SZLKP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 239
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
SZLKP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 239
File number(s): SYG 2876 of 2015 Judgment of: JUDGE STREET Date of judgment: 8 November 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) Visa – where the applicant failed to appear before the Court in 2019 and the proceedings were dismissed – application in a case for reinstatement – no satisfactory reason given for the failure to appear – no merit in the substantive application – application for reinstatement dismissed Legislation: Migration Act 1958 (Cth) ss 5AAA, 36(2)(aa), 424A Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing: 8 November 2021 Place: Sydney Solicitor for the applicants: First applicant, in person Solicitor for the first respondent: Ms D Stone, Sparke Helmore ORDERS
SYG 2876 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SZLKP
First Applicant
SZLKV
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
8 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application in a case is dismissed.
2.The first applicant pay the first respondent’s further costs fixed in the amount of $1,200.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
Introduction
This is an application in a case for reinstatement of proceedings that were dismissed on 29 May 2019 for the failure of the two applicants to appear. The application in a case is advanced by the first applicant only. It appears that the second applicant, the wife of the first applicant, has returned to India.
Before the Court
At the commencement of the hearing today, the Court explained to the applicant the nature of the application for reinstatement. The applicant confirmed that he understood the explanation given by the Court.
The applicant’s explanation for his failure to appear is that he was depressed because his wife had gone back to India, and that he was legally unrepresented and did not know what documents to file in support of the application. The applicant’s oral submissions to the Court do not align with his affidavit, which said that he did not attend because he was very sick. No medical evidence has been provided by the applicant in support of being very sick, or in relation to his depression. The Court accepts the first respondent’s submissions, that the explanation for the failure to appear is unsatisfactory.
As to whether there would be any utility in reinstating the proceedings, the applicant orally submitted that the Administrative Appeals Tribunal (“the Tribunal”) had failed to consider the claim he raised in relation to workers compensation in respect of his wife, and threats from the alleged employer who had returned to India, in relation to that workers compensation claim. Contrary to the applicant’s submissions, it is apparent that the Tribunal expressly considered that issue. The applicant’s oral submissions, in substance, invited impermissible merits review.
Before the Tribunal
The applicant is a citizen of India, and his claims were assessed against that country.
The Tribunal’s decision, dated 6 October 2015 in this case, was concerned with whether the applicant met the complementary protection criteria.
The applicants arrived in Australia in March 2007. The applicants unsuccessfully pursued a Protection Visa application in 2007. The applicants lodged a second application for Protection (Class XA) Visas (“the Visas”) on 12 March 2014 on the grounds of complementary protection.
The applicants claimed to fear harm from Muslim gangs, and by reason of the employer of the applicant’s wife having returned to India. A delegate of the first respondent (“the delegate”) found that the applicants failed to meet the criteria for the grant of the Visas on 4 August 2014.
On 1 September 2014, the applicants applied to the Tribunal for review, and were invited to attend a hearing before the Tribunal on 29 September 2015. On that date, the first applicant appeared before the Tribunal to give evidence and present arguments.
The Tribunal identified the background to the review application and set out the relevant law. The Tribunal found that the first applicant was not the subject of a real risk of suffering serious harm because of having witnessed an event at a riot in 2002.
The Tribunal identified the applicant’s claims in relation to having shut his business as a result of problems in relation to his two Muslim brothers. The Tribunal raised with the applicant that he was not the subject of any pursuit or serious harm after the alleged incident. The Tribunal found that the applicant gave unsatisfactory evidence about having moved around after closing his shop.
The Tribunal identified that, if anyone had the intention of harming him, they had ample opportunity to do so and had not done so. The Tribunal found there is not a real risk that the applicant will face significant harm at the hands of his business partners, their associates, other Muslims or anyone else, for reasons arising from his business or relating to his Hindu religion.
The Tribunal made reference to the workers compensation claim and alleged threats from the employer who had returned to India. The Tribunal was not satisfied that the applicant had been subjected to threats as claimed and was not satisfied that there is a real risk the first applicant would face significant harm at the hands of the employer if he were to return to India.
The Tribunal found there is no real risk that the applicant would face significant harm at the hands of Muslim gangs. The Tribunal found that there is no real risk of the applicant suffering significant harm arising from religious or communal violence in his home area.
The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk he will be subject to significant harm. The Tribunal found that the applicants did not satisfy the criteria in s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) and affirmed the decision of the delegate under review.
The Grounds
The Grounds in the amended application, filed on 11 February 2016, are as follows:
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 on respond to that information.
Particular:
Ground 1
1.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.
Ground 2
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.
Ground 3
3.The Tribunal’s decision was unjust and made without taking into account the full gravity of applicants circumstance and consequence of claims. The Tribunal did not consider the applicants who had been under immense and intimidating pressure from Muslim business partner.
Ground 4
4.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(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 their return to India.
Ground 5
5.The Tribunal failed to investigate applicant claim, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 6 October 2015 was effected by actual bias constituting judicial error.
Ground 1
In relation to Ground 1, no information has been identified enlivening any obligation under s 424A of the Act. No arguable case of relevant error is disclosed by Ground 1.
Ground 2
In relation to Ground 2, this appears to invite impermissible merits review. On the face of the Tribunal’s reasons, the Tribunal approached the review in accordance with the statutory obligations and made findings dispositive of the applicant’s claims that were open for the reasons given by the Tribunal. No arguable case of relevant error is disclosed by Ground 2.
Ground 3
Ground 3, again, appears to be an invitation to impermissible merits review. Ground 3 discloses no arguable case of relevant error.
Ground 4
In relation to Ground 4, the Tribunal correctly identified the relevant law. No arguable case of misconstruction of the statutory provisions is apparent on the face of the Tribunal’s reasons. No arguable case of relevant error is made out by Ground 4.
Ground 5
In relation to Ground 5, it was for the applicant to provide sufficient evidence to establish the claims pursuant to s 5AAA of the Act. This is not a case where it is apparent that there was any duty to investigate, as the applicant alleges. No easily ascertainable fact has been identified that was material to the applicant’s claims.
The allegation of bias is unsupported by any identified conduct. On the face of the Tribunal’s reasons, the Tribunal approached the review with an open mind, reasonably capable of persuasion as to the merits. No arguable case of actual bias is apparent. Further, the adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No arguable case of relevant error is disclosed by Ground 5.
Conclusion
Taking into account the unsatisfactory explanation for the failure to appear and the want of merit in the substantive application, there would be no utility in reinstating the proceedings.
Accordingly, the application in a case is dismissed.
25 I certify that the preceding twenty-four (24) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 8 November 2021 and the parties were sent a sealed copy of the Court’s orders.
26
Associate:
Dated: 8 March 2022
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