CVY16 v Minister for Immigration and Border Protection

[2018] FCA 179

FEDERAL COURT OF AUSTRALIA

CVY16 v Minister for Immigration and Border Protection [2018] FCA 179

Appeal from:	CVY16 v Minister for Immigration and Border Protection [2017] FCCA 2508
File number:	SAD 306 of 2017
Judge:	GRIFFITHS J
Date of judgment:	28 February 2018
Catchwords:	MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia – whether the primary judge erred in finding that the AAT did not commit jurisdictional error, in circumstances where the AAT disbelieved the appellant’s claims and found that relocation within India was reasonable and practicable – whether the primary judge erred in finding that it was not inappropriate or unfair for the AAT to refuse an adjournment request by the appellant – appeal dismissed, with costs
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429
Date of hearing:	27 February 2018
Registry:	South Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	28
Counsel for the Appellant:	The appellant appeared in person, with the assistance of an interpreter
Counsel for the First Respondent:	Ms M Scanlon
Solicitor for the First Respondent:	The Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

SAD 306 of 2017

BETWEEN:

CVY16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	28 FEBRUARY 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed. 

2.The appellant pay the first respondent’s costs of and incidental to the appeal, as agreed or assessed. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1. This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA).  The judgment is reported as CVY16 v Minister for Immigration and Border Protection [2017] FCCA 2508. The FCCA dismissed the appellant’s judicial review challenge to a decision dated 9 September 2016 by the Administrative Appeals Tribunal (AAT), which affirmed a decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa. 

2. The appellant represented himself, both below and on the appeal.  On both occasions, he was assisted by an interpreter. 

3. For the reasons that follow, the appeal must be dismissed, with costs. 

   Background facts summarised

4. The appellant did not contest the primary judge’s statement that the background of the matter was not in dispute.  Drawing largely on the primary judge’s summary of the background facts, the following matters should be noted.  The appellant is an Indian citizen who arrived in Australia in 2009.  He held a student visa which was valid until 11 May 2011.  He then obtained a second student visa which was valid until 2 November 2012.  His attempt to obtain a further student visa was unsuccessful and he sought a review in the then Migration Review Tribunal.  On 14 February 2014, that Tribunal affirmed the decision to refuse him a further student visa.  On 27 August 2014, the Minister declined to intervene. 

5. On 1 October 2014, the appellant lodged his application for a protection visa.  He claimed that he was in a relationship with an Australian citizen and that this had caused considerable upset to his family in India, who were Sikhs.  He claimed that there would be a serious risk to his life if he were to return to India.  He said that he had been subjected to threats by people in his home village there, specifically because of his relationship with the Australian woman.  He also claimed that his family had incurred major debts in funding medical assistance for his mother.  He said that his family was unable to repay a major loan from people of his village and that the villagers had made threats to harm him if he were ever to return to the village. 

6. On 19 October 2015, the Minister’s delegate refused a protection visa.  The appellant appealed to the AAT.  The AAT affirmed the delegate’s decision on 9 September 2016, the day after the AAT hearing which the appellant attended to give evidence and present his case.  The AAT refused to grant the appellant more time for him to gather and present further evidence to it.  At [28], the AAT member said:

   At the conclusion of the hearing the applicant asked the Tribunal to give him more time. He said when he applied for the Protection visa he believed the Department would investigate his situation in India. Because they haven't done so, he needs more time to get a letter from the village leader about the situation there. The Tribunal advised the applicant it would not grant further time and would proceed to make the decision within the next few days. The Tribunal put to the applicant he had had nearly 2 years to obtain any evidence he wished to put forward. Insofar as he was under the misapprehension that the Department would make enquiries on his behalf, he should have known since the delegate's decision in October 2015 that not only would they not do so but that his claims were not believed. The applicant has not provided any new evidence to the Tribunal either at the time he lodged the application for review or since that time. The Tribunal considers the request for more time is a delay tactic as there is no claim or evidence to show the applicant is awaiting any further information from India. The applicant had 5 weeks' notice of the hearing date, and has done nothing to seek or provide further documentary evidence. The Tribunal has decided not to delay making a decision on the applicant's request that he might now get a letter from his village, in circumstances where no action has been taken in the last 2 years and particularly in the last 5 weeks, to obtain the information. Further for the reasons given above, even if the applicant obtained evidence stating there were new threats of harm to his family over money owed, the Tribunal has found the harm is localised and s.36(2B)(a) applies such that there is taken not to be a real risk of significant harm in India.

7. Shortly thereafter, on 4 October 2016, the appellant sought judicial review of the AAT’s decision in the FCCA. 

   The primary judgment summarised

8. After setting out the background facts, largely along the lines of those described above, the FCCA noted that the AAT summarised the evidence that had been presented both to it and to the delegate.  The AAT noted at [15] that the appellant had made a concession that he no longer feared harm in India because of his relationship with the Australian woman who was not a Sikh, and that this had apparently been a relatively short-term relationship.  It was also noted that the AAT had made a finding that the appellant’s parents had been targeted in relation to an outstanding debt but that the debt had been incurred for a personal reason, with the consequence that any fear of persecution was purely a personal matter and not related to a Convention ground. 

9. The primary judge also noted the AAT’s concerns regarding the veracity of the appellant’s claims and its findings that the claims were inconsistent and their timing was suspicious.  It attached significance to the fact that the appellant had not mentioned any threat of harm at the time he sought Ministerial intervention, nor had there been any harm to any members of his family over the period since the alleged threat was made in early 2014.  The AAT concluded that the debt did not exist and it was not satisfied that there was a real risk of significant harm should the appellant return to his home area.  It accepted that his father had been beaten but that nothing further had happened with respect to his parents since 2015 because the issues between them and other villagers had been mediated. 

10. In addition, the primary judge noted that the AAT provided an alternative basis for dismissing the appellant’s merits review application.  It related to the fact that the AAT concluded that, even if there was a real risk of significant harm (i.e. contrary to the findings above), the appellant could relocate to another area of India and thereby avoid any real risk of harm.  The AAT pointed to the fact that the appellant’s brother had relocated with his wife to avoid harm and there was no claim that the brother had been further targeted.  The AAT concluded that relocation was both reasonable and practicable. 

11. The primary judge noted that the AAT had refused the appellant’s application for an adjournment to obtain further evidence. 

12. The primary judge summarised the brief oral submissions made by the appellant in support of his judicial review application.  His Honour noted that the submissions were not specifically directed to the grounds of judicial review.  Those grounds of judicial review were (without alteration):

    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. 

13. The primary judge noted the submissions made on behalf of the Minister concerning the circumstances surrounding the appellant’s unsuccessful adjournment application.  Those submissions emphasised that the appellant had been put on full notice of his right and responsibility to provide further information to the AAT in support of his review application. 

14. The primary judge found that it was not inappropriate or unfair for the AAT to refuse the adjournment request, having regard to the notice given to the appellant about the need for him to present any evidence in support of his protection visa application and that he had almost two years to attend to those matters.  The primary judge also found no error in the AAT’s view that the adjournment application was part of a delaying tactic, having regard to its expressed concerns about the appellant’s credibility. 

15. The primary judge held that the judicial review grounds did not identify any jurisdictional error and that the appellant merely disagreed with the merits of the AAT’s decision to refuse his adjournment request.  With specific reference to the appellant’s claim that he misunderstood the AAT process and thought that the AAT would make its own inquiries in India, the primary judge said at [27] of his reasons for judgment (footnote omitted):

    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. 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.

16. In a footnote to this passage, the primary judge referred to the well-known decision of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25].

17. Moreover, the primary judge noted at [28] that even if the AAT had been unreasonable in making its adverse credibility findings, the appellant had not challenged its alternative finding regarding relocation. 

18. Accordingly, the application for judicial review was dismissed, with costs. 

    The appeal

19. The appellant raised the following single ground of appeal (without alteration):

    Your highness in FCCI has overlooked the fact that the Tribunal member decided my review application ignoring the facts and consequences if I go to India.  There are serious life threats for me and I will be killed if I go to India. 

20. The appellant did not provide a written outline of his submissions.  His oral submissions largely repeated the case run below before the FCCA, including the appellant’s misunderstanding and confusion that the AAT would make its own inquiries of circumstances in India affecting his case.

21. It is unnecessary to summarise the Minister’s submissions because they are substantially reflected in my reasons for dismissing the appeal. 

    Analysis of the appeal

22. To succeed in the appeal, the appellant needs to establish that the primary judge has committed a material appealable error, whether that be an error of law or fact, or that the exercise of a judicial discretion has miscarried by reference to well established principles.  The primary judge was exercising a judicial review jurisdiction which, in essence, required the appellant to establish in the FCCA one or more jurisdictional errors on the part of the AAT. 

23. The primary judge gave adequate reasons explaining why he did not accept any of the complaints raised by the appellant in support of his judicial review application. 

24. The appellant has failed to identify, let alone establish, any appealable error in the primary judge’s reasons.  Accordingly, there is no substance in his appeal. 

25. To the extent that the appellant complained that the FCCA erred in not finding jurisdictional error on the part of the AAT in declining to adjourn the hearing of his review for him to submit further evidence, I accept the Minister’s submission that this ground should be rejected.  The appellant was afforded a reasonable opportunity to give evidence and present arguments.  As the AAT noted at [28] of its reasons for decision, the appellant had nearly two years to obtain any evidence he wished to put forward and was on notice since at least the date of the delegate’s decision that his claim was disbelieved.  The appellant was reminded several times by the AAT (including by letters dated 12 November 2015 and 4 August 2016) about the need for him to promptly provide material or written arguments for the AAT to consider.  Against this background, there is no substance in any claim by the appellant that he was denied procedural fairness when, at the conclusion of the AAT hearing, the AAT declined the appellant’s request that he be given more time to gather and present further evidence. 

26. As to the appellant’s contentions regarding his misunderstanding and confusion concerning the AAT’s role and processes, as noted above, these contentions were considered and rejected by the primary judge at [27] of his Honour’s reasons for judgment.  The appellant has not demonstrated any appealable error in the primary judge’s statement of the relevant legal principle or its application to his particular circumstances.

27. Having regard to the fact that the appellant did not have legal representation and presented his own case on the appeal, I have reviewed the primary judge’s reasons for judgment with a view to seeing whether I could discern any possible appealable error.  I have found none. 

    Conclusion

28. For these reasons, the appeal must be dismissed and the appellant ordered to pay the Minister’s costs, as agreed or assessed. 

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:        28 February 2018