FEDERAL COURT OF AUSTRALIA

AMV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 180

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The appellant do pay the first respondent's costs of the appeal fixed in the sum of $3,500.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant overstayed his student visa. He was taken into immigration detention after a routine traffic stop in September 2018. Some seven weeks after being in detention he made application for a protection visa. His claim for protection is based upon an alleged concern that there is a serious risk to his life if he was returned to India because he says he has borrowed money from gangsters in India to meet gambling debts incurred in Australia. He says that he borrowed a total of $20,000 from three different people in August and September 2016 and he has not repaid the loans.

2    The appellant's claims were not accepted by the Minister's delegate or by the Administrative Appeals Tribunal on review. An application to review the Tribunal's decision was dismissed by the Federal Circuit Court. The appellant now brings an appeal.

3    The appellant is not legally represented. He appeared on his own behalf before the primary judge and also does so in this Court. His grounds of review before the primary judge were expressed in the most general terms and did not particularise any jurisdictional error. Nevertheless, the primary judge dealt with each ground and considered whether there was a basis for review raised by the grounds: AMV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2015.

4    The grounds of appeal do not identify any alleged error by the primary judge. Instead they express unparticularised complaints about the decisions made by the Tribunal and the Minister. They allege in the most general terms that irrelevant considerations were taken into account, there was an error of law, relevant considerations were not taken into account, there was a failure to properly consider Australia's non-refoulement obligations, no weight was given to the strength, nature and duration of the appellant's ties to Australia, the decision was completely biased because it gave no weight to the significant harm the appellant would face if sent back to India, his removal could not be justified where there were substantial grounds for believing that there was a real risk of harm, the risk of harm was not considered and the appellant seriously believed there was a real risk of significant harm if he was returned to India, the statutory tests in s 36 of the Migration Act 1958 (Cth) had been misapplied and misconstrued, there was a failure to consider each of the integers of the appellant's claim, the decision was made in breach of the United Nations International Covenant on Civil and Personal Rights and there was insufficient or no evidence to support the findings made.

5    I note that most of the grounds (save for the complaint that there was insufficient evidence or no evidence to support the decision made by the Tribunal) fail to reflect the nature of the decision made by the Tribunal. At the hearing, the appellant made oral submissions to the effect that he had proved his claims about the loans and the harm he would face if returned to India. Therefore, I treat the appeal grounds as complaints that the primary judge was in error in failing to find jurisdictional error by reason of the manner of the Tribunal's fact-finding. The proper approach in considering complaints about fact-finding on review for jurisdictional error was summarised in Vo v Minister for Home Affairs [2019] FCAFC 108 at [42]-[44] (Derrington, Banks-Smith and Colvin JJ). The fact-finding task is entrusted to the Minister. It was not for the primary judge to determine whether he agreed with those findings. Provided they were in the bounds of legal reasonableness, were logically reasoned, addressed the nature of the issues raised and were based on material before the Tribunal, not assumption, then there is no jurisdictional error.

6    The appellant's claim failed because the Tribunal concluded that the appellant did not borrow money from gangsters in 2016, he has not received serious threats and his family had not been harassed by gangsters in India (para 44). The Tribunal addressed in detail the nature of the claim made and it failed because the appellant's account was not believed.

7    The Tribunal's reasons to support its factual findings were expressed in considerable detail. The reasons included the following:

(1)    the appellant's account was vague and unconvincing because, amongst other things, he claimed to have become associated with the people who loaned him the money when he ran for president of a student union at their behest to advance their political interest but he was unable to provide details of what he did as president and his answers did not indicate any political awareness of how he might assist in advancing a political agenda (para 36);

(2)    there was no evidence of any paperwork and it was highly unlikely that the sums would have been advanced without any paperwork or any type of security and he gave inconsistent explanations as to why there was no paperwork (paras 37-38);

(3)    it seemed most unlikely that three individuals would make a total of five loans over a two month period in 2016 without any documentation or security on the basis of the appellant's good reputation and the fact that he was studying overseas (being the claim made by the appellant) when their dealings were from the appellant's college days in 2009 to 2012 (para 38);

(4)    the appellant had given inconsistent accounts of the amount borrowed (para 39);

(5)    if the appellant's account was correct then it could be expected that the gangsters would be putting extreme pressure on the appellant's mother and other family members in India to establish contact with the appellant and secure payment, but his evidence was that his mother was under a bit of pressure and the last contact with his mother by them was five or six months ago (para 40);

(6)    the appellant's explanation that his family was not being harassed by the gangsters because they were waiting for him to return from India was a 'highly unlikely scenario' (para 40);

(7)    if indeed the appellant was fearful for his safety from 2016 he could be expected to have been motivated to explore options to stay in Australia well before he did so in September 2018 after he was placed in immigration detention (para 41);

(8)    the appellant's explanations as to why he had not sought protection since 2016 (which were set out by the Tribunal) were unconvincing (paras 41- 42); and

(9)    when the appellant was detained in September 2018 he did not mention his concerns for his safety from gangsters until nearly seven weeks later when he applied for a protection visa (para 43).

8    In the above circumstances, no reviewable error has been demonstrated in the approach to the fact-finding task undertaken by the Tribunal. There is evidence and reasoning to support the findings. No aspect of the appellant's claims has been shown to be overlooked. They could not be characterised as legally unreasonable. The reasoning does not involve consideration of irrelevant matters. The appellant was afforded a hearing at which he gave evidence and his account has been considered by the Tribunal. There was no error of law as to the interpretation of the relevant statutory provisions because the decision turned upon the factual findings. The Tribunal was required to give effect to the Migration Act not the International Covenant on Civil and Personal Rights and, in any event, there is no respect in which it has been demonstrated that the Covenant was breached. The claim of bias is without any foundation. Bias is not demonstrated by mere disagreement with the decision.

9    In the course of the hearing, the appellant renewed his application for an adjournment. He said that he wanted to seek legal advice. He said that he had been in contact with a lawyer but he had been told that the lawyer could not read the papers unless there was an adjournment. On 7 February 2020, I dismissed an application for an adjournment: AMV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 99. I am not persuaded that there has been any material change in the position since that decision. Further, I have now considered the merits of the appeal and for reasons I have given, have formed the view that there is no evident merit in the appeal. Therefore, it has not been shown that any purpose would be served by an adjournment.

10    Therefore, the appellant's appeal must be dismissed with costs.

11    The Minister sought an order that the costs of the appeal be fixed in the amount of $3,500. I am satisfied that it is appropriate to fix costs in that amount which includes the costs of the earlier unsuccessful application for an adjournment.

Associate:

Dated:    24 February 2020