Cya18 v Minister for Home Affairs

[2019] FCCA 759

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYA18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 759

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5J, 36, 65

Applicant: CYA18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1592 of 2018

Judgment of: Judge Driver

Hearing date: 27 March 2019

Delivered at: Sydney

Delivered on: 27 March 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Juarez of Minter Ellison

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1592 of 2018

CYA18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 16 May 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The factual background to this matter is conveniently set out in the Minister’s outline of submissions filed on 19 March 2019. 

3. The applicant is a male citizen of India.[1]  He arrived in Australia on 18 July 2014 as the holder of a student visa[2] and, on 28 January 2015, lodged an application for a protection visa.[3]  The applicant's factual claims are accurately stated by the Tribunal at [7][4] of its reasons, as follows:

   The applicant claims that after completing school, he worked as an informal sharebroker and financial advisor. His clients lost huge sums when Indian share prices plummeted in early 2014. They blamed him personally for their losses, and tried to get him to reimburse them. They assaulted him, ransacked the family home and threatened him. Three clients committed suicide, and their families hold the applicant responsible. The applicant fears that his disgruntled clients and their families will pursue and kill him if he returns to India. He also worries about general law and order problems in Ahmedabad.

   [1] Court Book (CB) 96

   [2] CB 60

   [3] CB 1

   [4] CB 107

4. On 7 December 2015, the delegate refused the visa application.[5]  The delegate rejected the applicant's credibility as a witness, found he had provided no evidence of his being a business partner in a share trading business, and found he had provided no evidence of his having traded in the share market.[6]  The delegate did not accept the applicant's claim to have been threatened by the families of persons who allegedly committed suicide after receiving bad investment advice from the applicant.[7] The delegate also found that the applicant's claims were not referable to a s.5J(1)(a) reason.[8] 

   [5] CB 60

   [6] CB 65

   [7] CB 67

   [8] CB 65

5. The applicant sought review of the delegate's decision by application to the Tribunal, received 22 December 2015.[9]  The applicant was invited to, and attended, a hearing before the Tribunal on 15 May 2018,[10] at which dispositive issues were traversed.

   [9] CB 68

   [10] CB 93

6. The Tribunal made its decision on 16 May 2018.[11]  The Tribunal had a range of concerns about the credibility of the applicant's claims and evidence.  It found there was “a marked lack of detail, context and even basic corroborative evidence”, and that the information the applicant provided was limited, repetitive, and improvised.[12]

   [11] CB 106

   [12] At [18]

7. The Tribunal accepted that the applicant had some knowledge of commerce, however it found it had a number of concerns about his claimed role as a share broker and financial adviser, which the Tribunal listed at [25] of its reasons.  These included the applicant's superficial and repetitive evidence about the kind of financial advice he provided, his selection of stocks and his practice, and his description of the business itself and the applicant's father's role, which the Tribunal found lacked detail and supporting evidence.  In light of its concerns as a whole, the Tribunal was not prepared to accept that the applicant earned money as a financial adviser and share broker between 2011 and 2014, either jointly with his father or in his own business.[13]

   [13] At [26]

8. The Tribunal found that it had very significant concerns about the applicant's claims of past harm in India, which it listed at [37] of its reasons.  These included his unpersuasive account as to multiple clients blaming the applicant personally for a supposed share market downturn, and the Tribunal's assessment of the applicant's description of the home invasion, his injuries, the property damage inflicted and his activities prior to his departure for Australia as lacking in detail and supporting evidence.  Having regard to its concerns considered together, the Tribunal did not accept that the applicant was subject to threats and harm by disgruntled investors or family members of ex-clients who had committed suicide, and rejected all of the applicant's associated claims.[14] The Tribunal found the applicant did not satisfy the criteria in s.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[15]

   [14] At [38], and see [43]-[45]

   [15] At [52] and [57]

The present proceedings

1. These proceedings began with a show cause application filed on 6 June 2018.  The applicant continues to rely upon that application.  There are three grounds in it:

   1. The Administrative Appeal Tribunal erred in its decision not considering visa under s.65 of the Migration Act 1958 in essence.

   2.  The Administrative Appeal Tribunal erred in its decision by not giving enough consideration that the applicant's client suffered losses and can harm him.

   Particular:

   The Tribunal has considered all of the applicant's evidence as a whole. It accepts that the applicant has some knowledge of India's large businesses and the share market. However, it does not accept that he set up a share broker and/or financial advising business in 2013; or that he was engaged in such activities earlier, including with his father. It does not accept that he gave financial advice and/or acted as a share broker for some 30 to 40 clients.

   3.  The Administrative Appeals Tribunal not applied protection criteria as stipulated in the Act and come to conclusion that the Applicant not satisfied that he has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to India.

   (errors in original)

2. The application was accompanied by a short affidavit, which I received as a submission.  In the affidavit, the applicant asserts a belief that the Tribunal made legal and factual errors in his case.  The only evidence I have before me is the court book filed on 26 July 2018. 

3. I invited oral submissions from the applicant this morning.  He referred to his problems in India, which form the basis for his claim for protection.  Despite prompting, however, he was not able to point to any legal issue. 

4. The grounds in the application are generally expressed.  The assertion in the applicant’s affidavit of legal and factual errors is not particularised, neither was the applicant in his oral submissions able to point to any asserted legal or factual errors by the Tribunal. 

5. The Minister’s submissions deal adequately with the grounds of review advanced.  I agree with those submissions. 

6. Ground 1 of the application alleges that the Tribunal erred in its decision not to grant the applicant a visa pursuant to s.65 of the Migration Act.

7. Absent particulars, this ground is incapable of a meaningful analysis and appears to reflect the applicant's disagreement with the Tribunal's ultimate decision at a level of fact. 

8. Ground 2 alleges that the Tribunal erred because it did not give enough consideration to the propositions that the applicant's clients suffered losses, and can harm the applicant.  The particulars to this ground refer in part to [43][16] of the Tribunal's decision:

   The Tribunal has considered all of the applicant’s evidence as a whole. It accepts that the applicant has some knowledge of India’s large businesses and the share market. However, it does not accept that he set up a share broker and/or financial advising business in 2013; or that he was engaged in such activities earlier, including with his father. It does not accept that he gave financial advice and/or acted as a share broker for some 30 to 40 clients, of modest means, some of whom invested large sums. It also does not accept that all of these people lost significant portions of their money – whether through a share market drop (as claimed) or through poor investment advice, or in any other circumstances; that they blamed the applicant personally; that three of these people committed suicide, and their families sheeted the blame home to the applicant; or that any other investors had an adverse interest in the applicant.

   [16] CB 113

9. The Tribunal comprehensively rejected the entirety of the applicant's factual claims, including those identified by this ground of review.  Its factual findings were reasonably open to it on the evidence, and for the reasons given.

10. Ground 3 alleges that the Tribunal did not apply the criteria for the grant of the visa as prescribed by the Migration Act, and found that the applicant did not have a well-founded fear of persecution for a reason specified in s.5J(1) of the Migration Act.

11. The Tribunal correctly identified and applied the relevant law.  In so far as this ground of review is intended to relate to the finding at [49], which was to the effect that although prima facie the applicant's claims did not relate to a s.5J(1) Refugees Convention reason, the Tribunal did not need to determine this in light of its conclusion that the applicant faced no real chance of serious harm, no argument of jurisdictional error arises from this finding.

12. The application fails to raise any arguable case of jurisdictional error and, further, a review of the entirety of the material before this Court discloses no available argument of jurisdictional error enjoying any reasonable prospect of success.

Conclusion

1. I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  The applicant did not wish to be heard on costs. 

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

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

Date:     28 March 2019