CVY16 v Minister for Immigration

[2017] FCCA 2508

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVY16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2508

Catchwords:
MIGRATION – Visa – protection visa – request for impermissible merits review – where independent relocation finding made and not challenged by applicant – application dismissed.

Legislation:

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

Cases cited:

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Minister for Immigration & Citizenship v SZIAI & Anor (2009) 259 ALR 429

Applicant: CVY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 321 of 2016

Judgment of: Judge Heffernan

Hearing date: 6 September 2017

Date of Last Submission: 6 September 2017

Delivered at: Adelaide

Delivered on: 30 October 2017

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Ms C Stokes

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application filed 4 October 2016 is dismissed.

2. The applicant do pay the costs of the first respondent fixed in the amount of FIVE THOUSAND DOLLARS ($5,000).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 321 of 2016

CVY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal, dated 9 September 2016, affirming an earlier decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa.  The applicant has raised two grounds of application as follows:

   “(1)I am a genuine applicant for protection visa and AAT failed to assess my protection claims and fell into jurisdictional error.

   (2)The decision of AAT must be quashed.”

2. On 4 November 2016, the Registrar made orders which gave leave to the applicant to file and serve any Amended Application by 10 February 2017.  The applicant was also given leave to file and serve such further material, including transcript of the Tribunal proceedings, if he sought to rely on those materials.  No Amended Application has been filed and no further materials have been put on by the applicant.  The Registrar also made an order that the applicant was to file and serve an outline of submissions 10 days prior to the hearing.  No written outline of submissions has been received from the applicant.  The application was supported by an affidavit dated 4 October 2016.  That affidavit simply annexes a copy of the Tribunal decision record but otherwise adds nothing of substance to the application.

3. The applicant appeared before me self-represented but with the assistance of an interpreter in the Punjabi and English languages.

Background

1. The background of this matter was not the subject of any dispute and I have accordingly paraphrased the summary of the background matters contained in the outline of submissions filed on behalf of the first respondent.

2. The applicant is an Indian citizen.  He arrived in Australia in 2009.  At that time, he held a student visa which was valid until 11 May 2011.  He applied for and was successful in receiving a second student visa which was valid until 2 November 2012.  Shortly before that second visa expired, the applicant applied for a further student visa, but this application was refused.  He sought a merits review of that refusal in the Migration Review Tribunal.  On 14 February 2014, the Tribunal affirmed the original decision to refuse that visa.  Faced with this scenario, the applicant then sought the intervention of the Minister.  The Minister declined to intervene on 27 August 2014.

3. The applicant then lodged the subject visa application on 1 October 2014.  He claimed that he was in a relationship with an Australian citizen and that this had caused considerable upset to his family in India.  The applicant and his family follow the Sikh faith.  Because of this fact, he claimed to be at serious risk for his life if he were to return to India.  He claimed that he had actually been subjected to threats by people in his home village in India, specifically because of his relationship with an Australian citizen.  A further basis of his claim at that time was that his family had incurred major debts because they had needed to obtain a significant loan to procure medical assistance for his mother.  His family were not able to repay that loan to the people of his village and as a result, threats were being made by the villagers to harm him (the applicant) if he were to ever return to the village.

4. The application for a protection visa was refused by a delegate of the first respondent on 19 October 2015.  The applicant applied in a timely manner for a merits review of that decision lodging an application on 11 November 2015.  The Tribunal conducted a hearing on 8 September 2016 and the applicant had the assistance of an interpreter on that occasion.

5. As I have noted above, the Tribunal affirmed the decision not to grant the applicant a visa on 9 September 2016.

6. The applicant then applied within time for judicial review of the Tribunal decision in this Court.

The decision of the Tribunal

1. A reading of the decision record of the Tribunal[1] indicates that it made a concise summary of the claims advanced by the applicant.  In doing so, it set out the evidence that had been presented both to the delegate and itself.  It noted that the applicant had made a concession that he no longer feared harm in India because of his relationship with an Australian citizen who was not a Sikh.  That had apparently been a relatively short-term relationship.

   [1]     Court Book (‘CB’) pp 185-190.

2. The Tribunal made a finding that the applicant’s parents had been targeted in relation to an outstanding debt that had been incurred for a personal reason.  For that reason, it found that the fear of persecution was purely a personal matter and not persecution by reason of any Convention ground.  The Tribunal concluded there was no basis upon which to conclude that there was any discriminatory or systematic withholding of state protection for a reason identified by the Refugees Convention.  It identified that the evidence suggested that the local village authority had assisted in mediating the dispute between the applicant’s parents and the rest of the village.

3. The Tribunal had concerns about the veracity of the applicant’s claims.  It found the claims to be inconsistent and the timing of the claims to be suspicious.  It found it significant that there had been no mention of any threat of harm to the applicant in India at the time he made an application to the Minister for Ministerial intervention.  Further, it noted that there had been no harm to the applicant or any member of his family in spite of the origin of the apparent threat dating back to early 2014.  The Tribunal was ultimately satisfied, particularly when taking into account that the applicant had not attempted to send money to his parents to help satisfy the debt, that the debt simply did not exist.  The Tribunal was not satisfied that there was a real risk of significant harm to the applicant should he return to his home area.  Even though it accepted that two incidents had occurred in which his father had been beaten, the Tribunal was satisfied that nothing further had happened with respect to his parents since 2015 because the issue between them and the other villagers had been mediated.

4. In addition to the above, the Tribunal was satisfied that even if there was a real risk of significant harm, then it would be possible for the applicant to relocate to another area of India and thereby avoid any real risk of harm.  The Tribunal noted and regarded as significant the fact that the applicant’s brother had relocated with his wife to avoid harm, and that the applicant did not claim that his brother had been further targeted having done so.  For that reason, the Tribunal concluded that if any risk existed to the applicant (which it did not accept), it was only of a localised nature.  It concluded that relocation was both reasonable and practicable should the applicant return to India.  It rejected that the applicant’s parents would be required to relocate with him noting that they lived independently and that he had not claimed to be supporting them.

5. The Tribunal refused an application by the applicant for an adjournment to obtain further evidence. It took the view that the applicant had had more than sufficient time in which to prepare his evidence and present arguments to it. Given the credibility findings it had made, the Tribunal concluded that the request for an adjournment was simply a delaying tactic. In any event, it concluded that, in light of its relocation finding, further evidence was not likely to assist the applicant’s claim. Ultimately, the Tribunal concluded that this country does not have protection obligations to the applicant under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’), and for that reason, it affirmed the decision not to grant a protection visa to him.

Submissions

1. The applicant made brief oral submissions before me.  Those submissions were not specifically directed towards his grounds of application.  His first submission was that the Tribunal had informed him that it was not their responsibility to investigate his circumstances in an attempt to try and find a reason why he could not be returned.  It was for this reason that he asked for more time because he said that this was something that he was not aware of.  In part, it appears his submission was based on an allegation that he had been poorly advised by a migration agent at an earlier stage of the review proceedings. 

2. For the first respondent, Ms Stokes, submitted that the adjournment request had been considered properly by the Tribunal and that it had provided adequate reasons for refusing to delay in making its decision.  Those reasons were associated both with the concerns the Tribunal had with respect to the applicant’s credit and the fact that he had had nearly two years to prepare his claim.  Ms Stokes submitted that the applicant had clearly been given a meaningful opportunity to give his evidence and that in the circumstances it was a reasonable exercise of power by the Tribunal to refuse to adjourn. 

3. The first respondent noted that throughout the correspondence between the Tribunal and the applicant, after he had lodged his application for a merits review, the Tribunal made it clear that it was his responsibility to provide further information.  In this regard, it referred the Court to the letter dated 12 November 2015, acknowledging his application.[2]  That letter clearly indicated that:

   “If you wish to provide material or written arguments for us to consider, you should do so as soon as possible …”

   [2]     CB p 151.

4. Further, a handout enclosed with that letter put the applicant on notice in part:

   “If you have not already provided a copy of the Department’s decision, please do so as soon as possible.  If you have any material not yet provided, which you believe supports your application, including a statement setting out why you disagree with the Department’s decision, please send this as soon as you can.  …”

5. Further, a letter was sent to the applicant’s migration agent on 4 August 2016, which advised the applicant that if he was proposing to present evidence before the Tribunal, a witness statement would need to be provided to it by 1 September 2016.[3]  Finally, the invitation to attend at the Tribunal hearing that was sent to the applicant informed him that the Tribunal was not able to make a decision on the basis of the information contained in his application. 

   [3]     CB p 159.

6. By reason of the above correspondence, it was submitted that the applicant was clearly on notice that if there were other matters that he wished to put before the Tribunal, he needed to do so as soon as possible, prior to the hearing.  He was on notice from the date of the decision of the delegate that his claims had not been believed, and it was a matter for him to make his own claim. 

7. Further, the first respondent submitted that, in reality, the grounds as filed appear to be simply an application for an impermissible merits review.  There was some weight given to that submission by the fact that the applicant submitted to the Court that he requested that further inquiries be made into his case in order to find out more about his circumstances. 

8. In any event, the first respondent’s submission was that, given the relocation finding that had been made and which was not challenged by the applicant, this application could not succeed. 

Consideration

1. I am satisfied, firstly that the applicant was on notice of the fact that the delegate had not accepted his claims, and that the Tribunal required him to present any evidence, including evidence not already presented to the delegate, that he wished to rely on in advance of his application for a protection visa.  The correspondence clearly establishes this.  In the circumstances, it was not inappropriate or unfair for the Tribunal to refuse the applicant’s request for an adjournment.

2. The applicant had had close to two years in which to prepare and place himself in a position to properly present the evidence of his claims.  The refusal of the request for an adjournment was a reasonable exercise of power on the part of the Tribunal.  Further, there was nothing unreasonable in the conclusion reached by the Tribunal that, given the credibility concerns it had identified, it was likely that the application for an adjournment was part of a delaying tactic on the applicant’s part.  To the extent that it made a finding in this regard, such a finding was open to it. 

3. The grounds of review as stated in the application do not identify any ground of jurisdictional error.  At best, they represent a disagreement with the conclusion reached by the Tribunal and a request that the matter be remitted in order to enable the applicant to have a second opportunity to establish his claims.  That is simply a request for a merits review from this Court, which is not within the proper scope of judicial review.[4]  The comments of the Federal Court in the decision of NAHI[5] appear to be relevant to this matter:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal.  In many cases, those exceptions were purely on the basis that the appellants disagree with the findings.  In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal.  To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act.  As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed.  Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”[6]

   [4]     Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

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

   [6] Ibid at [10].

4. It was open to the Tribunal to make the findings on credit that it did.  It simply did not believe the claims that the applicant had made.  There was nothing unreasonable, irrational or illogical in those findings. 

5. Further, to the extent that the applicant complains that he had been deprived of the opportunity to present further information to the Tribunal, and that he believed the Tribunal itself would take the initiative in conducting an investigation, it is not the role of the Tribunal to make inquiries.  It is the job of the Tribunal to conduct a review.  There is no general duty on the part of the Tribunal to make inquiries as to the substance of an applicant’s claims.[7]  The applicant has not established that there was an obvious enquiry the Tribunal should and could easily have made that would have shed light on his claims.  There was no constructive failure to exercise jurisdiction.

   [7]     Minister for Immigration & Citizenship v SZIAI & Anor (2009) 259 ALR 429 at [25].

6. Ultimately, however, even if I was of the view that the Tribunal had been unreasonable in reaching the conclusions it did as to the credit of the applicant or the facts as presented, the applicant has not challenged the relocation finding, which clearly appeared to be open to the Tribunal on the evidence.  For that reason, even if the applicant had been able to establish jurisdictional error with respect to some aspects of the Tribunal decision (and I am not satisfied that he has), this would be an appropriate matter in which to refuse relief. 

7. The Tribunal has found that it would be possible in the sense of being reasonable and practicable for the applicant to relocate within India and thereby avoid any risk of harm insofar as that risk did exist. 

8. For these reasons, I am not satisfied that the applicant has established that any jurisdictional error occurred in relation to the Tribunal’s findings, and I make the orders to be found at the beginning of these reasons. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  30 October 2017