CHZ15 v Minister for Immigration

[2016] FCCA 1351

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHZ15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1351

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Visitor FA600 visa – Transit TX771 visa – whether the Tribunal erred in making adverse credibility findings – whether the Tribunal failed to comply with the mandatory requirement under s.424A – whether the Tribunal failed to take relevant considerations into account – whether an adjournment was in the interests of the administration of justice – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 476

Refugees Convention 1951

First Applicant: CHZ15

Second Applicant: CIA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3003 of 2015

Judgment of: Judge Street

Hearing date: 3 June 2016

Date of Last Submission: 3 June 2016

Delivered at: Sydney

Delivered on: 3 June 2016

REPRESENTATION

The first applicant appeared in person.

Solicitors for the First Respondent: Ms L Blackadder
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicants pay the costs of the first respondent fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3003 of 2015

CHZ15

First Applicant

CIA15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 14 October 2015 affirming a decision of the delegate not to grant the applicant’s protection visas. The first-named applicant claimed to fear harm from the Bharatiya Janata Party if he returned to India.

2. The second-named applicant is the first-named applicant’s wife and was included in the application as a member of the applicant’s family unit and did not make any independent claims for her own protection.  Both applicants were found to be citizens of India and their claims were assessed against that country.  The first applicant applied for a Visitor FA600 visa on 4 July 2013 which was refused on 10 July 2013. 

3. On 5 February 2014 the first applicant and his wife applied for a Transit TX771 visa and claimed that he intended to transit through Australia to Fiji.  On 20 February 2014 the applicant was granted a transit visa.  On 10 March 2014 the applicant and his wife arrived in Australia.  On 14 March 2014 the applicant applied for protection. 

4. The delegate refused the application on 9 September 2014.  The applicants applied for review on 3 October 2014.  By letter dated 31 July 2015 the applicants were invited to attend a hearing on 2 October 2015.  The applicants appeared on that date to give evidence and present arguments.  The Tribunal summarised the first applicant’s background and that he was a businessman and farmer by profession in India.  He was born in a farming family. 

5. The Tribunal referred to the first applicant’s father being a local Congress Party leader and the applicant liked the ideology of the Congress Party.  The first applicant always felt the BJP Government led by the Chief Minister did not govern in the interests of the people.  The first applicant always desired to be a significant presence in his local community. 

6. The first applicant said he believed through his political involvement he would be able to provide strong opposition to the corrupt BJP member activities.  The first applicant alleged that his farming community had suffered greatly since the BJP leaders decided to force farmers to pay monthly donations to the party which created tension amongst the farming community. 

7. During the election some farmers were asked to pay one lakh rupees depending on their farming activities and small farmers paid thousands of rupees despite the global financial crisis which affected more or less everyone in India.  When the first applicant was selected to be the President of the Cooperative Society he raised the illegal party donation issue with the local BJP League on behalf of the farmers. 

8. The first applicant informed them of what was going on in the name of the party donations but they took it very nicely and told him that they were going to make inquiries about it but they did not believe the BJP members were involved in the illegal activities.  The first applicant alleges after a few months the applicant tried to contact them but they refused to discuss it.

9. The first applicant said they knew he was a Congress Party member and that in 2007 during the Minister of Assembly election he was on the advisory committee of the Congress Party candidate in his area.  In the last election the first applicant said he had significantly contributed to the Congress Party candidate.  The first applicant alleges he campaigned against the BJP candidate and asked other farmers to vote for the Congress Party. 

10. The first applicant says that after failing to stop the illegal activities the first applicant’s organisation organised a rally attended by most of the farmers including people from different walks of life to condemn the BJP activities.  The first applicant alleges they carried placards and banners with slogans against the local BJP leaders and their corruptions.  The first applicant says that the following day some local BJP members came to the first applicant’s house and threatened him. 

11. The first applicant alleges his house was ransacked and his family members were threatened.  The first applicant reported the matter to the local police immediately but says the police took six hours to come to his home.  The first applicant told the police why they came to attack him but the police were not interested and just took some statements and left.  The first applicant made an inquiry a few days later but was told it was still under investigation. 

12. The first applicant reported the matter to the local press but they never published anything in the newspaper.  The BJP members threatened to destroy them.  The BJP leaders accused the applicant of an illegal money laundering business and local police came to his house and threatened to arrest him.  The first applicant says that lucky he had cash at home.  He gave the police the money not to arrest him.  The first applicant says the police left without taking the first applicant. 

13. Local BJP members then came to the first applicant’s house and gave him an envelope written inside to pay 20 lakh rupees if he wanted to live in India.  They gave the first applicant only a few weeks to pay and asked him to pay in cash.  The first applicant was terrified and could not sleep for many days.  The first applicant said he got worried about his family and decided to leave India immediately.  The first applicant says he gave two lakh rupees to buy some time and asked them to give him time to organise money. 

14. The first applicant alleges they were not happy about it and beat him mercilessly.  The first applicant said his wife was assaulted and that he was dashed to the ground and asked to leave the party because of him the party reputation had suffered significantly.  The first applicant alleges that the local BJP members threatened to kill the applicant’s children and his wife.  She gave them all the gold she had and begged them to leave them alive. 

15. The first applicant promised to give them all they demanded and asked them not to touch his children.  The first applicant planned to leave India immediately because he did not have the money that they asked for and knew that it was political revenge and would never end if he continued to live in India. 

16. The Tribunal found the first applicant was not a witness of truth and was not satisfied that the first applicant had told the truth in relation to critical aspects of his claims.  The Tribunal gave detailed reasons for its adverse credibility finding in relation to the first applicant. 

17. It was in those circumstances that the Tribunal found that the first applicant was not a witness of truth and it was not satisfied there was a real chance the first applicant will suffer serious harm or harm of any kind if he returns to India now or in the foreseeable future and for those reasons the Tribunal found the first applicant did not have a well-founded fear of persecution.  The Tribunal identified that it had considered the first applicant’s claims individually and cumulatively and was not satisfied the first applicant was a person in respect of whom Australia had a protection obligation under the Refugees Convention 1951 and that the criterion of s.36(2)(a) of the Migration Act 1958 (Cth) was not satisfied.

18. The Tribunal considered the first applicant’s claims in relation to complementary protection and found that it was not satisfied there were substantial grounds for believing that it is a necessary and foreseeable consequence for the applicant being removed from Australia to India that there’s a real risk of significant harm. It was in those circumstances the Tribunal found that the first applicant did not satisfy the criteria under s.36(2)(aa) for a protection application.

19. The Tribunal affirmed the decision of the delegate.  On 10 December 2015 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit and some submissions.  No such documents were filed.  The grounds of the application are as follows:

    1. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act 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.

    2. The Tribunal's decision was unjust and made without taking in to account the full gravity of Applicant's circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from BJP.

20. At the commencement of the hearing the Court explained to the first applicant that this was a final hearing.  The Court explained that the hearing was to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power for the denial of procedural fairness to the applicants.  The Court explained in summary the Court was determining whether the decision was made lawfully and whether the decision was made fairly. 

21. The Court explained that if satisfied that the decision was affected by relevant legal error the decision would be set aside and sent back for further hearing.  The Court explained that if not satisfied that the decision was affected by relevant legal error the applicants’ application would be dismissed.  The Court explained that the Court would identify the evidence and then hear submissions from the first applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the first applicant in reply. 

22. The first applicant confirmed that he understood the nature of the hearing as explained by the Court.  The first applicant from the bar table noted that the Tribunal did not accept what he had said.  The first applicant also referred to the fact that he did not file any amended application because he did not know what to say. 

23. The solicitor for the first respondent submitted that in relation to ground 1 of the application there was no information that engaged any obligation under s.424A of the Migration Act1958.  I accept that submission. 

24. The gaps and inconsistencies in the applicants’ evidence do not give rise to any obligation enlivening the requirements of s.424A. No information was pointed to by the applicants that could enliven such obligation and the Tribunal did not breach s.424A of the Migration Act 1958 on the evidence before the Court.  Ground 1 fails to make out any jurisdictional error. 

25. In relation to ground 2 it is clear that the Tribunal identified the whole of the applicants’ claims and engaged in an orthodox assessment of the applicants’ credibility and made adverse findings that were open on the material before the Tribunal.  Further, I am satisfied the applicants’ had a genuine hearing.  Ground 2 is in substance an impermissible challenge to the adverse findings and invites a merits review by the Court.  Ground 2 fails to make out any jurisdictional error. 

26. The Court sought to explore with the first applicant, after hearing the submissions from the first respondent, whether the applicants were seeking to pursue an adjournment in relation to the fact that he had not filed any amended application.  The first applicant indicated that if he could obtain an adjournment he wanted one.  Nothing said by the first applicant identified any satisfactory explanation for his failure to take advantage of the opportunity given to him by the orders made by the Registrar on 10 December 2015. 

27. There was no basis to believe that an adjournment would give rise to any further step that would advance the interests of the administration of justice.  The first respondent opposed the adjournment without. No notice of any adjournment application was given by the applicants to the first respondent.  I am satisfied that the applicants had ample opportunity to put on an amended application if they sought to do so and the first applicant’s complaint that he did not speak English or understand the application does not give rise to a proper explanation as to the applicants’ failure to take advantage of the opportunity given to them by the Court orders. 

28. The first applicant did not suggest that he did not understand the Court orders that were made on 10 December 2015.  I am satisfied that an adjournment is not warranted in the interests of the administration of justice.  I am satisfied that an adjournment will only unnecessarily add to the costs to the parties and utilise limited Court time.  It was in these circumstances the application for an adjournment was refused.  Nothing said by the first applicant from the bar table identified any jurisdictional error. 

29. The application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 June 2016