Add17 v Minister for Immigration

[2017] FCCA 1735

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADD17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1735

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Waterford v The Commonwealth (1987) 163 CLR 54
Reg v The District Court; Ex parte White (1966) 116 CLR 644
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

Applicant: ADD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 74 of 2017

Judgment of: Judge Emmett

Hearing date: 26 July 2017

Date of Last Submission: 26 July 2017

Delivered at: Sydney

Delivered on: 26 July 2017

REPRESENTATION

Applicant appeared in person with an interpreter

Solicitors for the Respondents: Ms Shelley He
Mills Oakley

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 74 of 2017

ADD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 10 January 2017, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 7 December 2016 (“the Tribunal”).

2. On 25 May 2017, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an amended application and any further evidence, including any transcript of the Tribunal hearing. The applicant was also directed to file and serve submissions in support. Further, the applicant provided with the contact details of legal services providers and translating and interpreting services.

3. At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicant’s application did not raise an arguable case for the relief sought.

4. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

5. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

6. The applicant was unrepresented before the Court this morning, although had the assistance of a Nepalese interpreter.

7. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

8. The applicant confirmed to the Court that he had not filed any further documents either in accordance with directions or otherwise.

9. The applicant said that he had further documents that he would like an opportunity to obtain to provide to the Court, including photographs. However, the applicant confirmed that none of those documents had been given to the Tribunal for the purposes of his review. I explained to the applicant that documents that he had not given to the Tribunal for the purposes of his review were not likely to be relevant to the single issue before this Court as to whether or not the decision of the Tribunal was made according to law or affected by a mistake that went to the Tribunal’s jurisdiction.

10. The applicant confirmed that he relied on the grounds identified in his initiating application for judicial review, filed on 10 January 2017, as follows:

    “29 - I was physically harmed by my wife's family but did not have enough evidence to support it.

    Nepalese divorce law is biased, supporting woman when it comes to divorce. Husband cannot file a divorce straightway.

    37 - Wife did not want a divorce initially and therefore no monetary demand was made; only to realize their hidden intention. They had a big plan of asking big money.

    30 - Initial visit to Australia was not for protection visa. But the situation with my wife got even worse and that Australia respected human rights and also other brothers being here, I choose to stay here, at least close to few brothers of my family.

    English is not my first language and my education is only up to year 10. Tribunal claims that I understood every question in hearing and answered all of them in English. Now when I saw this hearing decision, I can clearly see the differences in what I said and what Tribunal recorded. The facts that I mentioned in hearing is not what they have noted for decision making.

    Initial application was filled by my brother and this is also filled by him who is acting as an Interpreter for me.

    And therefore I would need an Interpreter for all the question/answers and redo the hearing again.”

11. The applicant’s grounds were interpreted for him and he was invited to say whatever he wished in support of those grounds. The applicant had nothing further to say in support of any of the grounds identified in his application or in support of his application generally. 

12. The first respondent, in written submissions, accurately summarised the background of the applicant’s claims and the Tribunal’s decision, as follows:

    “Background

    3. The applicant is a male citizen of Nepal who first arrived in Australia on 13 April 2014: CB 32. The applicant applied for a Protection visa on 13 October 2014: CB 1-49. The applicant claimed in his Protection visa application that he left Nepal because he was forced into an arranged marriage against his will and that his wife would not allow them to separate unless he paid her a large sum of money. The applicant was threatened by community police, women welfare workers, local leaders, and his wife's relatives who asked after the money. He was forcefully made to apologise in mass meetings and was taken into custody and suffered mental trauma and depression as a result. He claimed have been physically attacked in custody. He feared physical harm or death if he returned to Nepal from his wife, her relatives, and her contacts with political leaders: CB 19-22; CB 37-40.

    4. The applicant was invited to attend an interview with the Department on 6 May 2015: CB 59-62. On 26 June 2015, a delegate of the Minister refused to grant the application, finding that as the applicant did not appear at his scheduled interview, the delegate was unable to be satisfied that the applicant faced a real chance or real risk of harm for the reasons he claimed: CB 63-77.

    5. The applicant applied to the Tribunal for review of the delegate's decision on 20 July 2015: CB 78-79. The applicant was invited to (CB 88-93) and appeared at a hearing before the Tribunal on 12 October 2016: CB 98-100. On 7 December 2016, the Tribunal affirmed the delegate's decision: CB 107-115.

    The Tribunal's decision

    6. The Tribunal identified a number of discrepancies in the evidence the applicant provided in his visa application and at the Tribunal hearing. It identified inconsistencies in his evidence about whether demands for money were made against him before he arrived in Australia (CB 112, [37]), how many times the applicant had been taken into custody (CB 112, [38]), the reason why he departed Nepal for Afghanistan (CB 112, [39]), whether the his life was threatened by his in-laws (CB 112, [40]), whether he had been “constantly threatened” by community police, women welfare workers and powerful local leaders and relatives of his wife (CB 113, [41]), whether his brother in Canada had threatened to kill him (CB 113, [42]), and the reason for the applicant's decision to come to Australia: CB 113, [43].

    7. In light of these contradictions, the Tribunal found that the applicant was not a credible witness and that he had fabricated all his evidence in relation to his marriage in order to create a claim for protection: CB 113, [45]. The Tribunal rejected the applicant's material claims for protection. It did not accept that the applicant as forced to undergo an arranged marriage or that he had ever been threatened or harmed in any way was a result of that marriage. It found that the applicant departed Nepal for reasons unrelated to his claims for protection, namely, to visit his brother, travel with his parents, and to attend his brother's naturalisation ceremony. It did not accept that the applicant departed Nepal because he feared harm: CB 113, [46].

    8. The Tribunal considered the claim raised at the hearing, that the applicant's elder brother who lived in Canada had threatened to kill him. It observed that the applicant did not provide an adequate explanation for failing to raise the claim in his application: CB 113, [42]. The Tribunal considered that even if it were to “add” the new claim to the applicant's other claims, it was not satisfied that the applicant had a well-founded fear of persecution in light of the credibility concerns it had previously identified: CB 113-114, [49]. The Tribunal concluded that the applicant did not have a well-founded fear of persecution for the reasons claimed: CB 114, [50]. Relying on its earlier findings, it did not accept that the applicant faced a real risk of significant harm: CB 114, [53]-[55].”

13. Generally, the applicant’s complaints do no more than repeat the applicant’s claims for protection and identify where those claims are dealt with in the Tribunal’s decision.

14. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

15. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

16. To the extent that the applicant’s complaints appear to suggest that there may have been interpreting errors or misstatements by the Tribunal in respect of the applicant’s evidence, that allegation was wholly unparticularised and unsupported by evidence or submissions, either written or oral.

17. There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 20 May 2017 the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence.

18. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

19. The Tribunal decision record makes clear that the Tribunal identified the applicant’s claims and the evidence upon which he relied in support of those claims. The Tribunal explored the applicant’s claims with him at the hearing. At the conclusion of the hearing, the Tribunal noted that it allowed the applicant a further opportunity to say whatever he wished in support of his claims. The Tribunal noted the applicant’s further evidence.

20. The Tribunal found that discrepancies, inconsistencies and contradictions in the evidence given by the applicant at the hearing and in his written claims led the Tribunal to conclude that the applicant was not a credible witness. The Tribunal found that the applicant had fabricated all of his evidence in relation to his marriage in order to create a claim for protection.

21. The Tribunal then comprehensively rejected the applicant’s claims to have been forced to undergo an arranged marriage; that he was ever threatened or harmed in any way as a result of the marriage; and, that his wife’s family had made demands for the payment of sums of up to $50,000 at any time.

22. The Tribunal found the applicant came to Australia to visit his brother, travelling with his parents to attend his brother’s naturalisation ceremony. The Tribunal did not accept the applicant’s evidence that he departed from Nepal because he feared harm for any reason. The Tribunal also did not accept that the applicant had experienced serious harm in the past and found the applicant did not have a well-founded fear of persecution for reason of his failed marriage. The Tribunal also did not accept the applicant’s claim to fear harm from his brother.

23. Ultimately, the Tribunal concluded that the applicant did not meet the protection criterion in s.36(2)(a) of the Act or the complementary protection criteria in s.36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision under review.

24. The Tribunal’s findings would appear to have been open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)

25. In relation to the applicant’s allegations of incorrect understandings by the Tribunal of his evidence, the Tribunal found that the applicant speaks, reads and writes excellent English and that his written account was very detailed. The Tribunal noted that the overwhelming majority of the hearing was conducted in English and expressed confidence that the applicant understood exchanges he had with the Tribunal. There is nothing before the court to support the applicant’s unparticularised allegation in the grounds of his application that there were differences in what he said and what the Tribunal recorded.

26. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review.

27. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 10 January 2017, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  7 August 2017