CHT16 v Minister for Immigration

[2016] FCCA 3365

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHT16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3365

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

Cases cited:

CHO16 v Minister for Immigration & Anor [2016] FCCA 3364

Applicant: CHT16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 763 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 appearing in person

Solicitors for the First Respondent: Spark Helmore

The Second Respondent entering a submitting appearance

ORDERS

1. The application filed on 22 August 2016 be dismissed.

2. The applicant 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 763 of 2016

CHT16

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 made on 27 July, 2016.  By that decision the Tribunal affirmed a decision of a delegate of the first respondent to refuse the applicant a protection visa. 

2. This application was commenced by the applicant with a request for an adjournment.  The applicant told me that he has recently engaged a lawyer and the lawyer asked him to ask the Court for some more time.  The lawyer would then review the file and prepare some submissions and help the applicant. 

3. I do not intend to adjourn the application.  These proceedings have been on foot now since August of this year.  There was a directions hearing in this case in September and directions were made for the preparation of these proceedings for hearing today.  The applicant was to file an amended application if he wished to do so.  He was to file some affidavit evidence if he wished to do so and some written submissions.  All of that was to happen after the first respondent had provided to the applicant a bundle of relevant documents.  The applicant has had sufficient time, in my view, to seek to engage a legal representative to assist him with his case. 

4. The material reveals that the applicant is a citizen of India.  He arrived in Australia on 5 June, 2009 as the holder of a student visa.  The visa was originally granted on 22 May, 2009.  His visa, however, was cancelled by the first respondent on 24 May, 2011.  The cancellation decision was the subject of review by a migration review tribunal on 17 February 2012.  The cancellation was affirmed.  Notwithstanding the absence of a visa, the applicant remained in Australia as an unlawful non-citizen.  He then subsequently made an application for a protection visa on 22 January, 2015. 

5. In its reasons for decision, the Administrative Appeals Tribunal sets out the claims relied upon by the applicant between paragraphs 9 and 16.  Those claims are usefully and accurately summarised by the submissions for the first respondent filed in these proceedings as follows: 

   3 In his application for the visa, the applicant claimed to fear harm from drug peddlers and dealers if he returned to India. The applicant further claimed that:

   3.1 He used to take drugs in 2008 until there was a drug awareness campaign and he was prepared "to leave drugs behind and start a fresh life ". He was then told by drug smugglers that if he said anything about them "in the village and Tehsil" he would be killed (CB 30).

   3.2 Distribution of drugs was initiated by the local Minister Bikramjit Singh Majithia, who was very powerful. The applicant witnessed and would assist with drug transportation from Pakistan to India, but then stopped assisting the local drug smuggler. He was subsequently threatened (CB 30).

   3.3 "On a couple of occasions", two men came on two wheelers and shot a gun at the applicant, but he escaped. The applicant lodged a police report in relation to this incident. He made a complaint against Jatinder Bir Singh Billu, who is part of the Jagdish Bhola group (associated with Minister Majithia), but was told that the police could not do anything (CB 31 ).

   The Jagdish Bhola group have called and threatened the applicant since he arrived in Australia (CB 32).

6. The Tribunal could not decide the review application on the material that was presented to it.  The Tribunal therefore decided to hold a hearing, as it was obliged to do.  The applicant appeared before the Tribunal to give evidence and present arguments in relation to the matters that arose in respect of his application.  He was assisted by an interpreter. 

7. The Tribunal ultimately determined to affirm the decision under review.  Whilst the Tribunal accepted that there was a serious drug problem in Punjab state in India, that there had been claims of police and political activist involvement in the drug trade and that particular people, particular senior public figures, had been investigated in relation to the drug trade, the Tribunal did not accept that the applicant was ever involved in any of that. 

8. It did not accept that he was a drug addict or had been a drug addict, that he had ever sold drugs, or that he had ever been threatened, attacked or fired upon as a result of his involvement in the drug trade.  The Tribunal set out in its reasons for decision why it did not accept those things.  Essentially, the Tribunal did not accept the applicant’s claims.  It found his evidence inconsistent, evasive, unresponsive and implausible.  The Tribunal formed the view that for much of the time, the applicant was fabricating his evidence.  The Tribunal set out in its reasons why it came to those conclusions. 

9. Dissatisfied with the Tribunal’s decision, the applicant has sought that this Court review the decision.  This Court can only interfere with the Tribunal’s decision if it determines that the Tribunal has made jurisdictional error.  That is something more than an error in the fact-finding process undertaken by the Tribunal, unless of course the relevant fact is a jurisdictional fact.  And it is something more than simply demonstrating an error of law because not all errors of law amount to jurisdictional error. 

10. The applicant, however, demonstrates none of those things.  In his application for review, he sets out nine matters under the heading “Grounds of review”.  Each of those nine grounds is in identical terms to the grounds of review in the proceedings that I have dealt with immediately prior to this one, CHO16 v Minister for Immigration & Anor [2016] FCCA 3364. The applicant in this case confirmed that he is the cousin of the person in the preceding application. The grounds, as I say, are the same. In this particular case, the grounds of review do not reveal any jurisdictional error.

11. Ground 1 is an attempt by the applicant to cavil with the Tribunal’s ultimate finding that it was not satisfied that the applicant had a well-founded fear of persecution.  As I have indicated, the Tribunal, for the reasons that it gave, did not accept the applicant’s claims.  The Tribunal’s reasons are clear and logical.  There was nothing illogical or irrational about them. 

12. The second matter relied upon by the applicant is that the case officer, which I take to be a reference to the Tribunal member, raised a concern that the applicant had given very vague answers, and that the case officer had not considered the applicant’s mental and psychological health which affected his ability to respond with direction.  The Tribunal did not consider those things because they were not raised before the Tribunal.  There is nothing in the material to which I have had regard which would suggest that the applicant’s mental or psychological health was of concern to anybody.  He certainly did not raise it with the Tribunal.

13. Ground 3 asserts that another issue raised by the Tribunal about dates in his statements being inconsistent and the like was wrong because “this whole episode” happened between 2006 and 2007 and, reading the grounds as I do, the applicant seems to suggest that it was unreasonable of the Tribunal to focus too closely on the inconsistencies in the applicant’s claims and evidence about what happened in that time.  The Tribunal, as I have indicated, set out in its reasons why it did not accept the applicant’s claims.  That they were inconsistent was one aspect of those reasons, but not the only aspect.  There were other aspects as well.  There is no error in the way in which the Tribunal approached the assessment of the applicant’s credibility or the plausibility of the applicant’s claims.

14. The fourth matter relied upon is that the Tribunal could not find details about a particular person but the applicant says he can get details of that person for, presumably, the Court.  But it is too late for that now.  This Court cannot receive further evidence relating to the factual claims made by the applicant before the Tribunal.  This Court needs to decide this application on the basis of the material that was before the Tribunal. 

15. The fifth matter relied upon by the applicant is that the Tribunal did not consider that he has lived in a hideout during his stay in India and he has bribed people to get overseas so he could be safe.  That matter and the next matter, paragraph 6 in the grounds of review – that the Tribunal member accepted there were serious drug problems in the Punjab but that the applicant was not a victim of that, are nothing more than findings of fact by the Tribunal which the Tribunal was entitled to make and for which it has given a rational and logical explanation. 

16. The seventh matter relied upon by the applicant is that he considers himself to be medically unfit because “considering myself and my cousin dead just shiver my spine.  I would like to court to reconsider my application to give me temporary stay until next election in Punjab which is during March 2017”.  Again, no evidence has been placed before the Court about whether the applicant is medically fit or unfit.  He has been given the opportunity to place that evidence before the Court through the directions that were made to prepare this matter for hearing.  There was nothing before the Tribunal that should have put the Tribunal on notice about the applicant’s medical conditions. 

17. Grounds 8 and 9 are not grounds of review either.  They are simply assertions of fact and they do not suggest jurisdictional error in the Tribunal’s decision. 

18. The applicant’s oral submissions to me did not advance his case.  Rather, they confirmed that what the applicant sought from this Court was a review of the merits of the Tribunal’s decision and its fact-finding: something which this Court cannot undertake.  In my view, the Tribunal’s reasons for decision are clear and cogent.  There is no suggestion, on a proper examination of them, that the Tribunal’s decision is affected by jurisdictional error. 

19. In those circumstances, this application must be dismissed.  Costs should follow the event, and there are no circumstances attending this case which suggest that they should not. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 9 December, 2016.

Date: 23 December 2016