Abo20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 979
•12 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ABO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 979
File number(s): SYG 36 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 12 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection visa – whether the Tribunal erred in its decision in applying protection visa criteria prescribed in s 65 of the Migration Act 1958 (Cth) – whether the Tribunal erred in its decision to come to conclusion based on Country of Origin information services section of the Department of Home Affairs (COISS) research – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 5J(1), 36, 65, Ministerial Direction No 84 Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259
NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Number of paragraphs: 37 Date of last submission/s: 29 April 2021 Date of hearing: 29 April 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Mr Gao ORDERS
SYG 36 of 2020 BETWEEN: ABO20
First Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
12 MAY 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant to pay the First Respondent’s costs fixed in the amount of $5,400.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of India. The applicant first arrived in Australia on 31 May 2015 as the holder of a Tourist visa. On 17 July 2015, the applicant lodged an application for a Protection visa. On 21 October 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Protection visa.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 17 December 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.
The applicant now seeks judicial review of the Tribunal decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After instructing itself as to the relevant law and policy, including at paragraph 9 of its decision, Ministerial Direction No 84 and PAM 3 Refugee and Humanitarian- Refugee Law Guidelines, the applicant’s claims are set out at paragraphs 12 and 13 of the Tribunal decision. They may be summarised as follows:
•The applicant is from Hyderabad, India. The applicant lists no specific ethnicity but is Muslim in faith.
•The applicant has a wife, two sons and a daughter who remain in India. The applicant remains in contact with them.
•The applicant worked for a furniture company from 2001 until 2010, then as managing partner for another furniture company from February 2010 until May 2015. The applicant then worked as a salesperson for the auto parts company in the UAE from January 2012 until November 2014.
•The applicant claims that his father was an active worker in the Congress party. The applicant joined that party and encouraged people to vote for the Congress party candidate in his local area.
•In 2000 until 2006 the applicant was a member of Majlis Bachao Tehreek (MBT) which had split from the main All India Majlis-e-Ittehadul Muslimen (AIMIM) but switched to the AIMIM in 2007. The AIMIM was targeted by the Hindu nationalist organisation RSS and its affiliated wings such as the Bharatiya Janata Party (BJP). The applicant claims that he was politically active with his business.
•The applicant was active during the 2009 election. At a political meeting a fight broke out between BJP and AIMIM members.
•During the 2012 local elections the applicant received threatening phone calls from unknown numbers. They threatened to burn his shop and harm his children.
•In October 2012, the applicant claims that his shop was attacked by unknown people. The applicant was hurt in the incident, however not a lot of damage was caused to the property. The applicant claims that he went to the police station to lodge a complaint but the police refused to file a complaint without an assailant identity.
•The applicant claims that to save his life he went to Dubai and stayed there for 2 years returning to India in November 2014. The applicant claims that as soon as he returned, he started getting phone calls that he was not safe. The applicant claims that in January 2015 when he was on his motorbike he was attacked from behind and knocked off his motorbike but escaped relatively uninjured.
•The applicant claims that BJP workers threatened his family members and stated if he did not leave the AIMIM party they would harm us.
•The applicant and his wife came to Sydney on Tourist visas. The applicant’s wife became sick. The applicant claims that they did not have extra money for her medical treatment, so he sent her back to India.
Paragraphs 14 through to 17 of the Tribunal decision, detail extensive Department of Foreign Affairs and Trade (“DFAT”) country information on India, in a report dated 17 October 2017. The Tribunal also made a request of the Country of Origin Information Services Section (“COISS”) of the Department of Home Affairs (“the Department”) to undertake research on AIMIM and the BJP and violence between the two groups.
At paragraph 21 and onwards of its decision, the Tribunal noted that it had credibility concerns with the applicant’s claims.
First, the applicant had not provided consistent evidence over time as to his shop being destroyed in an attack in 2012 by his political opponents and the business being subsequently closed permanently. The applicant claimed in the interview with the delegate that it was closed after the attack in 2012, whereas in his Protection visa application, he indicated the business had operated until May 2015, the month that he came to Australia.
Second, the applicant was not consistent in terms of ceasing his involvement in AIMIM. In the applicant’s interview with the delegate, the applicant indicated that he ceased his involvement with AIMIM in 2012, when he left for Dubai after his shop was vandalised. However during the Tribunal hearing, the applicant indicated that, on return to India in November 2014, he engaged in specific activity for AIMIM similar to what he had done in terms of organising rallies and meetings prior to leaving. The Tribunal noted that there was no election being held at that time. The applicant responded that such activities would still nevertheless take place outside election periods. The Tribunal put to the applicant that his evidence in the hearing was inconsistent with his evidence in the interview. This inconsistency caused the Tribunal to have credibility concerns as to the applicant’s claimed political activities over time.
Thirdly, the applicant had not been consistent in claims as to the level of his involvement in AIMIM and whether he had been particularly singled out by his political opponents because of his political profile. In the interview with the delegate, the applicant indicated that he did not have a profile beyond being an ordinary member of AIMIM. The applicant stated that he was targeted on the basis of that membership. This was inconsistent with the applicant’s evidence at the hearing which indicated that he had a key or higher level organisational role and it is for this reason that he was particularly singled out for attack, from political opponents.
Fourthly, the applicant was not consistent in claims that his children were threatened in addition to himself in phone calls he received from political opponents leading up to his shop been vandalised in 2012. In the applicant’s written claims, as part of the visa application, he stated that it was he, who was getting threatening phone calls. This was inconsistent with other material which indicated that at the time, threats were made to his children. In response, the applicant indicated that he had misunderstood questions during the Tribunal hearing and thought he was being asked about threats being made to party people only. The Tribunal considered that this was a tangential matter and not an overly central matter, but it did raise some credibility concerns as to the lack of consistency in evidence, as to who made threatening phone calls.
Fifthly, the Tribunal noted that the independent information obtained did not support the position that an individual, who was politically involved in AIMIM for a number of years in the past, but who would not be politically involved on return to India, would face a real chance of serious or significant harm based on the past political involvement. The applicant had indicated during the hearing that he would not be politically involved on return to India. The applicant indicated that he would still feel at risk in returning to India, given his past political involvement.
At paragraph 48 and 49 of its decision, the Tribunal concluded that the applicant had not been a truthful witness in relation his central claims. The Tribunal was not satisfied that the applicant’s children were threatened by political opponents leading to his shop been destroyed in 2012. The Tribunal was not satisfied that the applicant’s claimed political difficulties in India caused the applicant to flee to Dubai for his safety. The Tribunal considered that the applicant went to Dubai for other reasons, most particularly for employment opportunities.
The Tribunal was not satisfied that on return, the applicant would be at risk because of his past political activities, noting that he had been an ordinary member of the AIMIM.
Accordingly, the Tribunal concluded that the applicant did not meet the criteria for either refugee protection under s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”), or complementary protection under s 36(2)(aa) of the Act, and affirmed the delegate’s decision.
GROUNDS OF JUDICIAL REVIEW
The applicant relies upon four grounds of judicial review contained within the Initiating Application filed with the Court on 8 January 2020. They are as follows verbatim:
Ground One
The Administrative Appeals Tribunal erred in its decision in applying protection visa criteria prescribed under s.65 of the Migration Act 1958 (the Act).
Ground Two
The Administrative Appeals Tribunal did not follow Ministerial direction No. 84 s.499 of the Act and the Tribunal has not taken account of policy guidelines prep Department of Immigration under Refugee and Humanitarian - complimentary protection guidelines include PAM3 Refugee and humanitarian - Refugee Law Guidelines.
Ground Three
The Administrative Appeals Tribunal erred in its decision to come to conclusion based on Country of Origin information Services Section of the Department of Home Affairs (COISS) research.
Ground Four
The Administrative Appeals Tribunal made legal error at Paragraphs - 44 "The Tribunal did not qualify the question in this respect. Whilst this is not a credibility issue on a tangential or overly central matter, the Tribunal has some credibility concerns as to the lack of consistency in evidence as to who was threatened in phone calls."
No particulars were provided in relation to any of the above grounds of judicial review.
THE APPLICANT’S SUBMISSIONS.
The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter. Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of the relevant Court Books and that a copy of the first respondent’s written submissions had been interpreted to him. The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing if he wished to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review not merits review and the difference between the two types of review. The Court also explained the procedure by which the Court hearing would be undertaken.
Despite Court orders, no written submissions were provided by the applicant in support of his case. The Court notes however, that in the applicant’s Affidavit of 7 June 2020, he set out the procedural history of the matter and asserted that the Tribunal made legal and factual errors in his case. When initially invited to make any submissions, the applicant told the Court that he that he wanted to stay (in Australia).
Following the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to say anything in reply. The applicant stated that when he was at the Tribunal hearing, he was confused and made a mistake as to who had been threatened.
THE FIRST RESPONDENT’S SUBMISSIONS
The legal representative for the first respondent summarised the Tribunal’s reasons for the benefit of the applicant, prior to explaining why there was no jurisdictional error in the Tribunal decision.
Ground one asserts that the Tribunal erred in its decision in applying Protection visa criteria prescribed under s 65 of the Act. Section 65 of the Act is the power to grant a visa once all other criteria are satisfied. The relevant issue before the Tribunal was whether the applicant satisfied the criteria under s 36(2)(a) or (aa) of the Act. The Tribunal carried out this task. This ground must fail.
Ground two asserts that the Tribunal did not follow Ministerial Direction No 84 and other policy guidelines including complimentary protection guidelines under PAM 3-Refugee Guidelines. The Tribunal expressly took these into account at paragraph 9 of its decision. This ground also fails.
The third ground asserts that the Tribunal erred in coming to its conclusion based on research from COISS of the Department. First, there can be no objection in principle to the Tribunal relying on country information such as COISS research. It is for the Tribunal to determine what weight should be given to such information: (see: NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11]).
Secondly, contrary to the arguments raised in the ground, the Tribunal did not make its findings based on the COISS research. While the Tribunal considered the COISS research at paragraph 16 of its decision, and put that information to the applicant, it ultimately did not accept the applicant’s evidence due to the credibility concerns it had in relation to his explanation as to why he would face a real chance of serious or significant harm if he returned to India.
It should also be noted that the Tribunal accepted at paragraph 53 of its decision that the independent research before it indicated that there had been some adverse incidents, violence and skirmishes between AIMIM and BJP officeholders. However, based on the applicant’s own evidence that he was an ordinary AIMIM member, the Tribunal was not satisfied that the extent and level of such difficulties as outlined in the COISS research, would lead to a real chance that an ordinary member would face a real chance of serious or significant harm as a result of the ordinary membership.
Ground four is a complaint as to the conclusions of paragraph 44 of the Tribunal decision. This ground appears to be no more than a challenge to a credibility finding. It was submitted that it was open to the Tribunal to make the finding, and it was open to the Tribunal to find that there were credibility concerns, given the lack of consistency in the applicant’s evidence. Ground four cannot succeed.
CONSIDERATION
Ground one consists of a bland assertion jurisdictional error. If the grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal:
(see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). It is also misconceived.
The Tribunal carried out the task required of it and examined the applicant’s claims by reference to s 36(2)(a) and (aa) of the Act, as it was required to. As the Tribunal found that the applicant did not meet the requirements under either of these sections, the power to grant a visa under s 65 of the Act, was not enlivened. Ground one has no merit.
Ground two asserts that the Tribunal did not follow Ministerial Direction No 84 and PAM 3 Refugee and Humanitarian- Refugee law Guidelines. The Court notes that the Tribunal specifically stated at paragraph 9 of its decision record that it had taken account of these matters to the extent relevant, to the decision under consideration. The allegation consists of a bland assertion. No particulars are provided as to how the Tribunal erred and failed to take account of these matters.
A fair reading of the Tribunal decision indicates that the Tribunal properly instructed itself as to the relevant law and policy considerations. The Tribunal considered the applicant’s evidence and gave reasons as to why it was not satisfied that the applicant had a well-founded fear of persecution for the reasons set out in s 5J(1) of the Act.
The Court notes that at paragraph 56 of the Tribunal decision, there may be an element of confusion, in that, prior to making a determination under s 36(2)(a) of the Act the Tribunal refers to the fact that it is not satisfied that there were substantial grounds for believing the applicant as a necessary and foreseeable consequence of being removed from Australia to India there is a risk of him suffering significant harm. That is of course the test for
s 36(2)(aa) of the Act, complimentary protection. While the conclusions could have been better expressed and more sequential, a fair reading of the decision from paragraph 54 to 58 does not indicate a confusion by the Tribunal as to the relevant test under s 36(2)(a) and s 36(2)(aa) of the Act. The Court is also mindful that Tribunal decisions are not to be read with ‘an eye too finely attuned to error’: (see: Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259).
Ground three alleges that the Tribunal erred in its decision as it relied upon country of origin information produced by the Department. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information, is a matter for the Tribunal: (see: NAHI and VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29). The Court accepts the submission that the Tribunal used the COISS country information to put certain matters to the applicant and found that his answers were not credible. This was a conclusion that was open to the Tribunal. Ground three has no merit.
Ground 4 alleges a legal error in paragraph 44 of the decision record. The quote contained within the ground however, is to be found at paragraph 41 of the Tribunal decision. The Court assumes this to be a typographical error on the part of the applicant. Again, no particulars are provided as to how this is evidence of jurisdictional error.
Paragraphs 37 to 41 of the Tribunal decision, deal with credibility concerns it had, in relation to inconsistencies in the applicants’ evidence as to who was threatened in the phone calls. The Tribunal concluded that while the issue was not overly central to the matter, it did buttress more significant concerns that Tribunal had, regarding the applicant’s credibility. The Court does not consider this to be a finding that is not based on logical or probative evidence, or that it is subject to legal unreasonableness, irrationality or illogicality. Ground four has no merit.
As the applicant is unrepresented, the Court has perused the Tribunal decision record, but is unable to ascertain any unarticulated jurisdictional error.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 12 May 2021
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