is a citizen of India. He arrived in Australia on 12 February, 2009 as the holder of a student visa. That visa ceased on 15 March, 2011. He applied for a subsequent student visa and was granted a bridging visa in that connection, but the student visa was refused on 31 March, 2011.

6. Thereafter, he remained in the community as an unlawful non‑citizen.  He was granted a further bridging visa on 19 January, 2015.  A couple of days later, on 22 January, 2015 he applied to the Department for a protection visa.  A delegate of the first respondent refused the visa on 29 June, 2015.  The applicant applied for review of that decision by the Administrative Appeals Tribunal. 

7. The tribunal could not make a decision in favour of the applicant based on the application for review and the departmental material given to the tribunal alone.  It invited the applicant to attend a hearing before the tribunal to give evidence and make submissions.  The applicant took up that opportunity.

8. The tribunal affirmed the delegate’s decision on 25 July, 2016.   

9. The tribunal, in its reasons for decision, set out the claims made by the applicant in his application for protection.  They are set out in paragraphs [9] – [16] of the tribunal’s reasons.   The tribunal recorded:

   9. In answer to the question in his protection visa application form as to why the applicant left India the applicant stated:

   I LEFT INDIA BECAUSE I GOT INVOLVED IN A FIGHT WITH LOCAL DRUG PADDLERS. THEY WANT TO KILL ME AND MY COUSIN MR GURBIR SINGH, THEY HAVE TRIED TO KILL ON COUPLE OF OCCASION. ME AND MY COUSIN GURBIR SINGH USED TO TAKE DRUGS BACK IN JAN 2008, WHEN WE WERE IN OUR TEENS, WE USED TO GO TO SCHOOL AND GOT INVOLVED IN DRUG RACKET WHO USED TO PROVIDE US WITH DRUGS. WE ARE ON BORDER TOWN OF INDIA AND PAKISTAN WHERE MAXIMUM AMOUNT OF DRUG IS BEEN TRANSPORTED ILLEGALLY FROM CROSS BORDER PAKISTAN. IN AUGUST 2008, THERE WAS DRUG AWARENESS CAMPAIGN I - OUR VILLAGE IN WHICH I PARTICIPATED AS AN ACTOR, WHICH ENCOURAGE YOUTH TO DISOWN DRUGS AND START A FRESH LIFE. ME AND MY COUSIN GOT IMPRESSED WITH PROGRAM AND PREPARED TO LEAVE DRUGS FOR A GOOD LIFE. AFTER THAT ALL PROBLEM STARTED, I WAS TOLD BY DRUG SMUGGLERS THAT IF - THEY SAY ANY THING ABOUT DRUG TRAFFICKING IN VILLAGE AND TEHSIL. THEY WILL KILL ME AS THEY SEE ME A POSSIBLE THREAT TO THEIR BUSINESS FROM WHERE THEY ARE MAKING HUGE AMOUNT OF MONEY, THEY TRIED TO SHOT ME AND MY COUSIN ON COUPLE OF OCCASIONS ONCE IN SCHOOL AND OTHER TIME IN FIELDS, BUT I WAS LUCKY TO ESCAPE THROUGH THEIR GUN SHOTS AS THEY WERE FIRED FROM LONG DISTANCE. I RUN FOR MY LIFE SINCE AUG 2008 IN DIFFERENT PLACES. SOME NIGHTS I HAVE SPEND IN HOTEL IN DELHI WHERE I HAVE PREPARED IELTS AND VISA APPLICATION BEFORE MAKING IT TO AUSTRALIA.

   10. In answer to the question as to what the applicant fears may happen if he returns to India the applicant stated:

   I WAS ON CONTINUOUS RUN SINCE AUG 2008 AS I WAS INVOLVE WITH WRONG PEOPLE. PEOPLE WITH WHOM I GOT ENGAGED WERE DRUG PADDLER AND HAVE LINKS TO UNDERWORLD. THEY USED TO SUPPLY DRUGS- TO HIGH SCHOOL STUDENTS IN OUR VILLAGE. WHOLE DISTRIBUTION OF THESE DRUGS ARE INITIATED BY OUR LOCAL MINISTER BIKRAMJIT SINGH MAJITHIA. HE IS VERY POWERFUL AND IS IN POWER. THERE ARE LOT OF CASES GOING ON AGAINST MR. BS MAJITHIA IN INDIA BUT NO GOVERNMENT HAVE EVER TAKEN

   - ACTION AGAINST HIM. THEY ARE SO POWERFUL THAT THEY CAN TRANSFER ANY HIGH OFFICIAL AND THERE IS FULL GOON KINGDOM IN OUR AREA. I HAVE WITNESSED DRUG TRANSPORTATION FROM PAKISTAN TO INDIA, EVEN HELPED THEM. BUT WHEN I HAVE INVOLVED MYSELF IN ANTI DRUG PROGRAM IN AUG 2008 - AND STOPPED HELPING LOCAL DRUG SMUGGLER. THEY STARTED SEE ME AS A POSSIBLE THREAT. THEY HAVE MADE ME UNDERSTAND ON COUPLE OF OCCASIONS THAT THEY WILL KILL MY FAMILY AND BURN ME -ALIVE BUT I NEVER LISTENED TO THEM. ONE DAY WHILE WORKING IN FARMS, TWO GUY CAME ON -MOTORBIKE AND SHOT A GUN FIRE AT ME. THEY SHOT ON COUPLE OF OCCASION, BUT I WAS ALWAYS LUCKY TO ESCAPE. THAN I LEFT MY VILLAGE ON ADVICE OF MY FAMILY, I STARTED LIVING IN HIDEOUT WITH MY COUSIN MR GURBIE SINGH. WHEREVER I GO THEY DISCOVER US AND THAN WE TRY TO ARRANGE A NEW _PLACE WITH A NEW NAME. PEOPLE WHO ARE BEHIND US ARE PART OF JAGDISH BHOLA GROUP WHO WERE ACTIVELY INVOLVED WITH B. S. MAJITHIA (CURRENT MINISTER IN PUNJAB). THEY HAVE CALLED ME IN -AUSTRALIA AND THREATENED ME THAT I AM ALIVE TILL I AM IN AUSTRALIA

   11. In answer to the question as to whether the applicant had experienced harm in India the applicant stated:

   ON COUPLE OF OCCASION TWO PEOPLE WITH MASK ON THEIR FACE FIRED A GUN SHOT AT ME WHILE WORKING IN FARMS. I WAS ABOUT 50 MTRS FROM THEM WHEN THEY SHOT AT ME. I WAS LUCKY TO ESCAPE THE SHOTS AND LEFT UNWOUNDED. THEN I LEFT MY VILLAGE AND SPEND SOME TIME WITH MY RELATIVES IN DIFFERENT VILLAGES. PEOPLE WHO ARE BEHIND   MY LIFE AND ARE ACTIVELY POWERFUL IN STATE AND HAVE A CRIMINAL BACKGROUND. I HAVE LODGED FIRST IN REPORT IN POLICE STATION AGAINST ATTACK WHICH INVOLVES GUNFIRE INCIDENT

   12. In answer to the question as to whether the applicant sought help in India after the harm he had experienced, the applicant stated:

   I APPROACHED LOCAL POLICE STATION. I HAVE TOLD THEM TWICE THAT THERE IS PERSON CALLED JATINDER BIR SINGH BILLU WHO IS BEHIND MY LIFE. THEY SUPPLY DRUGS IN OUR AREA AND HE SMUGGLED DRUGS CROSS BORDER FROM PAKISTAN. MR BILLU IS PART OF JAGDISH BHOLA GROUP WHO ARE ASSOCIATE WHO BIKRAMJIT SINGH MAJITHIA. POLICE OFFICER TOLD ME THAT DEPARTMENT CAN'T DO ANYTHING AS PEOPLE WHOM I HAD FIGHT ARE VERY POWERFUL AND PART OF RULING PARTY. IF THEY TAKE ACTION ON MY COMPLAINT, EITHER OFFICER WOULD BE TRANSFERRED OR WOULD BE EXPELLED. POLICE OFFICER COMPLETELY DENIED THAT THEY CAN’T HELP ME BUT ONE OFFICER LODGED FIRST INFORMATION REPORT(FIR) ON REPEATED COMPLAINTS

   13. In answer to the question as to whether the applicant moved, or tried to move, to another area of India to seek safety the applicant stated:

   INDIA IS BIG COUNTRY. BUT I KNOW PEOPLE WHO WERE KILLED BY PUNJAB UNDERWORLD WHO TRIED TO COMPLAINT AGAINST DRUG PADDLERS AND PEOPLE LIKE BILLU AND GROUP ACTIVITIES. I HAVE SHIFTED AND CHANGED SO MANY PLACE SINCE AUG 2008, BUT THEY ALWAYS DISCOVER ME AND I HAVE TO ESCAPE ALL THE TIMES. I CAN'T SLEEP WHILE IN INDIA BECAUSE I HAVE SO MUCH FEAR OF MY LIFE. THEY DID HARM TO ME. I CAN’T LIVE NORMAL LIFE AND USED TO LIVE IN UTTER FEAR WHILE BEING IN INDIA THEY LAID DOWN THE RULE THAT IF THEY DISCOVER ME THEY WILL MAKE ME DISAPPEAR. EVEN IF I MOVE TO DIFFERENT PART, THEY WILL DISCOVER ME AND KILL ME AS THEY ARE IN POWER IN PUNJAB. AKALI DAL IS RULING GOVERNMENT.

   14. In answer to the question as to whether the applicant would be harmed if he returned to India the applicant stated:

   THEY WILL KILL ME WHEN I WILL REACH INDIA. THEY EVEN THREATENED ME IN AUSTRALIA SO MANY TIMES DUE TO WHICH I ALWAYS IN STRESS AND OVERSTAYED MY VISA BECAUSE I DON’T WANT TO GET KILLED. SINCE I CAME TO AUSTRALIA, I NEVER WORKED PROPERLY BECAUSE FOR FEAR OF GETTING DEPORTED WHILE WORKING UNLAWFULLY. THEY HAVE EVEN TOLD MY FAMILY IN VILLAGE THROUGH A THREAT LETTER THAT IF I COME BACK TO INDIA, THE DAY I LAND, THEY WILL COME TO KNOW. THEY HAVE GOOD LINKS AT AIRPORTS AUTHORITY IN INDIA, SO THEY WILL COME TO KNOW ONCE I ARRIVE AND THEY - WILL KILL ME. I CANT CHANGE MY HIDEOUT ALL THE TIME WHICH I DID BACK IN AUG 2008 TO JAN 2009 AND LIVE A MISERABLE LIFE. SO I DON’T WANT TO GO TO MIA BECAUSE I KNOW I WOULD BE KILLED

   15. In answer to the question as to whether the applicant considered that the Indian authorities could protect him if he returned, the applicant stated:

   THEY ARE RULING PARTY IN PUNJAB AND CALLED AS SHIROMANI AKALI DAL. THEY ARE PARTNER OF RULING BJP PARTY. THEY ARE SO MANY ARTICLES AVAILABLE ON INTERNET WHICH CLEARLY INDICATES DRUG PROBLEM IN PUNJAB. HOW YOUTH OF PUNJAB IS STRUGGLING AND HOW PEOPLE LIKE BIKRAMJIT SINGH MAJITHIA AND JAGDISH BHOLA ARE INVOLVED IN DISAPPEARANCE OF PEOPLE FROM STATE. THEY ARE VERY POWERFUL AND PEOPLE FEAR TO TAKE ACTION AGAINST THEM

   16. In answer to the question as to whether the applicant thought that he could relocate in India the applicant stated:

   I AM UNABLE TO RELOCATE AS THERE IS CENTRALISED SYSTEM IN INDIA THROUGH WHICH THEY CAN TRACK AND I DON’T WANT TO GET KILLED WHILE BEING IN INDIA.

10. In summary, and taking the summary from the first respondent’s submissions, which in my view accurately summarises the claims, the applicant says that he used to take drugs in January, 2008 until there was a drug awareness campaign in which he participated.  He was thereafter prepared to leave drugs behind for a good life.  He was told at that stage, apparently by drug smugglers and the people that he purchased his drugs from, that if he said anything about them then he would be killed.

11. He alleged that the distribution of drugs was initiated by a local political minister who was very powerful.  The applicant witnessed and would assist with drug transportation from Pakistan to India, but then he stopped assisting and he was subsequently threatened.  He said that, on a couple of occasions, he was shot at in a school and in a field whilst he was with his cousin, but he managed to escape.

12. He had lodged a complaint with the local police against the person who was part of the drug smuggling ring, but he was told by the police that they could not do anything.  He claimed in his application that he had been threatened in Australia on a number of occasions and his family had received a letter containing a threat as well.  He essentially said he has been on the run since August, 2008. 

13. In his claims the applicant refers to his cousin.  His cousin is also an applicant for a protection visa.  He also has an application for judicial review before this Court to be determined this morning.  The grounds of review in the present application for review use the term “we” rather than “I”.  That is a reference, no doubt, to the applicant and his cousin. The terms of the application for review by the applicant’s cousin are identical.  The applicant said that he and his cousin had tried to turn people in their local village against drug use and had organised information and education for that purpose. 

14. The tribunal determined that it could not accept the applicant’s claims.  The tribunal accepted that there was a serious drug problem in the Punjab state in India, that there had been claims of police and political activist involvement in the drug trade, and that certain people named by the applicant in his claims were public figures who had been investigated in relation to the drug trade.

15. The tribunal did not, however, accept the applicant’s claims about his own involvement and the threats that had been made to him.  The tribunal rejected that the applicant was ever a drug addict, that he ever sold drugs or that he was ever threatened, attacked or fired upon for his involvement in the drug trade. 

16. The tribunal was not satisfied of those claims because it considered that the applicant’s evidence was inconsistent and implausible.  The tribunal sets out in its reasons in detail why it came to those conclusions about the applicant’s credit and the implausibility of his claims.  

17. The applicant has sought to review that decision.  In his application for review filed in this Court, he lists nine matters under the heading “grounds of application”.  None of those matters are proper grounds for an application for judicial review.  He does not assert in terms, or otherwise, jurisdictional error on the part of the tribunal.  It is, of course, necessary for the applicant to establish jurisdictional error before this Court can interfere with the tribunal’s decision.

18. The first matter raised by the applicant in his grounds of application is that he has a well-founded fear of persecution as he was cautioned in the past by drug peddlers that they would kill him and his cousin if they ever came back to India.  He says that he has used various agents to abscond from India. He claims that the BJP-SAD alliance is in power in Punjab and that many articles can be viewed online about cabinet minister Bikram Majithia and his drug dealing in Punjab.  However, that ground does not raise a ground of review.  It asserts a proposition, mainly that the applicant has a well-founded fear of persecution, but the tribunal’s finding about that matter is against the applicant.

19. The second matter raised is that the case officer – presumably the tribunal member – raised a concern that the applicant had given very vague answers, but the case officer had not considered his mental and psychological health, which affected his ability to respond with correction.  That ground and those matters set out in paragraphs [3] and [4] of his grounds of review cavil with the tribunal’s determination as to the applicant’s credit.

20. The credit findings made by the tribunal are well-explained in the tribunal’s reasons.  There is nothing illogical about the way in which the tribunal has reasoned its determinations about those matters.  It is, in my view, an unremarkable decision in the way in which it deals with the applicant’s credit and questions of implausibility concerning his claims.  There is nothing to suggest, in my view, that the tribunal did not properly consider the matters raised by the applicant.

21. Finally, in respect of those grounds, as the first respondent points out, whilst the applicant seems to complain that the tribunal did not take into account his mental and psychological health, there is nothing in the material in the court book or in the tribunal’s decision which would suggest that the applicant brought those matters to the tribunal’s attention and made any claims in respect of them.  There is nothing to suggest that the applicant had any mental or psychological impairment.  He brings no evidence to this court to establish that he was so affected at the time of the tribunal’s hearing.

22. Ground 5 suggests that the tribunal did not consider that the applicant lived in a hideout during his stay in India and that he had bribed agents to get him overseas so he could be safe.  That is cavilling with, again, the findings of fact made by the tribunal and does not raise a jurisdictional error. 

23. Ground 6 raised by the applicant is that the tribunal member accepted that there was a serious concern about drug issues in Punjab but failed to accept that the applicant was a victim – again, a finding of fact by the tribunal, if indeed a finding to that effect was made at all, and something in respect of which the applicant can not now cavil.

24. Ground 7 suggests that the applicant considers himself to be medically unfit because considering himself and his “cousin dead just shiver my spine”.  By this ground, he asks the Court to reconsider his application to give him a temporary stay until the next election in the Punjab, which is due in March, 2017. 

25. The applicant, despite being given the opportunity to do so through the directions made by this Court for the purposes of preparing for this hearing, did not file and has not filed, any evidence, medical or otherwise, that would assist to establish that ground.  As I have already recorded, there was no such evidence before the tribunal.  

26. Ground 8 is that the applicant suggests that he is still living in a hideout in Australia with a different name and identity.  I am not sure how that is intended to raise a ground of judicial review.  And ground 9 suggests that once a new ruling party comes to power, presumably in the Punjab in India, the applicant will move back to his country because he will get justice and the cabinet minister will not harm him.

27. The purported grounds of review to which I have just referred do not raise any jurisdictional error at all.  Having considered the tribunal’s reasons for decision in their entirety, I can discern no jurisdictional error in those reasons.  The tribunal’s reasons are clear and transparent. 

28. In those circumstances, this application must be dismissed. 

RECORDED: NOT TRANSCRIBED

1. Costs in these types of applications ordinarily follow the event.  That means that an unsuccessful litigant usually pays the costs of the successful litigant.  The usual rule that costs follow the event might be displaced where the Court is satisfied there are certain circumstances which means it should not apply the rule.  Impecuniosity is generally not a reason not to apply the rule.  Costs should follow the event in this case.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 9 December, 2016

Date: 23 December, 2016