DDJ17 v Minister for Immigration
[2019] FCCA 3292
•14 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDJ17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3292 |
| 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) |
| Cases cited: SZELX v Minister for Immigration & Anor [2007] FMCA 209 |
| Applicant: | DDJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1103 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms L Vasan of Sparke Helmore |
INTERLOCUTORY ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1103 of 2019
| DDJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 April 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 7 November 2019.
The applicant, a citizen of India, arrived in Australia as a minor on a FA-600 (Tourist) visa on 7 April 2016.[1] The applicant travelled to Australia with the ostensible purpose of attending the Darren Lehman Cricket Academy.[2] In support of that application, his father signed a consent form, wrote a letter of support, and provided supporting materials.[3]
[1] Court Book (CB) 89
[2] CB 120 and 169, [13]
[3] CB 2, 22 and 89; Supplementary Court Book (SCB) 1
On 22 November 2016, the applicant was apprehended by compliance officers after he was located working as a kitchenhand in a restaurant in Harris Park, New South Wales.[4] The applicant was interviewed by compliance officers and placed in community detention pursuant to s.189 of the Migration Act 1958 (Cth) (Migration Act).[5]
[4] SCB 2-3 and 7
[5] SCB 2; CB 89
The applicant applied for a protection visa on 9 January 2017.[6] On 20 January 2017, he attended an interview with the delegate.[7]
[6] CB 1-51
[7] CB 2, 22, 89
On 8 March 2017, the delegate refused to grant the applicant the visa.[8]
[8] CB 89-99
On 23 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[9] On 7 April 2017, the Tribunal sent the applicant an invitation to comment on or respond to adverse information (s.424A letter).[10]
[9] CB 100-101
[10] CB 106
Following a hearing on 1 June 2017, on 9 June 2017 the Tribunal affirmed the decision under review.[11] That decision was set aside by orders of this Court made on 19 June 2018.[12]
[11] CB 133-146
[12] CB 147-148
The Tribunal as reconstituted invited the applicant to a hearing on 8 March 2019,[13] which the applicant attended.[14]
[13] CB 154
[14] CB 159
On 4 April 2019, the Tribunal affirmed the decision under review.[15]
[15] CB 167
Applicant’s claims
In the compliance interview conducted on 22 November 2016,[16] the applicant claimed that his family had a large debt as his father had taken out a loan and subsequently left the family. He claimed his mother had borrowed money from her relatives in order to repay the debt, so the applicant had come to Australia in order to earn money to repay the money borrowed from relatives.[17]
[16] SCB 2
[17] SCB 6
In the statement accompanying his protection visa application dated 9 January 2017,[18] the applicant claimed to fear harm because he and his mother were being threatened in connection with money that his father had borrowed. The applicant claimed that his father disappeared in August 2015 after he had borrowed money from the son of a politician in the Indian National Congress Party. The applicant claimed that around December 2015, he was approached on his way to school by a man who said he would kill him if his father did not repay the money and about a week later his mother was threatened by three men who came to their house. The applicant claimed that they moved to stay with another family in Pehowa where his mother received a call on her mobile phone asking for the money. After this, his mother was worried about his safety so arranged for him to travel to Australia. The applicant claimed that he could not go to the police because “the politicians can bribe the police,” and as a consequence the police would not look after him.[19]
[18] CB 2, 43
[19] CB 43-45
At the applicant’s protection visa interview with the delegate on 20 January 2017,[20] the applicant provided further details and made additional claims. The applicant claimed that his father had obtained the loan in order to start a business but had been cheated by his business partner. He claimed that his father had disappeared in August 2015 (not December), and that the creditors had hinted that he would be sold into bondage or for his organs in order to repay the debt. The delegate pointed out that in his compliance interview, the applicant had stated that his mother had already paid off the creditors by borrowing money from relatives. The applicant denied saying this. The delegate also queried how the applicant’s father could have signed a consent form, written a letter of support, and provided other material in support of his tourist visa application in March 2016, when he had already disappeared in August 2015.[21]
[20] CB 91
[21] CB 91
In response to the delegate’s concerns relating to his father’s provision of documents in 2016, the applicant subsequently provided a statutory declaration from his mother in which she stated that she handed money over to a woman she met at a Sikh temple who made all the arrangements for the tourist visa application and she did not know how these documents were obtained.[22]
[22] CB 74-83
In response to the s.424A letter sent by the Tribunal on 7 April 2017, the applicant provided a statutory declaration dated 31 May 2017.[23] In this statutory declaration, the applicant made a new claim that his mother told him she had been attacked around August 2016 when two or three men came to her house and one of them threw a stone at her before the men left because a crowd had gathered.[24] In support of this claim, the applicant subsequently provided a medical certificate dated 6 August 2016, which the applicant claimed demonstrated that his mother had been assaulted.[25]
[23] CB 119
[24] CB 121-122
[25] CB 129
The Tribunal’s decision
The Tribunal found that the applicant’s evidence about his father’s disappearance was vague and, in some aspects, contradictory.[26] The Tribunal noted that the applicant had relied on his mother’s evidence about what happened and claimed he did not know about the events because he was young and could not remember. The Tribunal also recorded that the applicant’s evidence at the hearing contained the following inconsistencies and incongruities:[27]
a)he gave “opposing” evidence about his mother’s current occupation;
b)he suggested that his family was frequently changing houses but also claimed his sister continued to study at the same government school;
c)he changed his evidence on whether his problems began in December 2013 or August 2013;
d)he was able to continue at school during his family’s problems and achieve 70 per cent average marks in January-February 2014; and
e)he said he was sent to Australia to help his mother repay the money but also said that neither his mother nor anybody else in his family were trying to repay it.
[26] CB 174, [47]
[27] CB 174-175, [48]
The Tribunal put to the applicant, pursuant to s.424AA, that at his compliance interview on 22 November 2016, he said that his mother had repaid his father’s debt by borrowing money from her relatives and he had come to Australia to work to help her repay them, which undermined the applicant’s claim that the original creditors continued to seek repayment through coercion and threats.[28] The applicant responded that there was no interpreter at the compliance interview, his own English was poor at the time and that he misunderstood the question.[29] The Tribunal did not accept the applicant’s explanation and was inclined to rely on the applicant’s evidence at his compliance interview, noting that the remainder of his evidence largely adhered to what he was reported to have said.[30]
[28] CB 172-173, [36]
[29] CB 173, [37]
[30] CB 175, [49]
The Tribunal also put to the applicant pursuant to s.424AA that his father had provided a signed letter of consent, a signed consent form, and other material in support of the tourist visa application in March 2016, which contradicted the applicant’s claim that his father had absconded in August 2015.[31] The applicant responded that his mother paid an agent, that he did not know anything about where the documents came from and that in India anyone could obtain anything for money.[32] It also considered previous evidence to the delegate in response to the same concern which included an affidavit of the applicant’s mother stating that she did not know how those documents were obtained, and submissions from the applicant’s representative suggesting that some fraudulent activities had been undertaken by the parties who assisted with the tourist visa application.[33] The Tribunal gave no weight to the appearance of consistency between the evidence from the applicant and his mother that his father had nothing to do with the tourist visa application, noting their evidence was that they did not know what happened.[34]
[31] CB 172, [33]
[32] CB172, [34]
[33] CB 170-171, [21]-[23]
[34] CB 175, [50]
The Tribunal found that the applicant came to Australia to earn money to send back to his family. The Tribunal did not accept that the applicant’s father had absconded and was missing at the time of his earlier visa application. The Tribunal also did not accept that his mother had been left with the pressure to pay creditors who lent to his father and so did not accept that the applicant or his mother had been threatened for money.[35] The Tribunal concluded that there was no real chance of serious harm.[36] In addition, the Tribunal found that the applicant’s claims to fear harm were not for a persecution reason.[37] The Tribunal was therefore not satisfied that the applicant met s.36(2)(a) of the Migration Act.[38]
[35] CB 175, [52]
[36] CB 176, [55]
[37] CB 176, [54]
[38] CB 176, [56]
The Tribunal found that since his refugee claims failed due to a lack of credibility, they also could not succeed under the complementary protection criterion.[39] The Tribunal went on to consider whether the applicant would face harm re-integrating into Indian society after a period of absence in Australia where he sought asylum. The Tribunal concluded that his family might have some economic problems but that these would not amount to significant harm and there was no intention to harm him for seeking asylum in Australia.[40] The Tribunal was not satisfied that the applicant met s.36(2)(aa) of the Migration Act.[41]
[39] CB 177, [66]
[40] CB 177, [67]
[41] CB 177, [69]
The present proceedings
These proceedings began with a show cause application filed on 7 May 2019. The applicant continues to rely upon that application. The grounds in it are:
1.The Administrative Appeals Tribunal made jurisdictional errors by being misdirected in its statutory task. I will provide particulars when I have been properly advised.
2. I will provide more details as I am waiting for my documents to receive proper advice from a lawyer.
The application was supported by a short affidavit filed with it which I received.
I also have before me as evidence the court book filed on 1 July 2019 and a supplementary court book filed on 9 July 2019.
Only the Minister filed written submissions in advance of today’s hearing. I invited oral submissions from the applicant. He told me that he did not know about legal issues because he has no legal training and has not been able to find the assistance of a lawyer. He claimed to have been actively looking although he did mention that he had had to focus on examinations. The applicant is not only a litigant in person but is a young person. With that in mind, I have considered for myself whether any argument of jurisdictional error is available to him.
Last year, I set aside by consent the first Tribunal decision because the Tribunal failed to comply with its obligations under s.424A of the Migration Act, in particular, in relation to information about the applicant’s father’s involvement in the preparation of the visa application that brought the applicant to Australia.[42]
[42] CB 147-148
The present Tribunal dealt with its obligations under s.424AA orally. The Tribunal’s reasons are relevantly set out at [33] and [36].[43] That is the only evidence available of what occurred at the Tribunal hearing. On the basis of that evidence, it appears to me that no viable argument is available to the applicant of any failure by the present Tribunal of compliance with its disclosure obligations. I do note from [42] of the Tribunal’s reasons that the applicant was assisted by his migration advisor at the Tribunal hearing and the advisor sought additional time to submit material. That request was granted, but the Tribunal notes at [44][44] that no further submissions were received.
[43] CB 172-173
[44] CB 174
There is no substance in the grounds of review advanced by the applicant. Those grounds are effectively dealt with in the Minister’s submissions with which I agree.
The first ground is entirely unparticularised. There is no reference to any aspect of the decision under review which might elucidate the manner in which the Tribunal is alleged to have been “misdirected in its statutory task”. The Tribunal’s decision reveals a detailed consideration of the applicant’s claims and evidence and that it correctly identified and applied s.36(2) to its findings. Indeed, the ground of review is so un-particularised as to be meaningless.[45] Such a failure to particularise grounds of review is sufficient basis for the ground to be dismissed.[46]
[45] WZAVW v Minister for Immigration [2016] FCA 760, at [35]
[46] WZATH v Minister for Immigration [2014] FCCA 612 at [60] per Lucev J, upheld in WZATH v Minister for Immigration [2014] FCA 969
As for the second ground, it is patently not a proper “ground” of review. By this ground, the applicant does not purport to identify error in the Tribunal’s decision and instead he merely communicates an intention to obtain legal representation.
The application does not “disclose an error capable of review by this Court in respect of the Tribunal's decision or the conduct of its review”.[47] It does not raise an arguable case.
[47] SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [18] per Emmett FM, as her Honour then was
I conclude that the applicant is unable to demonstrate 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) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant enquired about the process for dealing with a costs order but did not oppose the making of a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 November 2019
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