CUO16 v Minister for Immigration

[2017] FCCA 878

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUO16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 878

Catchwords:
MIGRATION – Protection Visa - whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.36(2A), 424A, 424AA

Applicant: CUO16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 892 of 2016

Judgment of: Judge Vasta

Hearing date: 24 April 2017

Date of Last Submission: 24 April 2017

Delivered at: Brisbane

Delivered on: 24 April 2017

REPRESENTATION

The Applicant appearing on his own behalf with the assistance of an interpreter

Solicitors for the Respondent: Minter Ellison Lawyers

ORDERS

1. That the Application filed 28 September 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs of and incidental to this proceeding fixed in the sum of $5,600.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 892 of 2016

CUO16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 28 September 2016, the Applicant CUO16 seeks a review of the decision of the Administrative Appeals Tribunal that was made on 4 September 2016, which in turn had affirmed an earlier decision by the delegate of the Minister not to grant the Applicant a protection visa. 

2. In short compass, the Applicant has made the following claims.  He married his wife in India and he was of a higher caste to his wife, who was of a lower caste.  Notwithstanding that, the families had approved the marriage, except for the brother of his wife, who did not want the Applicant to marry his sister. 

3. The reasons for that, the Applicant had said, were because the Applicant was poor, and then, when asked later, he said because the friend of the wife’s brother also liked the wife and wanted to marry her.

4. The Applicant claims that there had been some physical altercations between himself and his future brother-in-law which involved some slapping.  Notwithstanding that, the marriage occurred and the wife came to Australia as a result of obtaining a student visa.  The two of them arrived in Australia in 2009.  The Applicant was a dependent of his wife, who had that visa.

5. What has occurred was that the wife gave birth to two children and the children were returned to India, but the Applicant stayed here.  The wife then has apparently left the Applicant and has then asked the Courts for some form of domestic violence order against the Applicant. 

6. The Applicant claims now that if he were to return to India that the family of his ex-wife would harm him.  He said that there have been a number of threats made by the family of the wife to harm him if he were to return to India.

7. The Tribunal did not accept those claims.  They noted that there were a number of inconsistencies in what the Applicant had written to the Tribunal and to the delegate and in his oral evidence to the Tribunal.  The Tribunal noted that there were a number of respects in which his account was unconvincing. 

8. The Tribunal did not accept that the wife’s brother objected to the relationship, because the Applicant was actually of a higher caste to that of the wife.  The Tribunal did not accept that the wife’s brother ever threatened or physically harmed the Applicant.

9. It should be noted that it seems strange that the brother, who apparently did not want the Applicant to marry his sister and was threatening him if he did marry the sister, would now be telling the Applicant that he was going to harm him because the sister had left him.  One would think that that is exactly what the brother-in-law would have wanted in the first place.

10. So there was an inherent improbability in the story.  The Tribunal ended up finding that the Applicant had fabricated his protection claims and did not accept that he would be harmed in India for any reason.  The Tribunal noted that there was a significant delay between the protection visa application and the claimed threats which had not been adequately explained.  Not surprisingly, the Tribunal had affirmed the original decision not to give the Applicant a protection visa.

11. The four grounds of a review are as follows:-  Ground one,

    “1. The Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A), of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India.”

12. I asked the Applicant if he could expand on this, considering he had not submitted written submissions in accordance with my orders, and I asked him how it was that the Tribunal had gotten it wrong and misconstrued this risk of and fear of significant harm.  He replied that he does not know how they got it wrong.  It is just that he was of the understanding that they had made a mistake.  On my reading of the reasons, I cannot see how the Tribunal has misconstrued the risk and fear of significant harm as set out in the Convention or the complementary protection criteria. I do not find that there is any merit in ground one.

13. Ground two is that

    2. The second respondent failed to comply with the mandatory requirement under s.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 a 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.”

14. I asked the Applicant what information it was that he was not given that was used against him.  He said that he did not remember.  In looking through the reasons, I cannot see that there is any information external to the story of the Applicant relied upon by the Tribunal and therefore no information that was given to the Applicant at all.  It was simply an examination of the story that he made and a rejection of that story.  So, in my view, there is no merit in ground two.

15. Ground three is that:

    “3. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provision of the Migration Act.”

16. The Applicant said to me that his understanding was that if he had a fear of going back that that meant that he could stay, and so therefore the Tribunal had not properly looked at his case.  The fear that he claims he has, must be a well-founded fear.  This means that the test involves an element of objectivity.

17. Objectively, the Tribunal looked at all of the matters and found that they were not satisfied that there was any cause at all for the Applicant to fear any harm to himself if he were returned to India.  Therefore, it cannot be said that they had no “reasonable satisfaction” of this aspect.  I find therefore that there is no merit in ground three, either.

18. Ground four is that:

    “4. The Tribunal has failed to investigate the Applicant’s claim, especially the grounds of persecution in India. Therefore the Tribunal decision dated 5 September 2016 was effected by actual bias constituting judicial error. “

19. I asked the Applicant to expand on this, and he told me that the Tribunal was rude when they were asking him questions.  It does not seem to me as though this ground has been made out either. 

20. When one has a look at the Tribunal’s reasons, they have been very thorough in looking at all of the aspects that the Applicant had claimed were his circumstances, especially the grounds of whether he would face significant harm if he were returned to India. 

21. The Tribunal rejected those grounds.  Simply because the Tribunal has rejected a story does not mean that they are biased and it does not mean that they are rude.  They are simply doing their job.

22. They have come to the conclusion that there is no truth to the story told by the Applicant.  Therefore they were not satisfied that Australia did owe protection obligations to the Applicant.  Therefore there is no merit in ground four. 

23. That being the case, I find that there is no jurisdictional error in this matter.  I dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  24 May 2017