WZAVV v Minister for Immigration

[2015] FCCA 2588

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAVV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2588

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – procedural fairness – whether the applicant had a fair hearing – whether the Tribunal’s findings were open on the material – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa), 425, 476

Applicant: WZAVV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 37 of 2015

Judgment of: Judge Street

Hearing date: 18 September 2015

Date of Last Submission: 18 September 2015

Delivered at: Perth

Delivered on: 18 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms E Tattersall

Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 37 of 2015

WZAVV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 8 January 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of India, and arrived in Australia on 9 October 2008, holding a student visa. The applicant applied for protection on 18 March 2013. The applicant claimed to fear harm on the basis of his religion and that he would suffer harm from members of a specific group, which he identified, or because he belonged to another group, which he identified, and on the basis that he opposed that group.

2. The applicant claimed that he was a recognised person by that specified group and that his life is, and has always been, in threat after particular events, and that his family had been in constant fear of being attacked.  The applicant claimed he had been attacked a couple of times in the company of a particular person and that his finger on his left hand was split with a machete and death threats have been made against him.  The applicant claimed the authorities in India were unable to protect him as they were aware of faction operating in sporadic violence and chose not to intervene. 

3. On 6 May 2014, the delegate refused to grant the applicant a protection visa and found that the applicant had access to effective state protection. 

4. The applicant was invited to attend a hearing, consistent with the statutory regime, and that on 3 December 2014, the applicant attended before the Tribunal to give evidence and present arguments, and was assisted by an interpreter. The Tribunal found that the applicant generally was not a credible or truthful witness:

   79. Generally, I find that the applicant was not a credible or truthful witness. 1 accept that he had known [X] for a number of years and like thousands of other Sikh men, was involved in protests against the DSS in 2007/08. I accept that he may have been injured during those protests

5. The Tribunal relevantly found:

   70. I have had regard to the fact that the applicant did not make a protection visa application until after his divorce in 2011 and after he had been unlawful for nearly two years. Given the fact that he was aware of the ease in getting a student visa from other Indian nationals who had come to Australia via this route, I do not accept that he was unaware of the existence of protection visas for the five years he spent in Australia prior to lodging his visa application. I draw an adverse inference from that fact that he did not lodge a protection visa application until he had run out of other options and I note that the stated triggers for protection occurred prior to his departure from India in 2008.

   71. Despite his evidence that he left India on the student visa because he was afraid of further attack, there was no mention during the hearing that his uncle and other relatives arranged for him to leave India in this way and for this reason. This was only suggested when a translation of the statement made by the uncle was provided to the Tribunal.

   …

   73. None of the translated statements or the newspaper articles indicates that the applicant played any sort of leadership role with respect to [X] and his followers or in relation to the protests themselves.

   74. Evidence has been presented that the applicant has been known to [X] for a number of years and I accept that this is the case. Nevertheless, all documentary evidence submitted by the applicant supports a conclusion that the applicant was one of the many followers of [X] and held no position of authority.

   …

   77. During the hearing, the applicant confirmed that the only reason he feared persecution was from the DSS leader or his followers. While he stated that police could not provide adequate protection for him, he did not indicate that either police or government had harassed him as suggested by the statement of the politician dating from 2011.

   78. 1 have had regard to the concluding statements made by the writers of all four supporting documents provided, which assert that the applicant is afraid to return to India for the reasons given and should be given permanent residency in Australia. The inclusion of such statements in supporting documents has led me to question the reasons for the provision of the documents and to question the self-serving nature of those documents. Due to a number of inconsistencies contained therein, the untested nature of this evidence and the concerns I have about those documents, I have given them little weight.

6. The Tribunal found that the applicant’s claim that he would be singled out and targeted to be implausible and did not accept that he and his family member had received threats by the relevant bodies or the local or state government in relation to his involvement in protests or that the applicant was known to the relevant bodies or would be targeted upon return.

7. It was in these circumstances the Tribunal found the applicant was not a person in respect of whom Australia had a protection obligation, and the criteria under s.36(2)(a) and 36(2)(aa) was not made out. The grounds of the application are as follows:

   1. I applied for grant of Protection Visa (Class XA) on 18 March 2013 that was refused by Department of Immigration and Border Protection on 11 March 2014.

   2. I lodged a valid appeal on 19 May 2014 to Refugee Review Tribunal (RRT).

   3. I was invited to attend a hearing at Refugee Review Tribunal (RRT) on 3 December 2014. During that interview, I requested the Member for further time to provide more evidence as the

   matter is of my safety and the evidence was to be obtained from India. It was difficult to get evidence over holiday season and I needed more time. Instead of giving me an opportunity to defend the Member refused my application appeal on 6^th January 2015.

   4. Unfair & unjust natural justice decision.

   5. Threat to my life if I am sent back to my country and appeal is rejected.

   6. Need protection from Australian Government.

8. Nothing was said by the applicant, having been invited to do so, in answer to the submissions of the first respondent or in further support of the application for relief.  This is case where the Court made orders on 9 April 2015 providing the applicant with an opportunity to file an amended application and serve further evidence and to put on submissions, and no such documents were filed.  Grounds 1 and 2 fail to identify any content that could constitute a jurisdictional error. 

9. In relation to ground 3, whilst there was a hearing held on 3 December 2014, there was no request for further time to provide more evidence. 

10. Further the applicant was in fact provided with the opportunity to provide further evidence, which opportunity was taken up, in relation to the material identified at pp.130, 136 and 145 of the Court book.  The applicant did not advise the Tribunal of any alleged difficulty in getting evidence due to the holiday period or request an extension of time to provide further evidence. In fact when the applicant provided further evidence after the hearing and the applicant noted that no other translations would be provided, see Court book 145. 

11. In these circumstances, and in the absence of any requests for an extension of time, there was nothing unreasonable in the Tribunal making its decision on 6 January 2015.  Accordingly, no jurisdictional error is identified by ground 3. 

12. In relation to ground 4, the generalised assertions of an unfair or unjust decision or a denial of natural justice are wholly un-particularised and accordingly fail to identify any jurisdictional error. I accept the first respondent’s submission that the Tribunal complied with its obligations as prescribed under Part 5, Division 5 of the Act and complied with the obligations under s.425 and that the applicant had a genuine hearing.

13. Further, I accept that the adverse findings by the Tribunal were open on the material before the Tribunal.  No jurisdictional error is made out by ground 4.  

14. Grounds 5 and 6 do not identify anything that could constitute a jurisdictional error.  The application fails to identify any jurisdictional error.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 23 September 2015