AFQ16 v Minister for Immigration

[2018] FCCA 2303

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFQ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2303

Catchwords:
MIGRATION – Protection visas – judicial review of Tribunal decision to refuse visas – delay in making protection visa allegations – adverse credibility findings – request for impermissible merits review – no jurisdictional error demonstrated – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss. 36, 65, 424A, 425, 425A, 476

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

First Applicant: AFQ16

Second Applicant: AFR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 205 of 2016

Judgment of: Judge A Kelly

Hearing date: 28 June 2017

Date of Last Submission: 28 June 2017

Delivered at: Melbourne

Delivered on: 23 August 2018

REPRESENTATION

The First Applicant in person

The Second Applicant in person

Counsel for the Respondents: Ms Ward

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicants pay the respondent’s costs of this proceeding, fixed at $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 205 of 2016

AFQ16

First Applicant

AFR16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 4 February 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal made on 6 January 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants a Protection visa under s 65 of the Migration Act 1958 (Cth) (Act).

Background

1. The applicants are husband and wife, aged 37 and 35 years respectively.  They are Indian citizens who arrived in Australia on 29 January 2009.  They arrived in Australia holding Student (subclass 573) visas, which were valid until 15 March 2012.  On 15 March 2012, the second applicant applied for a Skilled (class VC) (subclass 485) visa, which application included the first applicant as a dependent.

2. On 9 November 2012, a delegate of the Minister refused the application for Protection visas.  On 29 November 2012, the applicants applied for a review of the decision refusing their application.  On 16 April 2013, the then Migration Review Tribunal affirmed the delegate’s decision to refuse the student visa application.

3. On 20 May 2013, the applicants sought judicial review of the Tribunal’s decision in the Federal Court of Australia.  On 24 July 2013, the applicants were advised that their application was unsuccessful.

4. On 2 September 2013, the applicant submitted a request for Ministerial Intervention. This request was denied on 20 February 2014.

5. On 19 March 2014, the applicants applied for Protection visas.  Their applications were deemed invalid.

6. On 15 May 2014, the applicants lodged further applications for Protection visas.

7. The claims of the first applicant for a Protection visa were set out in his application.  In substance, the first applicant claimed that he had come to Australia to support his wife while she studied: first, in Adelaide, in the field of community welfare; then, for a Certificate III Automotive and; finally, in Melbourne, for a Diploma of Management. 

8. He stated that, in 2009, while the applicants were in Australia, the brother of the first applicant became involved in a dispute with the uncle of the brother’s girlfriend.  He claimed that this dispute escalated and involved members of the parties adjoining villages and that in the course of that dispute, the girlfriend’s uncle suffered the loss of a lower arm and his brother suffered head injuries.  The first applicant disavowed that his brother had been responsible for the uncle’s injury.  The brother then left India for the UK on a tourist visa, where he has apparently remained. 

9. On 21 November 2010, the first applicant returned to India, taking the parties’ son (born on 26 July 2010), intending that he should live with the first applicant’s mother.  By way of digression, upon his departure from India to Australia, the applicants’ new born son was instead left in India with one of the applicants’ aunts.  Their son is presently aged eight years, and has been permanently residing in India since 2010.

10. The first applicant claimed that while present in India, word of his arrival spread and villagers from the uncle’s village came to his village and he was beaten by a number of people who mistakenly thought that he was the brother who had been involved in the altercation with the uncle.  The first applicant was unsure of the identity of his attackers but thought they may have been members of the uncle’s political party. 

11. The first applicant claimed that he would gain no protection from the police in India and fears that he will be killed by his attackers, should he return.  He produced a body of material as follows: (a) Information for offences alleged to have been committed on 7 August 2009; (b) a hospital admission dated 8 August 2009 for treatment of a person for injuries; (c) a series of witness statements; (d) a case management index suggesting that prosecution evidence had been led before a Civil Judge over the period 11 July 2012 to 28 March 2014.  The case index also indicated that a series of seven orders had been made in the proceeding but did not indicate what those orders provided.

12. The second applicant’s protection visa application was made solely as a member of the family unit of the first applicant.

13. On 30 July 2014, the applicants attended an interview conducted by a delegate of the Minister.

Administrative decisions

1. On 26 September 2014, the delegate refused to grant the applicants a Protection visa.  The delegate was not satisfied that the first applicant had a genuine fear of persecution or significant harm on return to India.  The delegate formed that conclusion on the basis of adverse credibility concerns coupled with the delay which had occurred in the making of the Protection visa applications.  The delegate found that the applicants had submitted their Protection visa applications for the purpose of extending their stays in Australia as all other avenues for staying had been exhausted. 

2. In particular, the delegate: (a) observed that the applicants often failed to answer questions put to them; (b) considered the first applicant’s claims not to be credible; (c) regarded as contradictory, the first applicant’s evidence that the brother had openly been in a longstanding relationship that was forbidden; (d) found that some of the first applicant’s claims were implausible; (e) rejected the prospect that the first applicant might be prosecuted in the place of his brother as unsupported; (f) regarded as significant that the first applicant had returned to India twice, notwithstanding the claims to fear harm; (g) found that the applicants had repeatedly changed their responses at interview to suit the situation; (h) rejected the claim that the brother was in a forbidden relationship; (i) noted the change in the first applicant’s initial claim that he had been detained for two hours by members of the uncle’s village, then to a claim that he had been hidden by his mother; (j) considered the five year delay in seeking protection as a relevant consideration.

3. On 27 October 2014, the applicants applied to the then Refugee Review Tribunal for a review of the delegate’s decision.

4. On 8 October 2015, the applicants attended a hearing before the Tribunal to give evidence and present arguments.  They did so with the assistance of a Punjabi interpreter.

5. On 6 January 2016, the Tribunal affirmed the delegate’s decision not to grant the applicants protection visas, providing a statement of is reasons for that decision (Reasons).

6. The Tribunal found that, whilst the applicants were generally consistent in their evidence, their claims were extremely vague, evasive and limited.  The Tribunal was not satisfied as to the first applicant’s credibility and found that his account of events had changed significantly over the course of the protection visa application, the interview with the delegate and the Tribunal hearing respectively:  Reasons, [44].

7. The Tribunal accepted that the applicant’s brother had been named in court proceedings as having been involved in a fight with people from a neighbouring village, during which fight his girlfriend’s uncle had been seriously injured by a sword. However, upon consideration of the incident and the first applicant’s oral evidence regarding the incident, the Tribunal found the evidence to be extremely vague and that his knowledge about the incident was minimal. The Tribunal identified four specific instances as being illustrative of that finding: Reasons, [46]-[48].

8. The Tribunal considered the first applicant’s evidence regarding the claimed attack on him at his house in 2010 and found that his evidence was vague and shifting.  The Tribunal considered that this raised further concerns about the first applicant’s credibility.  It also noted the first applicant made new claims about the incident in the course of the hearing, which had not previously been raised in the protection visa application or in the course of the delegate’s interview.  The Tribunal identified six specific instances to illustrate these findings:  Reasons, [49].

9. The Tribunal did not accept the first applicant’s concerns that the police would have prevented him from leaving the country if he had reported the 2010 attack to them. The Tribunal further noted its concerns that the first applicant’s family did not report the incident to the police. The Tribunal had regard to the first applicant’s evidence that his parents had spoken with the head of the village council (the ‘Sarpanch’), about the incident and that his family was respected in the village, as his father was a member of that village council. The Tribunal noted that the Sarpanch had been successful in ensuring that the police would not pursue the applicant’s parents in relation to the incident and also that the Sarpanch of his village had spoken to the Sarpanch of the adjoining village so as to prevent an escalation of the dispute. The Tribunal found these actions on the part of the Sarpanch of each village demonstrated that the authorities were willing to protect those not directly involved in his brother’s court proceedings: Reasons, [50]-[53].

10. Having regard to the country information, the Tribunal found that the police conduct relating to the incident had been appropriate and that the police would conduct the matter appropriately in the future. Whilst acknowledging that bribery might occur, the Tribunal found that the judicial system in India would support the first applicant in relation to his brother’s court proceedings and that there was a remote chance that he would be involved in court action against his brother in the future: Reasons, [55]-[56].

11. The Tribunal gave little weight to the applicants’ explanation for the delay in lodging the applications for protection.  The applicants claimed that, as time progressed, they became more aware of the gravity of the situation and so applied for the protection visas.  However, the Tribunal did not accept that there was any significant change in the applicant’s situation over the preceding four year period.  It noted that if the fear of harm was genuine, the applicants would have been expected to make their claims for protection earlier than they had.  Those matters caused the Tribunal to have further doubt as to the credibility of the applicant’s claims to need protection: Reasons, [57].

12. Having considered the totality of the applicant’s evidence, the Tribunal was not satisfied that the first applicant was a credible or reliable witness.  It rejected the entirety of his claims.  The Tribunal did not accept that the uncle of first applicant’s brother’s girlfriend, or persons associated with the uncle, wanted to exact revenge on his brother, or the first applicant himself.  The Tribunal did not accept that the first applicant was attacked and injured in 2010 at his family home, by people who either mistook him for his brother or wanted to take revenge against his brother.  The Tribunal did not accept that the people in that region had the intent to harm the first applicant in 2010 or that they would intend to do so in the future: Reasons, [58].

13. The Tribunal noted the first applicant’s claims that the uncle belonged to a different political party, but the Tribunal did not accept that the first applicant would be harmed on the basis that the uncle did belong to a different political party.  It did not do so, as it was not satisfied that he would be harmed for any reason.  Furthermore, the first applicant had expressed no political allegiance himself and made no claims that he would be targeted by anyone on this basis:  Reasons, [59].

14. The Tribunal concluded that the applicants did not have a well-founded fear of persecution on return to India and, for that reason, was not satisfied that the applicants met the refugee criterion or were owed protection obligations by Australia: Reasons, [60]-[62].

Procedural history

1. On 4 February 2016, the applicants filed an application for judicial review of the Tribunal’s decision. The applicants sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the decision of the Tribunal made on 6 January 2016.

2. The first applicant also swore (or affirmed) an affidavit to which he exhibited a copy of the Tribunal’s decision but which adduced no further evidence in support of his application for judicial review.

3. By a Response filed on 10 February 2016, the Minister contended that the application for judicial review should be dismissed on the ground that the Tribunal’s decision was not affected by jurisdictional error but sought a merits review of the Tribunal’s decision.

4. On 22 June 2016, orders were made, by consent, that the application be listed for hearing.   By this order, the applicants were afforded an opportunity to file an amended application, any additional grounds of review, together with any further affidavits and written submissions in support of their application.  The applicants did not do so. 

Judicial review

1. Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2); Plaintiff S157/2002 v Commonwealth.[1]

   [1] (2003) 211 CLR 476.

2. Certain criteria for protection visas are those set out in s 36 of the Act.

3. Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[2] Minister for Immigration and Citizenship v SZMDS.[3]  If the criteria for the grant of a protection visa are satisfied, the Tribunal must grant the application.  If not so satisfied, the visa application must be refused.

   [2](2004) 78 ALJR 992, [37]-[38].

   [3](2010) 240 CLR 611, [40], [102].

4. By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied.[4]

   [4]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).

Consideration

1. Each of the first and second applicant appeared, with assistance of an interpreter, on their application for judicial review.  As they were self-represented, I have re-examined the Reasons, their protection visa applications and the other materials comprising the Court Book.

2. The attempts to engage with the applicants, albeit with the assistance of an interpreter, were difficult.  In particular, it was not possible to discern the substance of the applicants’ criticisms of the Reasons or how they sought to demonstrate why the Tribunal’s decision was affected by jurisdictional error.  Rather than engage upon any complaint as to the conduct of the Tribunal hearing, it’s decision or the Reasons, the applicants told the Court of proceedings which their parents had taken in India, which appeared to be concerned with:

   a)           resolving a property dispute to establish land ownership; and

   b)           obtaining protection orders against the first applicant’s brother.

3. Much was also sought to be made of the family of the girlfriend of the first applicant’s brother being affluent people who held great influence. 

4. Ultimately, the applicants told the Court that they did not wish to seek residency, but wished only to remain in Australia for a short period.  They were unable to tell me what length of time they proposed represented a short period to remain in Australia, but did say that they wished to go back to India.

5. The application contained three grounds of review.

Ground 1 – explanation of variation in accounts

1. Ground 1 reads:

   There is fear of my life if I go back to India.  I have given the information to the DIBP and the RRT on two different occasions and the information does wary (sic) as I did not have all the details of the incident documented at that time and it is very hard to gather all information of the incident that had happened after six years.

2. The first applicant appeared to accept that there were inconsistencies in his evidence and that the Tribunal had relied on those inconsistencies in arriving at its adverse credibility findings.

3. I consider that in relying on inconsistencies in the first applicant’s evidence when making adverse credibility findings the Tribunal had adopted a wholly orthodox approach which was well open to it.

4. It was clearly open to the Tribunal, when finding that it was not satisfied as to the first applicant’s claims to fear harm in India, to take into account both the inconsistencies in his evidence and the delay in seeking protection.  As it was for the Tribunal to be satisfied the whether claim had been made out, there was nothing wrong in the Tribunal determining for itself the particular weight to be attributed to any material before it:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang), at 281-282.

5. I accept also, the submission that Ground 1 impermissibly sought a merits review of the decision:  see Wu Shan Liang; supra at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

6. Ground 1 is rejected.

Ground 2 – disagreement with decision

1. Ground 2 reads:

   The Appeals Tribunal has just taken a general view of my claims and given the decision as not to grant my a protection visa.  The claims in my case will arbittaririly deprive me of my life and also of my partner. (Errors in original)

2. As concerns Ground 2, the Minister submitted that this ground constituted no more than disagreement with the Tribunal’s factual findings and its decision not to grant the applicants the protection visas which they sought. In respect of the applicants’ claims that they will be arbitrarily deprived of their lives, the Tribunal considered these claims to a fear of harm in some detail: Reasons, [47]-[59]. However, on account of adverse credibility findings, the Tribunal did not accept that the applicants would face a real chance of serious harm or a real risk of significant harm: Reasons, [60]-[61]. Upon those bases, the Tribunal concluded that the applicants would not be deprived arbitrarily of their lives. The Tribunal’s findings on these matters were open to it on the evidence that was before it.

1. Ground 2 is rejected.

Ground 3 – separation from applicants’ son

1. Ground 3 reads:

   There are claims of the harm caused to my family (my wife and my son) who has been living away from both of us in India with his aunt and is growing up alone.  The evidence of six years of separation from my son has not been considered as my son had a visa in 2010 and could have entered Australia on a valid Student visa which he had until 15 March 2012.

2. As concerns ground 3, the Minister submitted that it was not clear how separation from the applicant’s son (who still remains in India), was relevant to the applicant’s claims to a fear of harm in India.  The Minister submitted that, at its highest and best, this ground could be understood at amounting to no more than a merits review of the Tribunal decision, and for that reason, should also be rejected.

3. The first respondent submits that, otherwise, the Tribunal complied with its obligations under Div 4, part 7 of the Act, including the obligations imposed by ss 424A and 425. The Minister points out that the applicants were properly invited to a hearing, before the Tribunal, on 8 October 2015, in an accordance with ss 425 and 425A, which invitation they accepted and responded to, by attending the hearing with the assistance of an interpreter. The Minister submitted that the applicants were clearly on notice from the delegate’s decision that the credibility of their claims and evidence was the determinative issue on the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. The Minister submitted that there was no material that was required to be put to the applicants for comment, in accordance with s 424A.

4. Ground 3 is rejected.

Conclusion

1. I consider that no jurisdictional error has been demonstrated by the applicants in the Tribunal’s decision, whether on their stated grounds of review, or otherwise upon proper consideration of the Reasons.  The application should be dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 23 August 2018