CYA18 v Minister For Home Affairs

1. Leave to appeal be granted.
2. The draft notice of appeal annexed to the appellant's affidavit of 8 April 2019 stand as the notice of appeal.
3. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Revised from transcript) LEE J: 1 Before the Court is an application for leave to appeal from a judgment of the Federal Circuit Court delivered in March 2019. The Federal Circuit Court ordered that the applicant's application for judicial review of the decision of the second respondent (Tribunal) be dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). The Tribunal had affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa. 2 The applicant is self-represented. The decision below was an interlocutory decision and, hence, no appeal is able to be brought except with leave. 3 The Minister initially submitted that the application for leave to appeal should be dismissed on the basis that the proposed grounds of appeal do not identify any error in the reasons of the primary judge. Despite this, at the commencement of the hearing today, I indicated to the parties that I considered the best course would be to grant leave to appeal and deal with the matter on the merits. No prejudice of any substance could be identified in adopting this course and accordingly I made an order that the draft notice of appeal which had been annexed to an affidavit filed by the applicant (whom I will now call "the appellant") stand as the notice of appeal. 4 The background to the application before the Federal Circuit Court was set out by the primary judge at [3]-[8]. It has not been suggested that this summary was in any way inaccurate, including as to its summary of the Tribunal's reasoning processes. That background is as follows: The applicant is a male citizen of India. He arrived in Australia on 18 July 2014 as the holder of a student visa and, on 28 January 2015, lodged an application for a protection visa. The applicant's factual claims are accurately stated by the Tribunal at [7] of its reasons, as follows: The applicant claims that after completing school, he worked as an informal sharebroker and financial advisor. His clients lost huge sums when Indian share prices plummeted in early 2014. They blamed him personally for their losses, and tried to get him to reimburse them. They assaulted him, ransacked the family home and threatened him. Three clients committed suicide, and their families hold the applicant responsible. The applicant fears that his disgruntled clients and their families will pursue and kill him if he returns to India. He also worries about general law and order problems in Ahmedabad. On 7 December 2015, the delegate refused the visa application. The delegate rejected the applicant's credibility as a witness, found he had provided no evidence of his being a business partner in a share trading business, and found he had provided no evidence of his having traded in the share market. The delegate did not accept the applicant's claim to have been threatened by the families of persons who allegedly committed suicide after receiving bad investment advice from the applicant. The delegate also found that the applicant's claims were not referable to a s.5J(1)(a) reason. The applicant sought review of the delegate's decision by application to the Tribunal, received 22 December 2015. The applicant was invited to, and attended, a hearing before the Tribunal on 15 May 2018, at which dispositive issues were traversed. The Tribunal made its decision on 16 May 2018. The Tribunal had a range of concerns about the credibility of the applicant's claims and evidence. It found there was "a marked lack of detail, context and even basic corroborative evidence", and that the information the applicant provided was limited, repetitive, and improvised. The Tribunal accepted that the applicant had some knowledge of commerce, however it found it had a number of concerns about his claimed role as a share broker and financial adviser, which the Tribunal listed at [25] of its reasons. These included the applicant's superficial and repetitive evidence about the kind of financial advice he provided, his selection of stocks and his practice, and his description of the business itself and the applicant's father's role, which the Tribunal found lacked detail and supporting evidence. In light of its concerns as a whole, the Tribunal was not prepared to accept that the applicant earned money as a financial adviser and share broker between 2011 and 2014, either jointly with his father or in his own business. The Tribunal found that it had very significant concerns about the applicant's claims of past harm in India, which it listed at [37] of its reasons. These included his unpersuasive account as to multiple clients blaming the applicant personally for a supposed share market downturn, and the Tribunal's assessment of the applicant's description of the home invasion, his injuries, the property damage inflicted and his activities prior to his departure for Australia as lacking in detail and supporting evidence. Having regard to its concerns considered together, the Tribunal did not accept that the applicant was subject to threats and harm by disgruntled investors or family members of ex-clients who had committed suicide, and rejected all of the applicant's associated claims. The Tribunal found the applicant did not satisfy the criteria in s.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). (citations omitted) 5 There were three grounds advanced before the primary judge. The grounds below were generally expressed and the primary judge referred to the fact that the appellant in his oral submissions below did not point to any specific legal or factual error by the Tribunal. The way in which the primary judge dealt with the matter is evident from [14]-[20] of the primary judge's reasons: Ground 1 of the application alleges that the Tribunal erred in its decision not to grant the applicant a visa pursuant to s.65 of the Migration Act. Absent particulars, this ground is incapable of a meaningful analysis and appears to reflect the applicant's disagreement with the Tribunal's ultimate decision at a level of fact. Ground 2 alleges that the Tribunal erred because it did not give enough consideration to the propositions that the applicant's clients suffered losses, and can harm the applicant. The particulars to this ground refer in part to [43] of the Tribunal's decision: The Tribunal has considered all of the applicant's evidence as a whole. It accepts that the applicant has some knowledge of India's large businesses and the share market. However, it does not accept that he set up a share broker and/or financial advising business in 2013; or that he was engaged in such activities earlier, including with his father. It does not accept that he gave financial advice and/or acted as a share broker for some 30 to 40 clients, of modest means, some of whom invested large sums. It also does not accept that all of these people lost significant portions of their money - whether through a share market drop (as claimed) or through poor investment advice, or in any other circumstances; that they blamed the applicant personally; that three of these people committed suicide, and their families sheeted the blame home to the applicant; or that any other investors had an adverse interest in the applicant. The Tribunal comprehensively rejected the entirety of the applicant's factual claims, including those identified by this ground of review. Its factual findings were reasonably open to it on the evidence, and for the reasons given. Ground 3 alleges that the Tribunal did not apply the criteria for the grant of the visa as prescribed by the Migration Act, and found that the applicant did not have a well-founded fear of persecution for a reason specified in s.5J(1) of the Migration Act. The Tribunal correctly identified and applied the relevant law. In so far as this ground of review is intended to relate to the finding at [49], which was to the effect that although prima facie the applicant's claims did not relate to a s.5J(1) Refugees Convention reason, the Tribunal did not need to determine this in light of its conclusion that the applicant faced no real chance of serious harm, no argument of jurisdictional error arises from this finding. The application fails to raise any arguable case of jurisdictional error and, further, a review of the entirety of the material before this Court discloses no available argument of jurisdictional error enjoying any reasonable prospect of success. (citations omitted) 6 It was on the basis of the above reasoning that the primary judge concluded that the appellant was unable to advance an arguable case of jurisdictional error by the Tribunal and ordered that the application be dismissed with costs. 7 Leaving aside a ground which related only to identifying a basis for the grant of leave to appeal, the notice of appeal before this Court raises three grounds, which are as follows: 1. The primary judge erred in dismissing an application for judicial review without consideration to materials and did not consider unreasonableness of AAT. 2. The Hon. Federal Circuit Court Judge made legal error in his judgment by not properly Appling (sic) provision of s424 (a) and s. 424 (b) of the Migration Act - 1958. 3. The Administrative Appeals Tribunal (AAT) erred in its judgment by not applying s36 (2) of the Migration Act - 1958. The Tribunal has not considered serious harm faced by the Appellant. 8 The Minister in his submissions does not take any point about these grounds being different in form to those which were sought to be advanced before the primary judge. The substantive point made by the Minister is that what the appellant seeks before me, like before the primary judge, effectively amounts to request for the Court to undertake merits review. 9 This approach is seen most starkly by ground 1. It seems to me that the "unreasonableness of the AAT" referred to in this ground, which is devoid of particularisation, is not made out either in its narrower legal sense (as it has not been articulated in a way sufficient for me to understand why it is said the Tribunal decision was legally unreasonable) or even in any broader non-technical or colloquial sense. As to the remainder of ground 1, no submission was advanced which attempted to identify what material was said not to have been considered. 10 As to ground 2, to the extent that this is a reference to s 424A of the Migration Act 1958 (Cth) (Act), it is evident that this section is inapposite because the Tribunal considered the matter on the basis of material given to it by the appellant and I am unable to see any basis where there was a necessity for any particulars to be given by the Tribunal of the type referred to in that section. 11 Turning to ground 3, the again unparticularised allegation seems to be that the Tribunal failed to consider properly the criterion identified in that subsection. Even a cursory view of the Tribunal's reasons demonstrate that there is no substance in this submission. 12 In the end, the Tribunal had a range of concerns about the credibility of the appellant's claims and evidence and found that there was a "marked lack of detail, context and even basic corroborative detail". The information the appellant provided was said to be limited, repetitive and improvised. The Tribunal also noted, more specifically, that his descriptions of various injuries, events and his activities prior to his departure for Australia were lacking in detail and supporting evidence. In short, the Tribunal did not accept that the appellant was subject to the threats and harm that he had identified and rejected all of the appellant's associated claims. It followed that the appellant did not satisfy the criteria in either ss 36(2)(a) or 36(2)(aa) of the Act. 13 Even on the most beneficial reading of the notice of appeal, I am unable to discern any error in the primary judge's conclusion that the appellant had not raised below an arguable case for relief. It follows that there is no appealable error in the reasoning of the primary judge dismissing the application. In these circumstances, the notice of appeal must be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.