CIB15 v Minister for Immigration

[2017] FCCA 801

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIB15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 801

Catchwords:
MIGRATION – Review of decision of the Administrative Appeals Tribunal – Applicant seeks impermissible merits review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.426A

Cases cited:

MZALO v Minister for Immigration and Border Protection (2016) FCA 1339
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10

Applicant: CIB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2461 of 2015

Judgment of: Judge Hartnett

Hearing date: 14 March 2017

Delivered at: Melbourne

Delivered on: 14 March 2017

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms McInnes

Solicitors for the First Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application for judicial review filed by the Applicant on 4 November 2015 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2461 of 2015

CIB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. This is an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (‘the Tribunal’), dated 16 October 2015.  By that decision, the Tribunal affirmed a decision of the First Respondent to refuse to grant the Applicant a Protection (Class XA) visa (‘the visa’). 

2. There is before the Court the evidence as contained in the court book filed 14 April 2016, the Response of the First Respondent which seeks dismissal of the application and the outline of written submissions of the First Respondent.  There is also the affidavit of the Applicant filed at the time of lodging of his application and sworn 4 November 2015 which annexes the notification of decision to him by the Tribunal and the Statement of Decision and Reasons (‘the Decision Record’).

3. The Applicant was required to file and serve written submissions by 7 February 2017 in accordance with the order of Registrar Buljan of 13 April 2016.  The Applicant has not filed any submissions.

Background

1. The Applicant is a male citizen of India.  The Applicant arrived in Australia on 25 April 2008 as the holder of a Student Higher Education Sector (Class TU) (subclass 573) visa granted on 26 February 2008.

2. A further Student Higher Education Sector (Class TU) (subclass 573) visa was granted to the Applicant on 22 May 2008.  That visa was valid until 30 August 2013. 

3. On 26 August 2013, the Applicant applied for a Student Vocational Education and Training Sector (Class TU) (subclass 572) visa.  That application was refused on 13 December 2013 as the Applicant was found not to be a genuine student.  The Applicant had not been undertaking any studies on his previous student visa for over three years from 28 April 2010.

4. The Tribunal affirmed the Department of Immigration and Citizenship’s (as it then was) decision on 2 June 2013.  The Applicant was granted a Bridging (Class WB) (subclass 020) visa to visit his brother in India on 23 December 2013.  The Applicant lodged his current application for a Protection (Class XA) visa on 27 June 2014.

5. On 15 December 2014 a delegate of the Minister refused to grant the visa.  On 14 January 2015 the Applicant applied to the Tribunal for review of the delegate’s decision. 

6. On 28 September 2015 the Tribunal wrote to the Applicant advising that it had considered all the material before it relating to his application, but was unable to make a favourable decision on that information alone.  The Tribunal invited the Applicant to provide a written submission setting out his claims by 8 October 2015 and invited him to give oral evidence and present arguments at a hearing on 15 October 2015.  The Applicant was advised that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

7. The invitation to attend a hearing of 28 September 2015 complied with the statutory requirements in respect of such an invitation to a hearing.

8. The Applicant’s authorised representative replied on 30 September 2015 enclosing a signed form from the Applicant indicating he would be attending the scheduled hearing on 15 October 2015. 

9. The Tribunal sent reminder SMS messages to the Applicant’s mobile phone on 8 and 14 October 2015 reminding him of the 15 October 2015 hearing date. 

10. The Applicant did not attend the hearing scheduled on 15 October 2015. 

11. By Decision Record of 16 October 2015, the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa.

The Tribunal’s decision

1. The Tribunal accurately set out the criteria for a protection visa as set out in s.36 of the Migration Act1958 (Cth) (‘the Act’) and Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The Tribunal referred to Ministerial Direction No. 56 made under s.499 of the Act and took into account policy guidelines as prepared by the Department of Immigration, PAM3 Refugee and Humanitarian Complementary Protection Guidelines and PAM3 Refugee and Humanitarian Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes to the extent that they were relevant to the decision under consideration. The Tribunal also referred to its need to consider whether there was a real risk the Applicant would suffer significant harm for the purposes of s.36(2)(aa) of the Act.

2. The Tribunal summarised the Applicant’s claims in paragraph 16 to 22 of its Decision Record as follows:-

   “16. In his protection visa application, the Applicant indicated that while he left India initially to study in Australia, before coming to Australia he had problems in India relating to racism.  This was because people were discriminated against by their caste, colour, creed and sex.

   17.  He was threatened by people of other communities and had to consult a doctor a few times due to the threats he was receiving from people of other caste and culture.  He believes the Hindu people in India dislike us. They can threaten us and not be punished.

   18.  The Applicant’s cousin invited him to join his political party, the Bahujan Samaj Party (BSP) and fight for justice.  The BSP, ‘is based on social ideas for the people to provide justice who are against racism.’ 

   19.  He feels unsafe if he has to return to India as the new BJP government is headed by Narendra Modi who is a hardcore Hindu.  He built the attitude of racism among the people.  He is dominated by Hindus and they don’t like Punjabi Sikhs.  The riots happened in India witnessed the same.

   20.  He will be at risk because he is a Punjabi Sikh and is involved in a political party and has supported that party against people of different caste and culture.  He was one of the main organisers who supported the BSP in election campaigns in India.

   21.  He does not consider the authorities will protect him.  They overthrew the government where the Prime Minister was a Sikh and now Hindus control the government.

   22.  The Applicant indicated at question 49 of his protection visa application, when asked if he has documentary evidence to support his claim for protection, that he would provide election posters and that his cousin had been killed.  The Applicant has not provided election posters or any further information or documents relating to the death of his cousin.”

3. The Tribunal accepted that the Applicant was a citizen of India. 

4. The Tribunal’s findings are otherwise accurately summarised in the First Respondent’s written submissions and are relevantly as follows:-

   “16. In relation to the applicant's claims to have had problems in India, the Tribunal noted that the applicant has not indicated who threatened him, when and where the threats were made, how many threats he received, the context in which the threats were made, the nature of the threats, or when the most recent threat was made. The Tribunal also noted that the applicant did not provide his caste and the caste of those he claimed to threaten him. It also found that although the applicant indicated that he had

   to consult a doctor a few times due to the threats he received, he has not indicated when he consulted the doctor nor has he provided details of those consultations. The Tribunal concluded that the applicant has not been threatened and has not attended a doctor due to having received threats.

   17. In relation to the applicant's claims regarding the change of Government in India, the Tribunal found that the previous coalition government was not ‘overthrown’ but rather failed to secure enough votes to be returned to government. The Tribunal found that the Sikh based Shiromani Akali Dal Party, which has held power in Punjab State for many years, currently governs in that state in coalition with the BJP. It noted that country information indicates that, while there are occasional differences in policy, senior officials from both parties say the alliance is strong. The Tribunal noted that this is contrary to the applicant's claim that Prime Minister Modi and the BJP are racist and don't like the Sikhs. Based on the evidence before it, the Tribunal did not accept that the applicant faces a real chance of persecution because he is a Punjabi Sikh and the Modi BJP government has been elected.

   18. The Tribunal noted that the applicant referred to riots which happened in India. It stated that it is not clear what riots the applicant was referring to. The Tribunal state that while there were anti-Sikh riots in India following the assassination of Indira Gandhi in 1984 by her Sikh bodyguards, this was over 30 years ago and current information indicates that there is little discrimination against Sikhs throughout India and the status of Sikhs in India has improved greatly since the 1980s. On the basis of the available evidence, the Tribunal concluded that the applicant does not face a real chance of persecution amounting to serious harm from Hindus or others on account of his Punjabi ethnicity and/or his Sikh religion.

   19. The Tribunal considered the applicant's claims to have been involved with the BSP. It considered country information in relation to the BSP and stated that country information indicates that in recent times, the BSP has not enjoyed political significance in Punjab.

   20. The Tribunal found the applicant's claims regarding his involvement with the BSP to be generalised and vague. For example, it noted that the applicant has not indicated when he joined the BSP, where and when he was involved in party activities, and what incidents occurred, involving what people of other castes and cultures that made him feel threatened or unsafe. The Tribunal also noted that the applicant has not any information regarding the claimed death of his cousin.

   21. The Tribunal accepted as plausible that the applicant was attracted to the philosophy of the BSP. However, it did not accept that the applicant was involved with the BSP as an organiser or that he was involved in election campaigns. It also did not accept that the applicant's cousin was killed because of his involvement with the BSP. The Tribunal therefore concluded that the applicant does not face a real chance of persecution amounting to serious harm as a consequence of his status as a Punjabi Sikh and his involvement with the BSP against people of a different caste and culture:

   22. The Tribunal concluded that the applicant does not face a real chance of persecution amounting to serious harm should he return to India, now or in the foreseeable future. The Tribunal also has had regard to country information provided by Department of Foreign Affairs and Trade, including information that indicates that the Indian Constitution prohibits discrimination on the basis of ethnicity, language and religion. The Tribunal also gave weight to the fact that the applicant has returned to India on four occasions since arriving in Australia in April 2008. The Tribunal considered that these actions support the conclusion that the applicant does not face a real chance of persecution or a real risk of significant harm should he return to India now or in the foreseeable future. For the same reasons, the Tribunal did not accept that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm, now or in the foreseeable future.”

Consideration

1. The Applicant’s grounds of application do not identify any legal error on the part of the Tribunal. They ask the Court to engage in merits review which is not a function of this Court.  To engage in fact finding about the merits of the Applicant’s case is no part of the function of the Court as was said in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10 at 10.

2. The Tribunal accurately set out the relevant law and properly considered and applied that legal framework.  The Tribunal considered each of the claims made by the Applicant and the integers of those claims, but, ultimately, did not accept the Applicant’s claims.  The Tribunal used relevant country information to support its findings and the findings made by the Tribunal were open to it on the evidence before it.  Essentially, the Tribunal did not find the Applicant’s claims to be credible. 

3. The Applicant was afforded procedural fairness as set out in Part 7, Division 4 of the Act.

4. The Tribunal was empowered with the discretion to make a decision on the Applicant’s application without taking further steps to allow or enable the Applicant to appear before it, as set out in section 426A of the Act which is as follows:

   “MIGRATION ACT 1958 - SECT 426A

   Failure of applicant to appear before Tribunal

   Scope

   (1)  This section applies if the applicant:

   (a)  is invited under section 425 to appear before the Tribunal; but

   (b)  does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

   Tribunal may make a decision on the review or dismiss proceedings

   (1A)  The Tribunal may:

   (a)  by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

   (b)  by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

   Note 1:       Under section 430A, the Tribunal must notify the applicant of a decision on the review.

   Note 2:       Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

   Reinstatement of application or confirmation of dismissal

   (1B)  If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.

   Note:          Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

   (1C)  On application for reinstatement in accordance with subsection (1B), the Tribunal must:

   (a)  if it considers it appropriate to do so--reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or

   (b)  confirm the decision to dismiss the application, by written statement under section 430.

   Note 1:       Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.

   Note 2:       Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

   (1D)  If the Tribunal reinstates the application:

   (a)  the application is taken never to have been dismissed; and

(b)  the Tribunal must conduct (or continue to conduct) the review accordingly.

(1E)  If the applicant fails to apply for reinstatement within the 14 - day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.

Note:          Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1F)  If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

(1G)  To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

(2)  This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.”

1. There was nothing unreasonable in the Tribunal proceeding to make a decision on the review in the manner in which it did.

2. As submitted by Counsel for the First Respondent, the Applicant engaged minimally with the visa application and the review processes.  Indeed, he engaged minimally with the Court this day.  The Applicant’s application before the Tribunal and his engagement are factually similar to the matter of MZALO v Minister for Immigration and Border Protection (2016) FCA 1339 where the Court found at [24] that:

   “This is not a case where there had been a pattern of close contact with the Tribunal such that it was reasonable to expect the Tribunal to take the short and simple step of making a phone call to the appellant to see why she had not attend the hearing.  This was not a case where the appellant’s previous behaviour in relation to her review suggested a close and vital interest in its conduct, and suggested that failure to attend a Tribunal hearing was not the result of a conscious decision and was, instead, out of character; cf my decision in Kaur v Minister for Immigration and Border Protection (2014) FCA 915; 236 FCR 393.”

3. No jurisdictional error attends the decision of the Tribunal.  There is no merit in the application before the Court. The application for review shall be dismissed with costs to follow that event.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  21 April 2017