Aes20 v Minister for Immigration
[2020] FCCA 2363
•26 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AES20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2363 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425 |
| Cases cited: DAO16 v Minister for Immigration (2018) 258 FCR 175 Minister for Immigration v Khadgi (2010) 190 FCR 248 |
| Applicant: | AES20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 98 of 2020 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2020 |
REPRESENTATION
| The applicant appeared in person by telephone |
| Solicitors for the Respondents: | Mr Gardner |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondents costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 98 of 2020
| AES20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 20 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 the applicant’s claims and the decision of the Tribunal on them are set out in the Minister’s outline of submissions which I adopt.
Factual background
The applicant is a citizen of India, who arrived in Australia on 10 April 2016 as the holder of a visitor (subclass 600) visa.[1]
[1] CB 136
On 30 June 2016, the applicant lodged an application for a protection visa.[2] The applicant attended a protection visa interview before the Minister’s Department on 11 January 2017.[3] The application was refused by the delegate on 19 January 2017.
[2] CB 31–95
[3] CB 115–6
On 9 February 2017, the applicant sought review of the delegate's decision before the Tribunal.[4]
[4] CB 150–170
On 17 December 2019, the applicant appeared before the Tribunal to give evidence and to present arguments in relation to the issues arising in his case, assisted by a Tamil interpreter.[5]
[5] CB 195–197
On 20 December 2019, the Tribunal affirmed the delegate's decision.[6]
[6] CB 212–231
Applicant’s claims
The applicant claimed to be an Indian national of Tamil ethnicity who would be at risk of harm on return to India due to his membership of the Nam Tamilar Party (NTP) and protest activities “against the atrocities and genocide committed on Sri Lankan Tamils”.
The applicant claimed that he had been “apprehended, man handled and tortured without proper documents” on a few occasions and warned frequently against participating in any political activities in support of Sri Lankan Tamils by the police. The applicant also claimed the police had filed “false cases” against him because of his support for Sri Lankan Tamils.
At the Tribunal hearing, the applicant raised further claims that he had written two to three petitions against his neighbour before November 2015 and that the police had warned him he should not live in that area any longer; he would be unable to relocate elsewhere in India as his neighbour was from the ruling political party and had connections everywhere.
Tribunal decision
The Tribunal recorded the applicant's key claims for protection[7] and outlined the issues traversed with the applicant at hearing.[8] The Tribunal also set out its extensive credibility concerns stemming from inconsistencies in the applicant's evidence in his protection visa application, at the protection visa interview and at the Tribunal hearing which, taken cumulatively, led the Tribunal to conclude that the applicant was “not a witness of truth when claiming to hold fears, and concerning his character and past harm, upon which he has based his protection claims”.[9]
[7] CB 213–217: [3]–[8]
[8] CB 217–218: [9]–[16]
[9] CB 219–224: [19]–[38]
The Tribunal made the following relevant findings regarding the applicant's claims for protection:
i)it accepted that the applicant was an Indian citizen of Tamil ethnicity from a named location in Tamil Nadu and was prepared to accept that some Sri Lankan Tamils had moved into his area and that the applicant “may have been sympathetic to their plight”;[10]
ii)it did not accept that the applicant considered himself “close to or aware of the issues facing Sri Lankan Tamils”; wanted to or did work to support Tamil causes; joined any political organisations (including the NTP); attended meetings, protests or provided low level support to the NTP; was imputed or believed by the authorities to have any such political involvement; that his neighbour was a Member of the Legislative Assembly who used the police to place pressure on the applicant to cease his political activities; nor that he was warned, detained, arrested, tortured or otherwise harmed or subjected to adverse interest from the authorities;[11]
iii)it did not accept that there was any reason for the Sri Lankan authorities or the applicant's claimed neighbour to have any adverse interest in the applicant or for him to face harm, due to his own activities or anyone else's; nor that the applicant had or will have any interest or motivation to engage in political activities in India or Australia;[12] and
iv)it was not prepared to accept that the applicant would be unable to find employment in India by virtue of his being a member of the “Pillai” middle-level caste.[13]
[10] CB 224: [39]
[11] CB 224–225: [39]–[40]
[12] CB 225: [41], [44]
[13] CB 225: [43]
Having considered all of the applicant's claims (individually and cumulatively), relevant country information and its findings that the applicant was “not a credible witness concerning past events or future harm feared”, the Tribunal rejected all of the applicant's substantive claims and found that the applicant did not satisfy the criterion set out in paragraphs 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (Migration Act).[14]
[14] CB 226: [45]–[50]
The current proceedings
These proceedings began with a show cause application filed on 14 January 2020. The applicant continues to rely upon that application. The grounds in it are:
1. The Tribunal failed to provide adequate opportunity to the Applicant and this resulted in miscarriage of justice and has vitiated the procedural fairness.
Particulars
The Tribunal in para 36 observes that "The Tribunal is also prepared to accept that the applicant could have been nervous throughout the proceedings". The Tribunal having accepted that the applicant was nervous throughout the proceedings and that he was self represented, failed to adjourn the proceedings to another date and this affected the capacity of the applicant to answer the questions raised at the time of interview, accurately and completely. The failure to adjourn vitiated the principles of natural justice and the provisions of law resulting in miscarriage of justice. This approach of the Tribunal violated the principles of procedural fairness as enunciated and laid down by the High Court in the case of Minister for Immigration and Citizenship v Li [2012] FCAFC 74 (24 May 2012). This also violates the principles of natural justice and the provisions of law resulting in miscarriage of justice.
[2] The Tribunal failed to consider the correct social group to which the applicant belongs and hence applied the wrong test as to need for grant of protection visa to the applicant.
Particulars
The applicant's correct social group is that of Indian Citizen of Tamil ethnicity, young male, worker of NTP (Nam Tamilar Party) alleged to have links to the banned LTTE organisation in India and a protestor of NTP due to its political opinion. All these aspects put together was never considered by the Tribunal.
The application was supported by a short affidavit filed with it which I received as a submission. I received as evidence the Court book filed on 24 March 2020.
I invited oral submissions from the applicant this morning. The applicant told me that he was concerned that the Tribunal might have misunderstood his evidence and claims. When I pressed him for particulars he referred to the issue of his obtaining an Indian passport. As pointed out by the Minister’s solicitor the passport issue was discussed by the Tribunal at [23] – [24] of its reasons. I do not detect in the reasons any misunderstanding.
The applicant also referred to his problems with politicians and party leaders rather than the state or the political apparatus itself. He said that circumstances are different in India to Australia and only a person in India could fully understand them. The applicant’s claims concerned his dealings with politicians were considered by the Tribunal at [27] – [32] of its reasons. Again, I detect no misunderstanding in the Tribunal’s reasons.
Plainly, the Tribunal had credibility concerns about the applicant’s claims and evidence. As I put to the applicant in oral argument, the Tribunal’s conclusions were, in my view, open to it on the material before it. The applicant stated that he had nothing to add by way of submissions in reply. In my view, the applicant’s submissions do not point to an arguable case of jurisdictional error by the Tribunal. The applicant’s grounds of review are addressed in the Minister’s submissions which I agree with and adopt.
Ground one
The applicant alleges in Ground 1 that he was denied an adequate opportunity to give evidence and present arguments in relation to his claims, which resulted in a “miscarriage of justice” and violated the principles of procedural fairness and natural justice. The particulars to this ground take issue with the Tribunal's failure to adjourn the hearing to a later date despite its finding that it was “prepared to accept that the applicant could have been nervous throughout the proceedings”.[15]
[15] CB 224: [36]
An assessment of whether the Tribunal acted unreasonably in not considering the exercise of its discretion to adjourn the hearing is invariably fact dependent.[16] In this respect:
i)there is no evidence to indicate that the applicant requested an adjournment of the Tribunal hearing;
ii)the applicant had a period of approximately two years and eleven months between the date of the delegate's decision and the hearing date to prepare arguments and evidence in support of his review application;
iii)the applicant was on notice that the whole of his account was in issue, as the delegate rejected the applicant's substantive claims to fear harm in their entirety;
iv)the Tribunal's statement that it was “prepared to accept that the applicant could have been nervous throughout the proceedings” was given in the context of its adverse credibility findings against the applicant, which included inconsistent information given to the department as well as the Tribunal;[17] and
v)there is nothing in the Tribunal's decision record to suggest that the applicant had any difficulties articulating his claims at hearing, with the Tribunal recording that it was “satisfied that the applicant understood the proceedings and was able to give evidence and present arguments”.[18]
[16] Ministerfor Immigration v SZVFW (2018) 357 ALR 408; [2018] HCA 30 at [84] per Nettle and Gordon JJ
[17] CB 224: [36]
[18] CB 218: [11]
These factors point to a conclusion that the Tribunal's decision not to consider adjourning its review was not legally unreasonable.
Further, the applicant has not provided any evidence to establish that he was unfit (in the sense of being unable) to present argument and answer questions.[19] Accordingly, the applicant was plainly afforded a meaningful hearing as required by s.425 of the Migration Act and a sufficient opportunity to give evidence and present arguments about determinative issues on review.
[19] Minister for Immigration v SZNCR [2011] FCA 369 at [30] per Tracey J
Ground 2
Ground 2 contends that the Tribunal failed to consider the applicant's claim to fear harm on the basis of his membership of a particular social group, which the applicant claims was an independent and separate claim from the applicant's claim to fear harm on the basis of his political opinion. The particulars define the applicant's “correct social group” as being: “Indian citizen of Tamil ethnicity, young male, worker of NTP alleged to have links to the banned LTTE organisation in India and a protestor of NTP due to its political opinion and allege that these aspects put to together was never considered by the Tribunal”. This ground is also misconceived.
The protection visa application did not include a claim to fear harm on the basis of the applicant's membership of a particular social group. Rather, the applicant claimed that “I will be apprehended and tortured by the police or goons at the instance of the ruling party or other major political parties due to my political affiliation and opinion (emphasis added) and because they reckon we are a sort of a party having links to terrorist organisation LTTE”.[20] Similarly, the delegate's decision records that at the protection visa interview on 11 January 2017, the applicant stated that he believed that he would be tortured if he returned to India because of his protest activities against the ruling political party.[21]
[20] CB 68
[21] CB 139
At no point did the applicant claim that he feared harm on the basis of his membership of an identified social group, and as such, that this was not an essential integer of the applicant's claims.[22] Furthermore, the Tribunal's decision record evidences that it engaged in an active intellectual process and gave genuine consideration to the applicant's claims.[23] It assessed the claims as raised by the applicant, and in light of its adverse credibility findings and independent country information, it was not satisfied that the applicant was owed protection under the refugee or the complementary protection criterion having regard to his claims individually and cumulatively.[24]
[22] Minister for Immigration v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [122] per Robertson J
[23] Minister for Immigration v Khadgi (2010) 190 FCR 248; [2010] FCAFC 145 per Stone, Foster and Nicholas JJ
[24] CB 225: [45]
The Tribunal reached those conclusions on account of the applicant's inconsistent evidence and claims in his protection visa application, at the protection visa interview and at the Tribunal hearing. Those conclusions were logical, rational and had a probative basis.[25]
[25] DAO16 v Minister for Immigration (2018) 258 FCR 175; [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ
Furthermore, the Tribunal rejected the applicant's claim to have had any involvement with the NTP or to have been imputed to have any such political involvement. In those circumstances, the Tribunal was under no obligation to give consideration to a claim where the factual premise upon which the claim depended had been rejected, regardless of whether that claim was expressly articulated or one arising on the material.[26]
[26] Applicant WAEE v Minister for Immigration (2003) 236 FCR 593; [2003] FCAFC 184 at [47] per French, Sackville and Hely JJ
I conclude that the applicant has failed to establish that the decision of the Tribunal is effected by any jurisdictional error.
I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale. The applicant suggests impecuniosity but that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant is to pay the first respondents costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 1 September 2020
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