CUB16 v Minister for Immigration

[2016] FCCA 3434

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUB16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3434

Catchwords:
MIGRATION – Administrative review – Protection Visa refused – application dismissed – applicant pay respondent’s costs.

Legislation:

Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001 r.13.03C(1)(e)

Applicant: CUB16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 890 of 2016

Judgment of: Judge Vasta

Hearing date: 19 December 2016

Date of Last Submission: 19 December 2016

Delivered at: Brisbane

Delivered on: 19 December 2016

REPRESENTATION

There being no appearance on behalf of the Applicant

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the Application filed 27 September 2016 be dismissed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $1,443.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 890 of 2016

CUB16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this court on 27 September 2016, the Applicant, CUB16, has asked this court to review the decision of the Tribunal that was made on 13 July 2016.  That decision, having been made on 13 July 2016, meant that the Applicant had to file his application within 35 days of that decision and, it would seem, he is at least three weeks out of time. 

2. In order to decide whether or not I ought to grant leave I really need to look at three things: 

   a)What was the excuse for not filing ; 

   b)Whether there’s any prejudice to the Minister; and,

   c)Whether there really is an arguable case to be heard by this Court. 

3. The Applicant came to Australia in 2009 on a student visa and, it seems, did not go through with his studies.  He ended up gambling and having a number of gambling debts. He then, to use a colloquialism, “disappeared” and came to Queensland where he worked at labouring jobs.  The information I have suggests that his parents had actually thought that he was a missing person.  He ended up being found by authorities and it was then discovered that he had overstayed his visa.  It was then that he made an application for protection. 

4. The application that he made doesn’t really make much sense.  The application asked, “What the applicant fears may happen if you return to India?”  He said:

   “There are lots of reasons may happen if I go back to my country.  I am in Australia since 2009.  I was in Good Condition until 2011 and after that some incidents changed my life.  Since March 2012, I do not have any kind of proper Address.  I can say I have stayed.  If I go back to my country in this situation, I am afraid I can loose my mental condition. As other than my parents, I can be treated like inhuman way, or tortured by my other family members or society of my home place.” 

5. In answer to the question, “Why the applicant thought he would be harmed if he returned to India?” he stated in his application:

   “The reason I am applying for protection visa is to ask Australian Gov. what kind of law allow me to stay in this country where I lost more than five years of my life and future of my family.  I was a good student back in my country and in Australia. I started my Bachelors in 2009 but never finished it.  There are a lot of reasons for my unfinished studies and current situation. I had treated like animals and as unimportant person in time during my stay in Australia.  No one supported me or helped me to fix things.  In these 5 years I suffered from mental pressures and inhuman treatment. 

   There are sometimes even Australian Gov. refused to help me.  Now, I have nothing with me no money, no education, no future or help from anywhere in the world. 

   I can loose my mental situation or treated like inhuman behaviour, or may loose my life.”

6. Paradoxically, the Applicant blamed this country for his current situation yet was asking this country for its protection for something that may happen in India.  Obviously the delegate of the Minister refused his application and then the Applicant sought to go to the Administrative Appeals Tribunal.  In giving evidence before that Tribunal, the Applicant claimed that he feared returning to India because it would cause him further stress and unhappiness to return in shame to India having wasted his parents’ money with nothing to show for it. 

7. The Applicant claimed that this embarrassment and shame would be exacerbated by the fact that his relatives and others in his parents’ village knew about his perceived failure in Australia.  The Applicant also claimed that he felt partially responsible for his father’s stroke and that his parents have less money to spend on his sister’s wedding because they had given money to him.  The Applicant said that his parents had borrowed approximately $20,000.00 from the bank, from friends and from extended family, to assist with his education in Australia. 

8. The Applicant was concerned that his parents’ friends and extended family would pressure him to pay the money back and would shame him for wasting the money. The Applicant said that this would be torture for him.  He confirmed he did not fear any physical harm in India but rather the people in India would make him feel even more stressed, pressured and upset. 

9. It really would come as no surprise that the Tribunal found that such a situation does not come within the Refugee Convention criterion nor within the complementary protection criterion.  Quite properly, the Tribunal affirmed the decision. 

10. The Applicant then applied to this Court and his ground for extension of time was that, during the time before this application was filed, he was waiting for ministerial intervention for his claims’ consideration.  That is not a proper excuse for not filing his application. 

11. The grounds of his application are somewhat instructive: 

    “1. Not happy with the decision of immigration officer and tribunal officer. 

    2.Not happy with the way the looked at my case and claims. 

    3. Not happy how the deal with me during last two years while my application was in office.

    4. Not proper reasons to answer my claims. 

    5.Answers why there was no investigation about my claims I bought in front of immigration and tribunal office.”

12. Those grounds have absolutely no merit whatsoever.  The Applicant has not understood that this Court is not another hearing place where he can simply say, “Please give me a visa?”  This Court looks at whether or not there are any jurisdictional errors and looks at not whether a particular decision made by the Tribunal should have been made but whether the decision made by the Tribunal was one that could have been made.  If it was a decision that could have been made there is no jurisdictional error. 

13. As detailed in my recitation of the facts, the decision made by the Tribunal was certainly one that was open to it. 

14. The matter has been listed for a first court date today but the Applicant has not attended.  In fact he has left the country and gone back to India, the same place from which he is asking this Court to allow him to have protection.  This is a situation that is just intolerable and just shows the enormous contempt this Applicant has for the very generous visa protection rules that of this country. 

15. He has not turned up here today.  I do not see any merit in prolonging this very unmeritorious application.  I am proceeding pursuant to r.13.03C (1)(e) and looking at this matter on the merits.

16. On the merits, I am of the view that there is no jurisdictional error that has been established or could ever be established.  For that reason I dismiss this application today and order that the applicant pay costs of the Minister in the sum of $1,443.00. 

17. I do note that he is in India at the moment.  I cannot see that there is any way that he can set foot back in this country in any event so it does become somewhat of a moot question but that’s my decision. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 20 January 2017