EXB18 v Minister for Home Affairs

[2018] FCCA 3893

FEDERAL CIRCUIT COURT OF AUSTRALIA

EXB18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3893

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

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 426A

Applicant: EXB18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 982 of 2018

Judgment of: Judge Vasta

Hearing date: 17 December 2018

Date of Last Submission: 17 December 2018

Delivered at: Brisbane

Delivered on: 17 December 2018

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the First  Respondent: Sparke Helmore

ORDERS

1. That pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001, the Application filed 29 September 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 982 of 2018

EXB18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 20 September 2018, the Applicant, EXB18, filed an originating application in this Court.  That application sought the judicial review of a decision of the Administrative Appeals Tribunal (“the AAT”) given on 16 August 2018, which affirmed a previous decision by the delegate of the Minister for Immigration not to grant the Applicant a protection visa. 

2. In short, the Applicant, who is a citizen of India, said in his application that he had come to Australia on 8 July 2009.  He was born on 10 July 1986.  He had been educated to primary and secondary school but he was coming to Australia as a dependent on his wife’s student visa.

3. They had a child whilst they were here on the wife’s student visa.  He said that before he left Australia he had been a farmer in India.  He had borrowed 20 lakh rupees from a moneylender at interest to pay for their expenses.  He said that he had no oral loan agreement and no written agreement but he handed over security documents, some papers that related to the title of his father’s land. 

4. He said that after a little more than two years he repaid 10 lakhs of the principal and interest with the help of his parents.  About a year after, the moneylender said that he still owed 20 lakhs.  He said that his father then made a complaint to local police but they said that without proof of the terms of the loan, the police said that they couldn’t help.

5. The moneylender telephoned the Applicant and threatened to kill him and his family if the father made any further complaints to the police.  The moneylender came to the house on several occasions looking for the Applicant.  The Applicant claims the moneylender wants to sell the land to a third party but can’t sell it without their consent.  The moneylender asked his father to sign in the blank paper but his father refused to sign any paper.  The Applicant says this moneylender is waiting for him in India.  He said that his wife and child have left Australia and are living with his in-laws in India and that he’s very worried about them.

6. He said that he was seeking protection in Australia because he couldn’t safely return to make a living with his wife and child in India.  He said that he’s afraid of the moneylender; his threats and repeat threatening visits at the parent’s home and the telephoning of him in Australia prompted him to seek protection in Australia. 

7. That was the only matter that the Tribunal had before it because the Tribunal had asked the Applicant to attend an interview.  The Applicant didn’t appear at the Tribunal on the day and at the time and place in which he was scheduled to appear.

8. There was no reason provided and there was nothing before the Tribunal to suggest that the person was ill. Pursuant to s. 426A of the Migration Act 1958 (Cth) (“the Act”), the Tribunal decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.

9. The Tribunal had very scant material before it and one could see that there are many questions that would be open on that account given by the Applicant but the Tribunal was unable to ask those questions.  It only had the material of the Applicant before it.

10. Obviously, none of that would show that the Applicant has suffered persecution because of his membership of a particular social group or for membership of race, religion, nationality, political or opinion. It would seem very difficult in those respects to have ever considered the Applicant as meeting the criteria for refugee aspect of the Act.

11. The question is whether he fulfilled the complementary protection criteria, which would mean that the Minister considered that there was good reason to accept that if he were removed to India that he would suffer serious harm.

12. The Tribunal ended up looking at that aspect and said that they could not make such a decision because they didn’t know things such as when did the Applicant loan the money, under what terms, when did he stop repaying, when were the threats happening, where did the threats happen, are they continuing to occur. 

13. Given that the Tribunal had an inability to question the veracity of the claims and given scant detail of it, the Tribunal came to a conclusion that they were not satisfied that he was a person in respect of whom Australia had protection obligations pursuant to s.36(2)(aa).  Therefore, the decision was affirmed. 

14. The grounds of this application were short and I will read them into the record. 

    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 return to India.

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

    3. The Tribunal has failed to investigate the applicant’s claim, specially the grounds of persecution in India.

15. It’s trite to say that those grounds are quite general and they have an absolute lack of particularity.  None of those grounds, in any way, illustrate what the jurisdictional error was and realistically are no more than an attempt to have this Court undertake an impermissible merits review. 

16. It is also trite to say that if an allegation is made, the Tribunal is not obliged to investigate the claims.  It is for the Applicant to put material to show that his claim is correct.  It seemsthat what the Minister has submitted before me, that the Tribunal’s rejection of the application was an inevitable consequence of the Applicant’s non-attendance, is a justifiable submission.

17. The decision of the Tribunal to proceed upon s.426A in the absence of the Applicant is one that does not show unreasonableness. It seems to me that was a decision that was open in all the circumstances, especially when one does take into account the history of the matter; that is, that the Applicant’s student visa was cancelled on 22 October 2011, that the Applicant applied unsuccessfully for two temporary work class, or as they are colloquially known, 457 visas, and also a medical treatment visa. It was after those matters failed that this particular visa application was made.

18. In all of those circumstances, it does not seem to me that there has been shown a jurisdictional error.  The Applicant, who has appeared by telephone today, has asked, or submitted to me in these terms that he requested that I understand his position; that he needed to get a visa to feel safe in Australia and everything that he has said in his application is all true. 

19. Those submissions by the Applicant really illustrate what this application is all about, and that is an attempt to tug at the heartstrings of the Court and to have it conduct an impermissible merits review.

20. It seems to me that the Minister is correct to say that there is no arguable case before this Court.  The Applicant has failed to show cause why it is that the matter should be allowed to go further and I should, therefore, dismiss the application, which I do.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 10 January 2019