AHD16 v Minister for Immigration
[2018] FCCA 1118
•9 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHD16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1118 |
| Catchwords: MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – show cause hearing – consideration of factors – no arguable case raised – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 476 Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13 |
| Cases cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 |
| Applicant: | AHD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 281 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 28 February 2018 |
| Date of Last Submission: | 28 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr R White of Mills Oakley Lawyers |
ORDERS
The application made on 10 February 2016 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $5,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 281 of 2016
| AHD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 10 February 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 January 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE3”). Also in evidence are two documents tendered by the Minister, one being a letter dated 4 April 2016 addressed to the applicant from the Minister (“RE1”) (serving the Court Book), and the other a letter dated 21 February 2018 addressed to the applicant from the Minister (“RE2”) (serving the Minister’s written submissions).
Before the Court
The parties first appeared before a Registrar of the Court on 31 March 2016 and various orders were made, by consent, for the progress of the matter. These included giving the applicant the opportunity to file any amended application and any further evidence by way of affidavit. The applicant has not filed any further evidence, nor has he filed an amended application.
The parties next appeared before a Registrar of the Court at a mention on 4 August 2016, and various orders were made on that date, including that the matter be set down for ashow causehearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), and orders giving the applicant and the Minister the opportunity to file written submissions. The applicant filed written submissions on 20 July 2016. The Minister filed written submissions on 21 February 2018.
Background
The applicant is a citizen of Indonesia (CB 13). He is of Chinese ethnicity and Catholic religion (CB 13 and CB 18). He first came to Australia on 28 February 2013 on a Business (Short Stay) (Subclass 456) visa until 10 March 2013 (CB 15.4). He returned to Australia on 10 November 2013 on a visitor visa (CB 14.4).
The applicant applied for a protection visa on 4 February 2014 (CB 1 to CB 32). His claims to fear harm were set out in his application (CB 18 to CB 21). He claimed that due to his Chinese ethnicity and Catholic religion, he “suffered tortures” and was discriminated against by “neighbours, [his] classmate and [his] colleague” (CB 18.7).
The applicant claimed that during a riot in 1998, while he was working as an accountant, his workplace was burnt down. He claimed that several of his colleagues went missing, and that he was scared, so he hid at home. After the riot had ended, the applicant claimed “racism still happened around the country” (CB 18.7).
The applicant further claimed that in 2012 his neighbours came to his house to “damage things”. He claims the neighbours “smashed windows and [a] door”, and “hurt”, “beat” and “threaten[ed]” him (CB 18.8).
By letter dated 13 August 2014, the applicant was invited to attend an interview with the delegate on 16 September 2014 (CB 39 to CB 41). However, he did not attend the interview (CB 46.7). The delegate refused the application on 16 September 2014 (CB 42 to CB 54). Due to the applicant’s non-attendance at the interview, the delegate was unable to make findings of fact in relation to the credibility of the applicant’s claims, and was ultimately not satisfied as to the veracity of his claims (CB 49.5).
The applicant applied for review to the Tribunal which was received by the Tribunal on 20 October 2014 (CB 55 to CB 62). The applicant was invited to, and attended (with his representative), a hearing before the Tribunal on 17 December 2015 (CB 68 to CB 69 and CB 119 to CB 121).
On 15 December 2015, the applicant’s representative provided written submissions and supporting documents to the Tribunal on the applicant’s behalf (CB 73 to CB 118). The submissions expanded on the applicant’s claims set out in his protection visa application, and they also attached what was claimed to be a photograph of the wound the applicant claimed he had received as a result of the attack in 2012 (“the photograph”) (CB 118).
After the Tribunal hearing, the applicant was given further time to provide evidence in support of his claims. On 4 January 2016 (I note that the covering letter at CB 66 states 4 January 2015, but in context, this should be 4 January 2016), the applicant’s representative provided a Statutory Declaration of the applicant dated 23 December 2015 regarding the claimed attack on the applicant in 2012 (CB 66 to CB 67 and see [36] – [37] at CB 130).
The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa on 14 January 2016 (CB 124 to CB 137).
As mentioned above, the Minister filed written submissions in this matter on 21 February 2018. I am satisfied on the evidence before the Court, that the written submissions provide a fair and accurate summary of the Tribunal’s decision record, and for the purposes of this judgment I adopt [12] – [17] of those written submissions as follows:
“[12] The Tribunal considered the applicant’s claims, evidence and submissions (CB 127-130, [20]-[37]) and referred to independent country information about ethnic Chinese and Christians in Indonesia (CB 130-134, [38]-[54]).
[13] The Tribunal had ‘concerns about the credibility of the applicant as a witness’ and found the applicant’s failure to attend the delegate’s interview and the ‘weak explanation’ he gave for not attending reflected poorly on his general credibility. The Tribunal also found that his oral evidence to the Tribunal was ‘vague, general and lacking in convincing detail’, he was ‘hesitant’ and ‘evasive’ in responding to questions and his evidence about his claims was ‘internally inconsistent and contradictory.’ It did not accept that he had given a truthful account of his past experiences in Indonesia (CB 135, [58]).
[14] After considering the applicant’s claims and country information, the Tribunal accepted the applicant had suffered some degree of discrimination and harassment in the past in Indonesia on the basis of his Chinese ethnicity but also observed that any discrimination or harassment he experienced did not disrupt his life such that he was prevented from accessing education, employment or accommodation (CB 135, [59]).
[15] The Tribunal had ‘concerns about the veracity’ of the applicant’s claimed experiences during the 1998 riots. Those concerns arose out of several identified inconsistencies between his PVA and the evidence he gave at the Tribunal hearing. Further, the Tribunal found the applicant was vague and hesitant in recounting details to the Tribunal. For example, the Tribunal noted that in the applicant's PVA, he claimed that: during the riots his company was burned to the ground; some colleagues went missing; and he hid at home; but did not claim anything had happened to him at home. Conversely, to the Tribunal, the applicant claimed he was at home with his mother and uncle and people tried unsuccessfully to loot them. The Tribunal noted that the applicant did not mention that his workplace was burned, until the Tribunal put his previous statement to him, which prompted the applicant to state that there ‘may have been a fire.’ The Tribunal did not accept the applicant’s claims about the 1998 riots. It expected that, despite the significant amount of time that had passed and given the applicant’s claims about the significance and trauma the riots continued to cause him, it would expect that if his claims were truthful he would be able to recall details about whether his workplace was burned or if people had attempted to break into his house (CB 135, [60]). The Tribunal did not accept that the applicant’s workplace had been looted or burned or that anyone attempted to break into his house (CB 136, [61]).
[16] The Tribunal did not accept that the applicant’s account of the 2012 incident [w]as truthful, finding that the applicant’s written claims in his PVA were ‘significantly different’ to his oral evidence to the Tribunal. In his PVA, the applicant wrote that his neighbours came to his house, smashed his windows and doors, hurt him and threatened him, and wanted him to move out of the area. He also claimed that his family was so scared his parents told him to go to Australia. However, in his oral evidence to the Tribunal, the applicant said this incident occurred during a prayer group meeting in an attempt by the attackers to stop the prayer group. The Tribunal also noted the applicant had travelled to Australia in March 2013 after the claimed 2012 attack (CB 31, 47.1) and then returned to Indonesia (CB 29). The Tribunal found that if the 2012 incident had occurred then it would have been reasonable to expect the applicant would have explored options for not returning to Indonesia at that time (CB 136, [62]). In addition, the Tribunal noted that although the applicant had claimed he had been hospitalised and made a police report, he was unable to produce any documents to support his claims. The Tribunal considered, but did not accept, the applicant’s explanations for being unable to provide such supporting documents (see: CB 129-130, [32]) and found it was reasonable to expect that he would have brought hospital or police records with him or been able to produce them to support his claims (CB 136, [62]).
[17] For these reasons and on the basis of its adverse assessment of the applicant’s credibility, the Tribunal did not accept the applicant’s account of being attacked in September 2012 was truthful and did not accept that he or anyone else were attacked at his home for any reason (CB 136, [63]). The Tribunal did not accept the applicant had suffered any past threats or harm on the basis of his ethnicity or religion. Whilst it accepted the applicant may have been subjected to discrimination (such as name calling and harassment) in the past as an ethnic Chinese, the Tribunal found on the basis of country information that indicated violence and tensions against ethnic Chinese had ‘improved significantly in the past 17 years’ and many discriminatory laws had been abolished, it was not satisfied the discriminatory practices that remained gave rise to serious harm or that the applicant faced a real chance of persecution for reasons of his race, ethnicity or religion or any other Convention reason. The Tribunal found he did not satisfy the refugee criterion (CB 136-137, [64]-[66]) and, for the same reasons, was also not satisfied he met the complementary protection criterion (CB 137, [68]-[69]).”
The Application before the Court
The application to the Court contains the following grounds:
“1. The first applicant was born in Jakarta, the capital city of Indonesia. Mr. Sutjipto has encountered much discrimination and harassment since he was very young. On or about 6th September 2012, a group of Moslem mob hit him with a sharp object and tried to kill him. He decided to leave Indonesia after this attack in order to escape from any life threatening events that might happen in the future. Tribunal on 14th January 2016 in paragraph 64 of the decision record concluded that the Tribunal has not accepted that the applicant has in the past personally suffered physical threats to his safety or harm on the basis of his ethnicity or religion as claimed. However, the applicant has shown the Tribunal a picture of his injury, which the Tribunal member never asked about. The first applicant has told the truth of what happened to him back to Indonesia. In the circumstances, there was a denial of procedural fairness and jurisdictional error.
2. The Tribunal in paragraph 60 of its decision, concluded that the applicant’s account in his application differed from his account to the Tribunal and he was vague and hesitant in recounting the details to the Tribunal. It would be unreasonable to expect someone to remember exact details of circumstances that occurred almost 18 years ago, especially when they are under such significant pressure and nervousness during the hearing. In the circumstances, there was a jurisdictional error.”
[Errors in original.]
Consideration
In the applicant’s written submissions filed on 20 July 2016, the applicant states “the applicants (sic) press ground 2 of the application filed on February 2016, but not ground 1” ([8] of the applicant’s written submissions). The submissions then go on to set out what the applicant says is “ground 2”. However, what is set out there appears to be part of what appears as “ground 1” in the application (see further below).
As set out above, this matter was set down for a show cause hearing pursuant to r.44.12 of the FCC Rules.
The issue for the Court is whether the grounds of the application raise a legally arguable case for the relief that the applicant seeks. From what is noted on his application, the relief the applicant seeks is an order that the Tribunal’s decision be quashed, and that his case be returned to the Tribunal for reconsideration according to the law.
In the circumstances, if the Court cannot be satisfied that an arguable case is raised against the Minister, the application will be dismissed. Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; (2000) 173 ALR 665; (2000) 74 ALJR 1219), or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).
At the hearing the applicant appeared in person. He was assisted by an interpreter in the Indonesian language.
The applicant had asserted to the Minister’s solicitor prior to the commencement of the hearing that he had not received or had translated for him, the Minister’s written submissions. I am satisfied on the evidence that the Minister’s submissions were posted to the applicant’s address for service (see “RE2”). Nonetheless, the hearing was adjourned for a short period so that the interpreter could translate the Minister’s written submissions for the applicant.
The applicant then confirmed that he was ready to proceed with the hearing. It was clear the applicant had little or no understanding of the grounds of his application, nor the written submissions which had been filed on his behalf. The applicant said that the grounds of his application and his written submissions had been written with the help of a “friend”, and that he was unable to assist in explaining them.
When the Court raised what is stated at [8] of his written submissions with the applicant (see above at [16]), he stated that he “relied on the written submissions”. In any event, in the circumstances, it was appropriate to consider both grounds in the application to the Court.
Ground one sets out some of the applicant’s claims to fear harm which were raised before the Tribunal. Ground one asserts a denial of procedural fairness because the Tribunal did not accept that the applicant was telling the truth about claimed events, and that the Tribunal should have come to a different conclusion on the question of the grant of a protection visa to the applicant.
The following may be said about ground one.
First, the applicant’s ground appears to contend that the Tribunal was in error in finding that his account of the events in September 2012 was not truthful.
The Tribunal did find that the applicant’s account of the claimed events of September 2012 was not “truthful” ([63] at CB 136). The Tribunal gave reasons for this, which were reasonably open to it on what was before it. The Tribunal’s reasons were probative of the material before it, and reveal that the Tribunal engaged with each element of the applicant’s claims in this regard. No arguable case arises simply because the Tribunal did not accept the applicant’s claims, in circumstances where there was a logical and probative explanation, and basis, for its finding.
Second, the applicant’s ground also asserts that the Tribunal “never asked” him about a “picture” (the photograph) he provided to the Tribunal, which he said showed an injury he suffered during the claimed events of September 2012.
Despite the opportunity by orders made by the Registrar on 31 March 2016, the applicant has not put any transcript of the Tribunal hearing before the Court.
The only evidence before the Court of what occurred at the Tribunal hearing are the references in the Tribunal’s decision record. The Tribunal’s decision does not reveal any reference to the photograph at the hearing.
However, the Tribunal is not required to ask the applicant questions about each piece of evidence before it (see, for example, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593). The Tribunal’s obligation at the hearing arising from s.425 of the Act is to give the applicant a meaningful opportunity to give his evidence and make arguments in relation to the issues in the review (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 and Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575).
One of the issues in the review in the current case was the applicant’s assertion that the incident that he claimed occurred in September 2012, revealed that he would be at risk of harm if he were to return to Indonesia.
On the evidence before the Court, the applicant was given the opportunity to address this issue at the Tribunal hearing. The Tribunal reports that it asked the applicant why he left Indonesia in November 2013. That is, 14 months after the claimed incident of September 2012. The applicant responded that he was “no longer comfortable in Indonesia” ([30] at CB 129).
Relevantly, the Tribunal specifically asked the applicant about the claimed events in September 2012. The Tribunal pointed out to the applicant that his evidence to the Tribunal about the events of September 2012 was different to what he had put in his written application for the protection visa ([32] at CB 130). The Tribunal then questioned the applicant about why he feared returning to Indonesia ([34] at CB 130).
The Tribunal discussed relevant country information with the applicant, which indicated the improved conditions for ethnic Chinese in Indonesia since the riots in 1998. The Tribunal put to the applicant that country information suggested that the treatment of Chinese and Chinese Christians in Indonesia, did not amount to serious or significant harm ([35] at CB 130)
On the evidence, the applicant was given a further three weeks after the hearing to provide further evidence. He provided a Statutory Declaration dated 23 December 2015 to the Tribunal on 4 January 2016 (I note again that in context, the date of the letter should be 4 January 2016 and not 4 January 2015) (CB 66 to CB 67). This was ample opportunity to advance his case.
In relation specifically to the photograph, this was provided in a bundle of documents attached to the applicant’s representative’s submissions dated 13 December 2015 (received by the Tribunal on 15 December 2015). The photo is reproduced at Court Book page 118.
The applicant’s representative’s submissions attached the photograph in the following context (CB 74.1):
“The most traumatic event that really hurt him and still haunts his to this day happened on or about 6th September 2012 when he was attacked by a group of angry Moslem people who was living in the vicinity of his house. He was having a Catholic prayer meeting which he did on a weekly basis with a few people from his Church. The Moslem neighbours in the vicinity did not like the prayer meeting and gospel songs that they were singing and decided to come and attack the group. As he was the owner of the house he bears the brunt of the attack that almost killed him. We have attached a picture of his injury. He had to be hospitalized and had an operation done on the wound. Once recovered he reported the incident to the police but they did absolutely nothing.
[Errors in the original.] [Emphasis added.]
The Tribunal acknowledged the written submissions of 13 December 2015 (which it received on 15 December 2015). It summarised the contents of those submissions ([23] at CB 127 to CB 128). On the evidence before the Court, the Tribunal gave a fair summary of the submissions.
The Tribunal specifically noted the submission concerning the claimed events of September 2012. The Tribunal made specific reference to “[a] photo of his injury” which was attached to the submissions of 13 December 2015 (dot point 4 at CB 128).
The Tribunal made findings about the claimed events of September 2012 that were reasonably open to it, and for which it gave cogent reasons probative of the material before it.
The Tribunal was not required to uncritically accept the applicant’s claims (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs[1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR n265; (1994) 35 ALD 1). Its disbelief of the applicant’s claims in relation to the events of September 2012, was reasonably open to it for the reasons that it gave.
On the evidence, the Tribunal considered the claimed events of September 2012, and the photograph provided in corroboration of these claimed events.
It is important to note that the applicant’s complaint is not that the Tribunal did not consider, or refer, to the photograph, but rather that it did not ask him questions about it. Further, even though he had provided the photograph, the Tribunal still found against him.
As set out above, the Tribunal was not required to ask questions about every piece of evidence before it. On the evidence before the Court, the Tribunal understood and considered the applicant’s claim in this regard. Importantly, it understood that the photograph was put in corroboration of the claimed events of September 2012.
The Tribunal gave reasons for rejecting the truth of the applicant’s account of the claimed events in September 2012. In the circumstances, it was not obliged to make further specific reference to the photograph. As the Minister submits, the factual premise on which the photograph was intended to support was rejected by the Tribunal for the reasons that it gave ([23] of the Minister’s written submissions).
There is no indication in the current circumstances that the Tribunal failed to advert to evidence which might have led it to a different finding of fact (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323).
In all, ground one does not raise any arguable case for the relief sought.
Ground two directs attention to [60] (at CB 135) of the Tribunal’s decision record. The ground appears to complain about the Tribunal’s description of the applicant’s evidence at the hearing about his claimed experiences in 1998, as being “vague and hesitant”.
The applicant’s complaint is that it would be unreasonable to expect someone to remember exact details of what happened “almost 18 years ago”.
The Tribunal expressly noted that some time had passed since the events of 1998. However, the Tribunal found that given that the applicant had pressed the significance of the events of 1998, and the “trauma” they continue to cause him, if the claims were true, the applicant would be expected to recall more details ([60] at CB 135). For example, it would be reasonable to expect that the applicant could recall whether or not his workplace was burned, and whether or not people had attempted to break into his home ([60] at CB 135).
It was reasonably open to the Tribunal to find that given the claimed significance of these events, the applicant would have been expected to remember such important details, even after the passage of time.
The ground also puts forward the contention that the applicant could not be expected to remember such details, given that he was under “significant pressure” and was nervous at the Tribunal hearing.
Again, there is no evidence before the Court of what occurred at the Tribunal hearing other than the Tribunal’s references to it in its decision record.
On the evidence, the Tribunal put its concerns to the applicant about the claimed events of 1998. He did not respond that he was nervous or under significant pressure. Nor was any such claim given in explanation by the applicant, or his representative, in the three weeks he was given to provide further material to the Tribunal.
In all, no arguable case arises as a result of ground two.
At a show cause hearing pursuant to Part 44 of the FCC Rules, the applicant is confined to the grounds of the application (r.44.13 of the FCC Rules).
However, I did consider whether, in the circumstances, it is in the interests of justice to dispense with r.44.13 of the FCC Rules pursuant to r.1.06 of the FCC Rules.
In this light, I note that in his written submissions, the applicant asserts that ([18](a) of the applicant’s written submissions):
“There was no evidence or adequate facts to draw a conclusion before the Tribunal to support its finding that there was no chance that the applicant will suffer persecution on the basis of that part of the claim.”
No arguable case arises from this submission such as to cause the Court to intervene.
First, there was evidence before the Tribunal on which to base its conclusion. The Tribunal relied on its assessment of the applicant’s own evidence, and the relevant country information before it.
Second, the Tribunal is not required to provide evidence to positively refute an applicant’s claims to protection (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187]). Relevantly, the Tribunal’s obligation was to give the applicant a fair opportunity to make his claims and give evidence, and to reasonably assess what was before it.
The Tribunal gave reasons probative of what was before it as to why it could not reach the requisite level of satisfaction, such that the applicant met the criteria for the protection visa. The Tribunal’s decision did not lack any evident and intelligible justification (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76]).
Conclusion
Neither the grounds, nor the applicant’s submissions, raise any arguable case. In the circumstances, it is appropriate to dismiss the application pursuant to r.44.12(1)(a) of the FCC Rules. I will make the appropriate order.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 9 May 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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