CQH15 v Minister for Immigration

[2017] FCCA 1052

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQH15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1052

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where Applicant seeks merits review –– no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425

Cases cited:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

Applicant: CQH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2714 of 2015

Judgment of: Judge Hartnett

Hearing date: 10 April 2017

Delivered at: Melbourne

Delivered on: 10 April 2017

REPRESENTATION

The Applicant: In person

Solicitor for the First Respondent: Mr Brown

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application filed 9 December 2015 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2714 of 2015

CQH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 12 November 2015 in which the Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicant a protection (Class XA) visa (‘the visa’).  That application was filed on 9 December 2015.  The application was supported by an affidavit sworn by the Applicant on 9 December 2015.

2. The Applicant's grounds of application comprise 18 numbered paragraphs that are made up of a variety of different statements.  The grounds are not particularised.  In oral submissions made this day, the Applicant could not particularise them in any meaningful way by reference to a judicial review application. The affidavit of evidence sworn on the 9 December 2015 by the Applicant and filed by him contains 14 paragraphs.  The affidavit evidence contends that the Applicant's ex-fiancée's family and other relatives, who are able to exert political influence “with the police department”, were threatening him and that he faced persecution by reason of his "backward caste". 

3. The grounds of the application itself dispute that the Tribunal reached the correct decision; contend that the Applicant faces a real risk of being killed upon return to India; claims the Applicant has been threatened by potential assailants in India; claims that the Applicant’s freedom is endangered by the majority religion in India; claims that the Applicant’s ex-fiancée's family are so angry with him that they will kill him should he return to India; and claims that the Tribunal's focus on his visa history caused the Applicant to apprehend bias.

4. The First Respondent has filed a response dated 14 December 2015. The First Respondent seeks dismissal of the Applicant's application and that the Applicant pay the First Respondent's costs of this proceeding. 

5. By orders made 11 May 2016 by Registrar Buljan, the Applicant was to file and serve written submissions no later than 28 days before this hearing date.  The Applicant provided written submissions at the hearing this day.  In essence, the Applicant's written submissions restated his migration history since arriving in Australia in 2008 and claim again that the Tribunal failed to consider the Applicant's claims as a general statement and improperly took his earlier visa history into consideration. 

History

1. The Applicant was born on 28 August 1987 in Kodad, Nalgonda District in the Indian state of Andhra Pradesh (which now is located in the new state of Telangana) in India.  He is a citizen of India of Hindu religion who first arrived in Australia as the holder of a (subclass 572) student visa on 11 September 2008. The Applicant has not departed Australia since his arrival in 2008. While in India, prior to his arrival in Australia, the Applicant completed a Bachelor of Technology.  He has completed a Diploma of Multimedia and a Diploma of Business while in Australia. 

2. The Applicant applied for a further (Class TU) 572 student visa in October 2010.  This was refused on 8 February 2011, because some of the Applicant's financial security documents were found to be bogus.

3. The Applicant applied to the Migration Review Tribunal (as it then was) for review of the delegate's decision. On 7 June 2012 the Migration Review Tribunal affirmed the decision of the delegate to refuse the visa.

4. On 9 July 2012 the Applicant then sought Ministerial Intervention in his case.  On 15 March 2013, the Applicant was notified that the Minister had decided not to exercise his power to intervene in the Applicant's case.  At the Tribunal hearing and as set out in paragraph 34 of the Statement of Decision and Reasons of the Tribunal (‘the Decision Record’), the Tribunal asked the Applicant what were the exceptional circumstances the First Respondent was to take into account in using his or her discretionary powers; the Applicant said he tried to explain his social circumstances and wanted to complete his Master's degree.

5. The Applicant applied for review of the decision of the Migration Review Tribunal. When that application was unsuccessful the Applicant appealed the decision, however the Full Court of the Federal Court of Australia, on 25 September 2013, dismissed the appeal.  On 17 December 2013, the Applicant sought leave to proceed in the High Court of Australia, but that application for leave was also dismissed on 2 April 2014. 

6. On 1 May 2014, the Applicant lodged an application for a protection (Class XA) visa.  That application included a written summary of his claims.

7. On 3 July 2014, a delegate of the Minister refused to grant the visa, finding the Applicant's claims lacked credibility and were not supported by any form of documentation.  The Applicant lodged an application for review with the Refugee Review Tribunal (as the Tribunal then was), on 29 July 2014.  On 4 September 2015, the Applicant appeared before the Tribunal to give evidence and present arguments.

8. On 20 September 2015, the Applicant lodged two documents with the Tribunal and requested additional time to provide further documents.  On 4 November 2015, the Tribunal formally rejected that request, noting that several weeks had passed since the request had been made and the Tribunal could not wait indefinitely for further submissions before making a decision. The Tribunal made its decision on 12 November 2015.

9. On 9 December 2015, the Applicant lodged an application for judicial review, supported by an affidavit, with the Court, which is the subject of this proceeding.

The Tribunal Claims

1. The Tribunal set out in the Decision Record commencing at paragraph 8 a summary of the claims made by the Applicant being firstly, those made in an accompanying statement to his protection visa application, and secondly those made in an additional statement of claims submitted by the Applicant just prior to the scheduled hearing before the Tribunal on 4 September 2015.  Those additional claims were summarised by the Tribunal in its Decision Record commencing at paragraph 48.

2. The Applicant's central claim was that he faced persecution from his ex‑fiancée's family and their supporters (including Maoist groups) because of his conduct in relation to an arranged marriage that he agreed to, but then decided not to proceed with. 

3. The Applicant claimed an engagement ceremony had been held in his absence and the engaged couple was expected to attend the wedding ceremony on 25 May 2013.  The Applicant claimed hundreds attended the engagement.  However, the wedding did not take place as planned and the bride's parents, he claimed, are now ready to kill him.  The bride's parents, the Applicant claimed, belonged to a violent Maoist organisation. 

4. The Applicant’s claim included that the bride had attempted suicide while her parents had lodged a complaint concerning an illegal dowry at a local Kammam police station, as well as having taken the dowry matter to Maoist courts.  The Applicant feared that he will be locked up; killed; and feared having his leg or hand cut off by the bride’s relatives.  The Applicant claimed to the Tribunal he felt suicidal.  The Applicant also claimed he would be unable to hide in other parts of India, as he would be conspicuous and would be caught, as Maoists are everywhere in India and could catch him easily, if they knew he had returned to his home country.

5. The Applicant claimed further that the practice of honour killing places the Applicant's life in danger and that his bride's family will significantly harm him if he returns to India, and they would slit his neck in public. 

6. The Applicant provided no relevant documentary evidence to support his claims. He told the Tribunal his claims were unprovable, as they related to moral values.  He claimed his parents would not harm him, but his peers will undermine his confidence in India and that he has suicidal feelings, as he has failed to finish his education.

7. In his additional claims, the Applicant claimed those matters as set out in paragraph 48 of the Decision Record, which included that the police and judiciary were corrupt and could not provide him with effective State protection.

8. The Tribunal noted that it also had before it the delegate's decision record as part of the review application; the evidence given by the Applicant during the course of the hearing; and the post-hearing submission made by the Applicant.

9. The Tribunal noted in paragraph 69 of its Decision Record that at the hearing it was agreed the Applicant would provide additional material to support his claims for protection by 21 September 2015.  Specifically, he was asked to provide the First Information Report or legal document to support his claim of dowry harassment; a medical document about his mother, whom he claimed to be undergoing stage 2 chemotherapy for breast cancer; photographic or other evidence of the engagement party, which he claimed was held; and a copy of the business diploma obtained by him.  The Applicant had given oral evidence that a First Information Report was generated vexatiously by the bride's family, accusing the Applicant and his family of having broken the laws pertaining to dowries and that he feared arrest on arrival in India and then imprisonment.  Asked by the Tribunal if he had sought legal counsel to counter the false allegation, the Applicant said that he had not and that it would not have made any difference to the Maoists, who wanted to torture and kill him.

10. On 20 September 2015, the Applicant provided to the Tribunal a medical document pertaining to his mother's ill health and a copy of his business diploma. He requested further time on "humanitarian grounds" to produce further documentation.  The Tribunal considered the request, but given the Applicant's undertakings and the passage of time, the Tribunal did not accept the Applicant could not access and forward the outstanding documents and/or digital photographs.  On 4 November 2015, the Tribunal wrote to the Applicant to formally decline his request for more information.  The Tribunal noted that at the time of writing its decision on 12 November 2015, the Tribunal had not been provided with any further submissions from the Applicant or on his behalf.

Findings

1. The Tribunal found some of the Applicant's claims to be credible, as set out in paragraph 79 of the Decision Record, those being that the Applicant:-

   a)is from the Hindu religion and speaks, reads and writes Telegu, English and only speaks and reads Hindi;

   b)has a degree in engineering and diplomas in business and web design;

   c)did not complete his master's degree;

   d)has a family that resides in the Kammam district;

   e)has a mother who is being treated for cancer; 

   f)has parents residing in Hyderabad; and

   g)feels pressured by his middle class parents to achieve a better education and this is the cause of great personal turmoil for him. 

2. The Tribunal also, on the basis of independent country information before it accepted, as set out in paragraph 80 of the Decision Record, that Maoist extremists continue an armed struggle in India and there is country information to support that they are active in the Applicant's home district. First Information Reports are abused against bridegrooms, husbands and their families and illegal dowries are a cognisable and non-bailable offence in the Indian penal code.

3. The Tribunal otherwise found that the more significant claims of the Applicant lacked credibility.

4. As accurately set out in the submissions of the First Respondent and adopted herein the Tribunal made the following findings:-

   a)the Applicant was unable to provide any documentary evidence in relation to an engagement party he claimed was held in his absence or in relation to a wedding he claimed was planned for him.  He was provided with reasonable time to do so and he could not adequately explain his eventual failure to produce any documentary evidence.  Consequently, the Tribunal held that he had fabricated his claim about an arranged marriage, including that an engagement ceremony occurred and that a wedding was planned;

   b)the Applicant was unable to provide any evidence in relation to his claim to be engaged to a fiancée in India.  In the context of other credibility concerns and because of a lack of substantive evidence, the Tribunal did not accept that the Applicant was in a relationship as the fiancé of a woman in India;

   c)the Tribunal determined the evidence did not support the Applicant's claims that his family had been threatened by reason of his conduct or was facing serious or significant harm.  The Tribunal held the Applicant had fabricated this claim for migration purposes;

   d)the Applicant was unable to provide any evidence of dowry harassment, including a First Information Report that he claimed to have been produced in relation to this alleged offence.  On the basis of his lack of evidence, the Tribunal did not accept the Applicant would be harmed by any party by reason of his having breached traditional or religious marriage practices;

   e)the Tribunal rejected the Applicant's claims that he was engaged, that he had humiliated his ex-fiancée's family, that his family had experienced past harm, that there was an instance of dowry harassment, and that the Applicant would face serious or significant harm now or into the foreseeable future because of these occurrences;

   f)given that the Tribunal rejected the Applicant's claims regarding his alleged engagement and planned wedding, the Tribunal also rejected his claims to be facing a risk of harm from Maoist groups linked to his ex-fiancée's family in relation to those events;

   g)the Tribunal did not accept the Applicant had a claim for protection based on political opinion or membership of a particular social group;

   h)the Tribunal considered the Applicant's delay in making an application for a protection visa, which was lodged four weeks after his High Court application was unsuccessful, but about 12 months after the aborted wedding.  This delay, together with other credibility findings, led the Tribunal to conclude that the Applicant merely lodged the protection visa application to maintain his lawful migration status in Australia and not for any genuine or actual reasons regarding his claims that Australia owes him protection obligations;

   i)the Tribunal also considered the mental state of the Applicant, and took into account the Tribunal's guidelines on the assessment of credibility (including the effects of anxiety on Applicants) and was satisfied that the Applicant was given a real and meaningful opportunity to give evidence and present arguments in a manner consistent with s.425 of the Migration Act 1958 Act (Cth) (‘the Act’).  The Tribunal did not consider the Applicant's pre-existing medical conditions justified the grant of a protection visa; and

   j)for the reasons given, the Tribunal was not satisfied the Applicant met either the refugee criterion in s.36(2)(a) or the complementary protection criterion in s.36(2)(aa) of the Act.

Consideration

1. The procedural fairness requirements of the natural justice rule are set out in Part 7 Division 4 of the Act.  There is no indication in the processes of the Tribunal, in the evidence before the Court and in the Decision Record, that the Tribunal breached any of these requirements.

2. The Applicant was given an opportunity to attend a hearing before the Tribunal to give evidence and present arguments. The Applicant provided a written submission to the Tribunal in support of his application for review of the delegate's decision, which the Tribunal summarised in its Decision Record identifying the additional claims arising.  Post hearing, the Tribunal agreed for the Applicant to have further time to provide additional material to the Tribunal, with such time being agreed as 21 September 2015.  The Applicant did not honour his undertaking to provide further documents as sought by the Tribunal within the agreed timeframe, and the Tribunal, on 4 November 2015, some considerable time after 21 September 2015, indicated to the Applicant that no further documents had been received by the Tribunal and that it would not allow the Applicant any further extension of time to conclude his case before the Tribunal. 

3. As submitted by the First Respondent, the Tribunal’s decision, made two months after the hearing, to refuse the request for an extension of time to provide further documents that the Applicant had undertaken to provide, was not unreasonable. The Applicant was afforded a reasonable opportunity to provide such documents as the Tribunal requested and there was an evident and intelligible basis for the Tribunal’s decision to proceed without further delay. 

4. The Tribunal dealt with each of the claims made by the Applicant and did so in some detail.  The Decision Record points to a dialogue with the Applicant as to his various claims, and matters of concern to the Tribunal being put to the Applicant for his response. The findings made by the Tribunal, and each and every one of them, were open to the Tribunal on the basis of the material before it.  It is not open to the Applicant to introduce new claims on judicial review such as a claim to fear persecution by reason of his Hindu religion or his “Kamma” caste, these claims having not been made before the Tribunal. 

5. The Applicant seeks, essentially, merits review which is not a function of the Court.[1]

   [1] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

6. In his written and oral submissions, the Applicant contended that the Tribunal’s focus on his visa history provided a basis for him to apprehend bias on the part of the Tribunal.  That is a submission without any basis.  It was open to the Tribunal to review the Applicant’s visa history and to take into account the Applicant’s delay in lodging his application for a protection visa.  The Tribunal set this out in some detail in paragraph 89 of the Decision Record, accurately stating the facts and law on which it relied.  That paragraph is as follows:-

   “The Tribunal has also considered the Applicant’s visa history.  As noted above, the Applicant did not make an application for a protection visa until soon after the Applicant’s judicial appeal to the High Court was not successful in (sic) 2 April 2014. The key incident the Applicant led to the claims for protection - the Applicant’s scheduled wedding ceremony in India - arose in May 2013. The Applicant claimed he wanted to know the outcome of his appeals before considering an application for a protection visa. However, the Applicant would have lodged a protection visa after his Ministerial Intervention request was refused in August 2013. This, and the overall Applicant’s visa history, were discussed at the hearing. Had the Applicant had a genuine fear of harm arising out of his circumstances, the Tribunal considers that the Applicant would have sought to lodge a protection visa application earlier and not until his appeal options were exhausted, and the delay leads to a consideration that his claims in this regard are not genuine. The Tribunal notes that it is legitimate to take into account an Applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the Applicant’s claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 34). Given the abovementioned credibility findings regarding the consistency and reliability of the Applicant’s evidence, the Tribunal finds that the Applicant lodged his protection visa to maintain his lawful migration status in Australia and not for any genuine or actual reasons regarding his claims that Australia owes him protection obligations.”

1. No jurisdictional error attends the decision of the Tribunal.  The application is dismissed and costs shall follow the event.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 19 May 2017