NBDV v Minister for Immigration

[2016] FCCA 69

FEDERAL CIRCUIT COURT OF AUSTRALIA

NBDV v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 69

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to put adverse information to the applicant – whether the Tribunal applied the correct test – whether the Tribunal imposed an unreasonable onus on the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(a), 36(2)(aa), 476

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: NBDV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1939 of 2015

Judgment of: Judge Street

Hearing date: 18 January 2016

Date of Last Submission: 18 January 2016

Delivered at: Sydney

Delivered on: 18 January 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms R Krishnan
Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3368.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1939 of 2015

NBDV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under section 476 of the Migration Act 1958 (Cth) in relation to a decision of the Tribunal made on 17 June 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant arrived in Australia on 30 November 2000 and made his first application for protection on 10 July 2001.  After that application was refused, the applicant made a further application for protection on 3 October 2012, consistent with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, on complementary protection grounds.

3. The applicant is a Bihari Sikh from a particular area in Bihar, India.  The applicant alleged he left India due to terrible experiences at the hands of Hindu fundamentalists.  The applicant referred to an attack at the Golden Temple in Amritsar which he initially asserted occurred in 1994 and he later corrected to having occurred in 1984.  The applicant contended that he left India due to the human right abuses towards the Sikh community and that he had been involved in fighting for human rights for the benefit of Sikhs in Bihar. 

4. The applicant contended that he had become a Sikh nationalist in order to fight for the rights of Sikhs and that in 1987 he had been arrested and alleged he was illegally detained, interrogated and tortured.  The Tribunal accepted that the applicant was interrogated and detained in 1987 for four days in relation to inquiries regarding the provision of accommodation to persons who were later found to be terrorists.  The Tribunal found that the applicant was not of any continuing interest to authorities after 1987 and did not accept that he had been interrogated thereafter or that he was of adverse interest to police or Indian authorities when he left India legally on his own passport.

5. On 13 August 2015 orders were made initially fixing the matter for hearing in December and providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents have been filed.  Prior to the intended hearing date an application for an adjournment was made and the matter was stood over to today’s date for hearing.  On 13 January 2016 the applicant foreshadowed making an application for an adjournment on the grounds of his medical condition.  On 14 January 2016 the Court conveyed by email to the applicant that the matter remained fixed for hearing today and that the medical certificate was not considered sufficient reasons for an adjournment.  No application for an adjournment was advanced or pursued today and no other medical evidence was tendered. 

6. The grounds of the application are as follows:

   1. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

   2. The Tribunal applied the wrong test:

   Particulars:

   a) The Tribunal left out individual elements of the applicant's claims and tested weather they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so considered amounted to persecution.

   b) By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing to high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt.

7. In relation to the first ground, this was a case where the Tribunal made adverse findings in relation to the applicant’s claims. There was no information that the Tribunal took into account that enlivened any obligation under s.424A of the Migration Act 1958.  Ground 1 fails to make out any jurisdictional error.

8. In relation to ground 2, the assertion of the Tribunal applying an erroneous test is without substance. In respect of particular 2(a), the Tribunal was concerned with complementary protection under s.36(2)(aa), not persecution in relation to s.36(2)(a). Even if particular 2(a) were to be read as referring to whether there was a real risk the applicant will suffer significant harm under s.36(2)(aa), it is clear that the Tribunal took into account the whole of the applicant’s claims and that particular 2(a) fails to make out any jurisdictional error.

9. In relation to particular 2(b), there is no evidence that the Tribunal required the applicant to obtain independent evidence or that the Tribunal imposed an onus or high onus upon the applicant.  Particular 2(b) fails to make out any jurisdictional error.

10. At the commencement of the hearing the applicant was invited to put submissions either in answer to the submissions of the first respondent or in support of his application.  The applicant suggested that the Tribunal failed to properly consider the whole of his claims.  That proposition is contrary to the detailed reasoning of the Tribunal.  To the extent that the applicant suggested that the Tribunal failed to take into account his medical condition, it is clear from the Tribunal’s reasons that the applicant obtained a postponement of the initial hearing date and that the applicant then appeared via video link on the adjourned hearing date before the Tribunal on 12 June 2015 to give evidence and present arguments and that the hearing was also one in which the applicant was assisted by an interpreter and represented by his registered migration agent. 

11. The Tribunal identified the recent gall bladder operation that the applicant had undergone and considered whether or not that would affect his memory or his ability to participate in the hearing.  The Tribunal found that it was satisfied the applicant was able to fully participate in the hearing and was not satisfied that his ability to give evidence and present arguments was affected by the operation that he underwent in March of 2015.  Nor did the Tribunal accept that the applicant’s memory was responsible for the problematic aspects of his evidence. I find the applicant had a genuine hearing.

12. The applicant also suggested from the bar table that he needed more time, which was not provided by the Tribunal.  No request for an adjournment is identified in the Tribunal’s reasons or on any material adduced before the Court.  Following the hearing the applicant’s representative provided further submissions to the Tribunal and no request for an adjournment was made in that further material provided dated 12 June 2015 and referred to in the Tribunal’s reasons.

13. Nothing said by the applicant from the bar table identified any basis upon which there could be said to be a jurisdictional error.  The application fails to make out any jurisdictional error.  The application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 21 January 2016