MZAGS v Minister for Immigration

[2015] FCCA 3512

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAGS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3512

Catchwords:
MIGRATION – Application for judicial review of decision – Protection (Class XA) visa application – application dismissed – no matter of principle.

Legislation:

Migration Act 1958 (Cth).

Applicant: MZAGS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1269 of 2014

Judgment of: Judge Riethmuller

Hearing date: 13 November 2015

Date of Last Submission: 13 November 2015

Delivered at: Melbourne

Delivered on: 13 November 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Mr Day

Solicitors for the First Respondent: DLA Piper Australia

Counsel for the Second Respondent: No appearance

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal.

2. The application filed 26 June 2014 be dismissed.

3. The Applicant pay the Respondent’s costs fixed at $2538.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1269 of 2014

MZAGS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

1. This is an application for judicial review of the decision of the Refugee Review Tribunal made on 2 June 2014. To refuse an application for a Protection (Class XA) visa.

2. The applicant is an Indian male who came to Australia in 2008 as the holder of a Class TU subclass 573 (Student) visa (‘the student visa’) and has remained in Australia since then.  The applicant’s student visa expired in September of 2010 but he continued studying until 2011, apparently on bridging visas. It was not until two years later on 21 May 2013 that he applied for a protection visa. 

3. The substance of his case was that a criminal gang had taken his money and sent him to Spain for him to find his way back to India and that therefore he was fearful of this criminal gang harming him and/or his family. 

4. The Tribunal summarises what the applicant says in this regard at paragraph 21 saying:

   21. When the Tribunal questioned the applicant about his travel to Spain, the claim emerged that Spain was not his initial destination. He said that the agents referred to in his father’s statement deceived him and his father and that, instead of arriving in Spain, he found himself in Bamako, in Mali, with a number of other young men, including some from Pakistan and Bangladesh. The men were moved around to other places. The applicant went to Algeria and finally travelled by foot to Morocco. He finally arrived in a refugee camp in Ceuta where he stayed for six months. He explained that that was what he meant by saying that he went to Spain. He said that a number of Indians and other people were sent back to their countries of origin by the Spanish government. The applicant did not work or study during his time in Africa and Spain. Some local people in Africa tried to rob and kill the young men. In Morocco 40 or 50 of the men were put in a small boat bound for Spain. The skipper was incompetent and the boat nearly sank. Police saved most of them but some of them drowned.

5. The tribunal did not accept the applicant’s evidence and therefore refused to grant a protection visa.  The tribunal was dissatisfied with the quality of the evidence given.  It found that there had been no approaches by the people involved to the applicant or his family since he returned to India in 2007 and therefore it seemed unlikely that he was at real risk of harm and that the genuineness of his application was questionable as a result of his delay in applying for a protection visa. 

6. The applicant raises seven grounds of review in his application. 

Grounds 1, 2, 3 and 4

1. The first ground is that he is not satisfied with the tribunal decision and the third ground is that he is not sure the tribunal reviewed his case properly.  These two grounds are not proper grounds for review but simply express his dissatisfaction with the outcome. 

2. The second ground alleges that the tribunal gave the result without any legal grounds.  However, there does not appear to be any dispute as to the law that the tribunal applied. 

3. The fourth ground sets out that the applicant gave the Tribunal documents which supported his application.  The applicant does not allege that there are any documents missing from the court book nor does he say there are any important documents that the tribunal has not mentioned in their decision. I therefore find that this ground is not made out.

Ground 5

1. In ground 5, the applicant complains about the tribunal’s reliance upon delay and the inferences that they drew from there being no threats or attacks since 2007.  Had the tribunal drawn an adverse inference from his delay in applying for a protection visa at a time when he already had prospects of an alternative visa he may have had an arguable case.  However, in this case, there is a substantial period of delay between when he had a valid visa and when he applied for a protection visa.

2. It is open to the tribunal to draw an adverse inference in circumstances where a person does not have a valid visa but delays in applying for a protection visa. In the context of this case I am satisfied that it was open to the tribunal to draw the adverse inference.  With respect to the applicant assertion that the tribunal did not place proper weight upon the lack of threats in India, I note that the tribunal, it is reasons, considered the applicant’s reference to having stayed in a different city in India.

3. To the extent that this ground assumes that the tribunal considered the delay to be between 2007 and the time of the protection visa application, it seems to me that that is not a reasonable reading of the tribunal’s decision.  In my view, on a fair reading of the tribunal decision, the tribunal focused upon the period between when the applicant no longer had a visa and when he applied for a protection visa. I therefore find that the applicant has not established this ground for review. 

Ground 6

1. Ground 6 disputes the tribunal’s findings with respect to where the applicant was living in India after he had returned from Spain.  The tribunal dealt with this at paragraph 29 where the tribunal said:

   29. Neither the applicant, nor, to his knowledge, his father ever heard from the agents again. He came to Australia nearly a year after the episode in which he was attacked. During that year he was living in another city – Chandigarh. He stayed in a hotel there. Asked about the apparent conflict between that statement and other evidence about his address, the applicant said that his address remained the same although he went to another city. He confirmed that his father was at home the whole time but that there was no further contact from the agents.

2. The applicant and respondent both say that the statement and other evidence referred to by the tribunal in that paragraph refers to oral evidence.  There is no transcript of the tribunal hearing that has been placed before me.  In the circumstances, the applicant has not established that the tribunal erred in their recounting of the evidence at paragraph 29.

3. In any event, the applicant’s father remained at the same address and there was no evidence of threats or attacks upon his father or contact with his father after his return to India.  In this regard, the tribunal appears to have relied upon the statement of his father.  The tribunal read that statement as going no further than the father recounting what the applicant had said to him.  The relevant paragraph of the statement is as follows:

   2. That when my son came back in the year 2007 from Spain the above stated agents scuffle with my son namely Sukhwinder Singh and give him minor injuries and threated my son to kill him and will not be spared at all. The said agent also threatened that we will not spare your father and family also.

4. The applicant’s reading of that paragraph differs to that of the tribunal.  It appears to me that the tribunal’s reading of that paragraph is a fair reading of the meaning of the paragraph. The tribunal said:

   60. When the applicant put forward material in support of the application – not to the Department but to the Tribunal – that consisted of his father’s statement and affidavit. The applicant’s father merely stated that the applicant went from India to Spain in 2005 and returned to India in 2007. He said nothing about agents deceiving the applicant with the result that the applicant first arrived in another place altogether. He made no mention of the applicant being in any country in Africa or Ceuta or a refugee camp in Ceuta. He made no mention of what might have motivated the agents to harm the applicant or threaten him or his family with harm.

5. I am not persuaded that this ground has been made out. 

Ground 7

1. In this ground, the applicant complains that the tribunal did not accept that agents had harmed him and that he continues to be at risk of harm if he were to return to India.  There does not appear to be any specific evidence of a particular incident that occurred after his return to India.  This weakness in the applicant’s evidence was highlighted in the delegate’s decision.  The delegate said:

   Overall, the applicant’s claims of harm and threats are vague and have not been substantiated.  His claims lack substantial detail against which the credibility can be tested. 

   A decision‑maker is not required to make the applicant’s case for him or her.  Nor is a decision‑maker required to accept uncritically any and all the allegations made by an applicant. 

2. It does not appear that the detail of the applicant’s case improved significantly by the time that the tribunal dealt with the matter.  However the applicant was on notice about the quality of his evidence. In the circumstances, I am not persuaded that the tribunal erred in its findings of fact, nor that it was not open to the tribunal to make the findings of fact that it did.  I therefore refuse this ground for review. 

Conclusion

1. As the applicant has not established a ground for review, I must dismiss the application. 

   [further argument ensued]

2. In this matter the Minister has been entirely successful. Costs ordinarily follow the event.  The applicant says that he does not have the money to pay costs. It is not a reason to refuse to order costs to conclude that a person does not have the money to pay them.  The amount sought in costs is reasonable.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 12 January 2016