AAK19 v Minister for Home Affairs

[2019] FCCA 2510

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAK19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2510

Catchwords:
MIGRATION – judicial review of refusal to grant protection visa –  whether it was open to the Tribunal to make credibility findings – whether the Tribunal was justified in its conclusion on the evidence – where no jurisdictional error found – application dismissed with costs.

Applicant: AAK19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 1 of 2019

Judgment of: Judge Young

Hearing date: 22 August 2019

Date of Last Submission: 22 August 2019

Delivered at: Adelaide

Delivered on: 22 August 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the First Respondent: Mr Retallick

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr Retallick

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. That the application filed on 28 December 2018 be dismissed.

2. The applicant pay the first respondent’s costs in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 1 of 2019

AAK19

Applicant

And

MNISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for review of a decision of the Administrative Appeals Tribunal made on 26 November 2018, affirming a decision of the Minister’s delegate made on 12 July 2018 to refuse the applicant a protection visa.

3. The background to the matter is as follows. The applicant, who is a young man of 21, came to Australia in 2016 on a student visa. In 2018 he applied for a protection visa. His written claims were set out in a claim dated 18 June 2018. I will read them. I use the woman’s initials and allow for some grammatical errors which I correct in reading:

   I have been in Australia since 2016, and before coming here I developed intimate relations with [Ms. S]. We knew each other since 9 December 2011. My girlfriend is a Hindu Brahmin by caste. I am a Jat Sikh by caste. I want to state that my girlfriend’s parents found about our relationship in March 2018, when she was caught with photos of her and I in some intimate poses. They were against our relationship right from that day. It is added, that her parents are very strict, religious, orthodox and strongly believe in the caste system. In their family it is considered a taboo if the girls get involved or married to a boy outside of their caste. However, we were committed to get married.  I was in constant touch with her on the phone from Australia. They came to know about our plan of getting married after listening to our conversation on a parallel line on 16 March 2018. They then searched her room and found our photos. Little did I know that it was the last time I was speaking to her, as she vanished thereafter. Although my friends have visited her house several times, she has vanished and not returned till date and here whereabouts are not known.

4. Here, I interpolate a reference to a written letter to Indian police from the applicant dated 18 March 2018, which appears at page 38 of the court book.

   My complaint to the police has also not yielded any result, as her parents are very influential and police in India are known to be corrupt. Her parents have threatened me several times – with dire consequences – if I make any attempt to locate or meet my girlfriend. They’ve categorically told me they will kill me, if they had to, in case I tried to come to India to contact or meet their daughter in India. My parents and brother have also been threatened by them. They are so scared and have advised me not to come back. I am madly in love with my girlfriend. However, I am aware of the honour killings in India and am really scared, as one of my childhood friends was killed in similar circumstances by his in-laws. I think I will also meet the same fate, if I return to India.

5. I should also add that the court book includes some documents that relate to the applicant entering a guilty plea to a charge of indecent assault which apparently occurred in 2017. I have seen that material but, naturally, on an application for judicial review I ignore it and I give it no weight whatsoever.

6. The Tribunal was concerned about the credibility of the applicant and it described his evidence during the Tribunal hearing as “not credible”, as “vague” and as “inconsistent with his written claims”. A very significant element of that inconsistency concerned claims that the applicant made that he came to Australia in 2016 because his life was in danger.

7. The Tribunal considered that that claim was inconsistent with the written claim that I have read which indicated that the parents of Ms S found out about the relationship in March 2018. Of course, if they found out about the relationship in 2018 there is no reason for them to be making threats against the applicant in 2016, before he came to Australia. I drew that to the applicant’s attention and in his submissions to me today, assisted by an interpreter, he said that what was really the case was that the parents had been aware of the relationship in 2016 and had made threats but then they found out some more information in March 2018 and they, to use his words, “became angrier”.

8. While it is not my task on an application for judicial review to make any finding about credibility of the applicant independently of the Tribunal, the answer given to me by the applicant did nothing to persuade me that the conclusion of the Tribunal that the applicant lacked credibility was not open to it. There are other similar examples of inconsistency at paragraph 32 of the Tribunal decision. It noted that the applicant had told the Tribunal that he had not been threatened in Australia. I drew that to the applicant’s attention along with his written claim that the parents of Ms S had “threatened me many times” which was apparently inconsistent. He said, as I understood his answer, that all threats had been made to his family or his friends in India and he had not received any direct threats, again an explanation that does nothing to persuade me that the Tribunal’s credibility findings were not open to it.

9. The Tribunal pointed to other matters of concern in the applicant’s claims, particularly his inability to provide any email history of the relationship with Ms S and the matters that have been discussed, though the Tribunal accepted that the applicant had been in communication with a woman of that name in India.

10. The applicant’s grounds of review are not conventional grounds of review for jurisdictional error and on their face simply take issue with the credibility findings of the Tribunal without purporting to point to anything that might be described as jurisdictional error. That in itself is a ground that would merit the dismissal of the application but I have, as I said, read the material, discussed it with the applicant. The decision of the Tribunal resting primarily on an adverse credibility assessment of the applicant was a conclusion that was open to it and justified by the material.

11. I dismiss the application and I make an order for costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 6 September 2019