Adj20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 2024
•24 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ADJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2024
File number(s): SYG 64 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 24 August 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant not believed – whether the Tribunal made irrational assumptions, denied the applicant procedural fairness or failed to properly consider the complementary protection criterion considered – no jurisdictional error Legislation: Migration Act 1958 (Cth) ss 36, 189, 424, 425, 426, 427, 429A
Federal Circuit Court Rules 2001 (Cth)
Cases cited: AXY17 v Minister for Immigration and Border Protection (2018) 262 FCR 317
BOX16 v Minister for Immigration and Border Protection [2020] FCA 801
BTF15 v Minister for Immigration and Border Protection (2016) 69 AAR 376
BTU18 v Minister for Home Affairs [2019] FCA 540
BWU16 v Minister for Immigration and Border Protection [2018] FCCA 305
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZSYI v Minister for Immigration and Border Protection [2015] FCA 1276
Number of paragraphs: 38 Dates of hearing: 13, 24 August 2021 Place: Sydney The Applicant appeared in person Solicitor for the Respondents: Mr J Pinder of Minter Ellison ORDERS
SYG 64 of 2020 BETWEEN: ADJ20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVES AND MULTICULUTRAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
24 AUGUST 2021
THE COURT ORDERS THAT:
1.The application filed on 10 January 2020 is dismissed.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,900.
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 December 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 27 July 2021, which I adopt.
The applicant is a male citizen of Sri Lanka[1] who first arrived in Australia on 24 March 2006 as a holder of a student (Class TU) (subclass 572) visa (student visa).[2]
[1] Court Book (CB 1–3, 6)
[2] CB 8
The applicant subsequently applied for and was granted two further student visas.[3] On 30 September 2009, the applicant’s last held student visa ceased and he became an unlawful non-citizen.[4] On 31 July 2019, the applicant was remanded into criminal custody and on 1 August 2019, following his release on bail, the applicant was detained under s 189(1) of the Migration Act 1958 (Cth) (Migration Act).[5]
[3] CB 63
[4] CB 55; CB 63
[5] CB 55
On 11 August 2019 the applicant applied for a protection visa.[6] In his protection visa application, the applicant claimed to fear harm in China on account of his Christian religion.[7]
[6] CB 1–18
[7] CB 10–12
On 22 August 2019 the delegate refused to grant the applicant a protection visa, finding the applicant had fabricated his claims.[8]
[8] CB 59–73; esp. CB 53–69
On 30 August 2019 the applicant sought review of the delegate’s decision before the Tribunal.[9]
[9] CB 74–79
On 16 September 2019 the Tribunal invited the applicant to attend a hearing on 24 October 2019.[10]
[10] CB 99–108
On 20 October 2019 the applicant provided written submissions to the Tribunal in which he clarified his claims and attached country information.[11] He also provided email correspondence with NSW police, a title certificate in relation to his mother's home, a translated police complaint by his mother, and the applicant’s medical records.[12]
[11] CB 110 –117
[12] CB 118–179
The applicant appeared at the hearing before the Tribunal on 24 October 2019.[13]
[13] CB 180–182
On 28 October 2019 the Tribunal wrote to the applicant, purportedly in compliance with s 424(1) of the Migration Act, inviting him to comment on or to respond to information in respect of inconsistencies between his oral evidence to the Minister’s Department (the Department) and to the Tribunal.[14]
[14] CB 183–185
On 3 November 2019 the applicant provided a response[15] which included a translated affidavit from his mother[16] and a lease agreement in respect of his mother’s home.[17]
[15] CB 186
[16] CB 187–190
[17] CB 191–196
On 10 December 2019 the Tribunal affirmed the delegate’s decision.[18]
[18] CB 197–213; esp CB202–213
Applicant’s claims
The written protection claims in the applicant’s visa application allege that the applicant feared harm in China on account of his Christianity. However, the applicant claimed to be from Sri Lanka and to be a Buddhist. The delegate and the Tribunal both accepted that the protection claims regarding China and Christianity were incorrectly inserted into his application.
Before the delegate, the applicant claimed to fear harm on account of having received threats from two individuals in Australia, X and Y, to whom he owed money in connection with his cleaning business. The applicant also claimed to fear harm on account of disclosing information about a people trafficker to police in Australia. Before the Tribunal, the applicant abandoned his claims in respect of the people trafficker, stating he had not disclosed this to anyone and therefore did not fear harm on this basis.
Tribunal decision
The Tribunal summarised the applicant's evidence at the Tribunal hearing[19] and noted its credibility concerns in respect of inconsistencies in the applicant’s evidence with respect to his mother being approached in Sri Lanka.[20] The Tribunal also noted its concerns with respect of the applicant’s delay in applying for protection.[21]
[19] CB 204–206 at [9]–[22]
[20] CB 206–208 at [23]–[36]
[21] CB 208–210 at [37]–[48]
Considering the evidence from the applicant cumulatively, the Tribunal concluded that the applicant was not a witness of truth and the account of events on which his protection claims were based was false. The Tribunal accordingly rejected the entire factual basis of the applicant’s claims to fear harm.[22] The Tribunal accepted that the applicant may have had business dealings and commercial disputes with X and Y; however, it rejected the claim that these people wished to and had sought to harm him.[23] In coming to this conclusion the Tribunal considered the affidavit of the applicant’s mother,[24] the documents in respect of the lease and sale of her house,[25] and the emails between the applicant and the police but ultimately did not give evidentiary weight to any of these documents.[26]
[22] CB 210–211 at [50]
[23] CB 211 at [51]
[24] CB 211 at [52]
[25] CB 211 at [53]
[26] CB 211 at [54]
The Tribunal considered the applicant’s mother’s offer to provide evidence as well as the suggestion by the applicant that his mother give evidence; however, the Tribunal considered that the applicant’s mother would provide evidence consistent with her affidavits and complaint to the police which was inconsistent with the evidence the applicant provided to the delegate.[27] The Tribunal concluded that any evidence the applicant's mother could provide would not overcome the credibility concerns the Tribunal had in relation to the applicant’s evidence and consequently decided not to take evidence from her.[28]
[27] CB 211 at [55]–[56]
[28] CB 212 at [58]
The Tribunal found that there was no evidence that any person sought to harm the applicant nor any credible evidence as to why the applicant did not wish to return to Sri Lanka. The Tribunal accordingly found that there was not a real chance the applicant would face serious harm in Sri Lanka nor that there was a real risk he would suffer significant harm.[29]
[29] CB 212 at [61]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 10 January 2020. The grounds in that application are:
1.The Tribunal made assumptions about the thoughts, motivations or reasons of other people for which there was no evidence or rational or intelligible basis and in doing so failed to engage intellectually with the claims and evidence before it.
Particulars
(a) The Applicant claimed that his mother had withheld important information from him because she did not want to worry him, and his mother confirmed this in an affidavit. The Tribunal's refusal to believe that a mother would act in that way was arbitrary and not based on any evidence.
(b) The Applicant claimed that a particular individual, identified as "Y", had threatened to harm him and his family in Sri Lanka. The Tribunal said it was difficult to believe that if "Y" really wanted to harm him he would not have actually attacked him in Australia or had others do that on his behalf. The Tribunal's reasoning was mere speculation as it had no way of knowing what factors may have contributed to "Y"'s thought processes or decision in relation to whether he should attack the Applicant in Australia.
2.The Tribunal's refusal to call a witness requested by the Applicant amounted to jurisdictional error.
Particulars
(a) The Tribunal's refusal to call the Applicant's mother as a witness at the hearing or at a resumed hearing because it believed that she would only repeat what she had said in her sworn affidavit was unreasonable because her evidence was crucial to the Applicant's credibility and the Tribunal could not foresee whether an oral examination of the witness might not dispel its doubts in that regard.
(b) The Tribunal's refusal to call the witness amounted to a failure to provide the Applicant with a full opportunity to present evidence as required by s 425 of the Act.
(c) The refusal to call the witness was a denial of procedural fairness.
3.The Tribunal did not given any real consideration to whether the Applicant satisfied the criterion in s 36(2)(aa).
Particulars
The Tribunal merely stated that it "had considered" the alternative criterion without giving an reasons for finding that it was not satisfied. The Court should infer that the Tribunal did not give any separate consideration to that criterion.
The application was supported by a short affidavit which I received. I also have before me as evidence the court book filed on 7 February 2020.
This matter came before me for a final hearing earlier this month, on 13 August 2021. Shortly before that hearing, the applicant foreshadowed that he would be seeking an adjournment. He was legally represented at the time the judicial review application was filed, but his solicitors withdrew from the record in accordance with the Federal Circuit Court Rules 2001 (Cth) on 7 April 2020. At the final hearing, the applicant sought an adjournment so that he could obtain alternative legal representation. He provided correspondence by SMS with a legal practitioner to indicate that he had some expectation of obtaining legal representation. I agreed to adjourn the hearing until today.
A short time before today’s hearing, the applicant emailed my chambers enclosing further exchanges with legal practitioners concerning the possibility of legal representation. It was apparent that to this point the applicant had not succeeded in obtaining legal representation. Nevertheless, he sought a further adjournment to redouble his efforts. That was opposed by the solicitor for the Minister, and I refused the adjournment request on the basis that I had no confidence that it would be productive, in terms of the applicant’s representation. The matter then proceeded to submissions, and the applicant proved to be articulate and focused in his submissions. He had the benefit of the Minister’s solicitor presenting the Minister’s submissions first and then responding to them.
The applicant made a number of points which are materially reflected in the grounds of review. He also noted that Australian legal proceedings that he had been engaged on in 2019 continued. It appears that those proceedings, which were criminal in nature, concluded with the applicant being placed on some kind of good behaviour bond. While the applicant is concerned that the persons associated with those proceedings wish to harm him, they have not to this point done so. There may be matters which the applicant may wish to draw to the Minister’s attention, but for present purposes, in considering the applicant’s oral submissions, it is appropriate to point out what the Tribunal stated at [47] of its reasons[30] concerning the Tribunal’s view of the applicant’s risk of harm.
[30] CB 210
In my view, the grounds of review advanced by the applicant have no substance. I agree with and adopt the submissions of the Minister relating to those grounds.
Ground 1
Ground 1 essentially claims that particular findings of the Tribunal were illogical or irrational and otherwise without a proper basis. Properly understood, this ground simply expresses a disagreement with the Tribunal’s findings. Particular (a) alleges that the Tribunal’s rejection of the applicant’s claim at [29] that his mother withheld information from him because she was worried about him was arbitrary or without evidence. Particular (b) alleges that the Tribunal’s reasoning in respect of Y at [40] was mere speculation and it had no way of knowing what factors may have contributed to Y’s thought processes. Neither particular discloses jurisdictional error on the part of the Tribunal.
In respect of particular (a), the Tribunal did not believe that, if the applicant’s mother was concerned for the welfare of her son, she would withhold information from him. In other words, the Tribunal did not consider it to be credible that the applicant’s mother would not provide all information to the applicant, knowing that he was in the process of applying for protection and then only disclose this further information after the applicant had been unsuccessful at the delegate stage. While findings of credit are a matter par excellence for the Tribunal, it has been accepted that credibility findings can be subject to challenge.[31] However, in the circumstance of this case, the Tribunal’s credibility findings were properly open on the material, made in a procedurally fair manner and had a logical and probative basis.[32] Furthermore, the applicant’s suggestion that the Tribunal’s findings were without evidence is contrary to authority that the Tribunal does not need to possess rebutting evidence before holding that a particular factual assertion is not made out.[33]
[31] see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [38] per McKerracher, Griffiths and Rangiah JJ
[32] DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ
[33] see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348
In respect of particular (b), it is well established that, in assessing whether there is a real chance an application will face persecution, it is the decision maker’s task to identify inferences which may properly be drawn from the primary facts and apply those facts and inferences to an assessment of “real chance”.[34] As such, it is necessarily the decision maker’s task to speculate as to what occurred in the past on the basis of the facts and evidence presented to it and therefore it cannot be that the Tribunal erred in respect of its consideration at [40].
[34] see, eg Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294 per Kirby J
Ground 2
Ground 2 alleges that the Tribunal’s refusal to call the applicant’s mother as a witness was unreasonable as her evidence was crucial to the applicant’s credibility and the Tribunal could not foresee whether the evidence of the witness may not dispel its doubt. It further alleges that the refusal to call the witness was a breach of s 425 or otherwise a breach of procedural fairness.
While the applicant did not request to call his mother as a witness pursuant to s 426 of the Migration Act, the request by the applicant was one that engaged the Tribunal’s powers under s 427(1)(a) and s 429A(a) of the Migration Act. Therefore, like in the exercise of any statutory discretion, the Tribunal was required to act reasonably when considering the applicant’s request.[35]
[35] see, eg BWU16 v Minister for Immigration and Border Protection [2018] FCCA 305 at [30] per Judge Manousaridis
The Tribunal determined not to call the applicant’s mother as the evidence she had provided by way of her earlier affidavit was inconsistent with the claims made by the applicant and the Tribunal had rejected their explanation for that inconsistency. Furthermore, the Tribunal found the there was no indication that the applicant’s mother could give evidence in respect of the applicant’s delay in lodging his protection visa application. Ultimately, the Tribunal found that any evidence the applicant’s mother could provide would not overcome its significant credibility concerns in respect of the applicant.
In this respect a decision as to whether to receive oral evidence will depend, to a significant extent, on the relevance and importance of the evidence. Where on the face of the material before the Tribunal there was no reason to suppose that the applicant’s mother could allay its concerns about the applicant’s credibility, it was not unreasonable for the Tribunal to decide not to call her.[36]
[36] see, eg BTF15 v Minister for Immigration and Border Protection (2016) 69 AAR 376 at [55] per Katzmann J; BOX16 v Minister for Immigration and Border Protection [2020] FCA 801 at [76] per Wigney J; BTU18 v Minister for Home Affairs [2019] FCA 540 at [57] per Wigney J; AXY17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at [41] per Tracey and Mortimer JJ
For the same reasons the Tribunal did not breach s 425 of the Migration Act or otherwise deny the applicant procedural fairness (insofar as was required by the Migration Act) in any way.
Ground 3
Ground 3 alleges that the Tribunal did not give real consideration to whether the applicant satisfied the complementary protection criterion and did not give reasons as to why it found it was not satisfied.
Prior factual findings by reference to the criterion in s 36(2)(a) (the refugee criterion) may be germane to an assessment of an applicant’s claims to fear persecution under s 36(2)(aa) (the complementary protection criterion). There is, in such scenario, no need for any separate consideration of these same factual matters in relation to the complementary protection criterion.[37] Having found at [61] that there was no credible evidence before it that any person in Australia or Sri Lanka sought to harm the applicant nor as to why the applicant did not want to return to Sri Lanka, the Tribunal was not required to undertake the same factual assessment again and separately for the purposes of the complementary protection criterion.
[37] SZSYI v Minister for Immigration and Border Protection [2015] FCA 1276 at [46]–[47] per Gilmour J
As I pointed out to the applicant, his future is now in his own hands. He has a right of appeal, if he wishes to exercise it, or he may wish to seek ministerial intervention or he may wish to return voluntarily to Sri Lanka. He appears to be still seriously concerned about the risk to him of harm at the hands of X and Y, although both are located in Australia and neither has succeeded in harming the applicant to this point.
I will order that the application filed on 10 January 2020 is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,900. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,900.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 27 August 2021
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