Aje17 v Minister for Immigration

[2017] FCCA 1458

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJE17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1458

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 65, 473CB, 473DC

AJE16 v Minister for Immigration [2017] FCA 290
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
DBB16 v Minister for Immigration & Anor [2017] FCCA 375
DZU16 v The Minister for Immigration (2017) FCCA 851
Minister for Immigration v SZQRB (2013) 210 FCR 505
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v SZJSS (2010) 243 CLR 164
SZSHF v Minister for Immigration [2014] FCA 237
SZSYI v Minister for Immigration [2015] FCA 1276

Applicant: AJE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 269 of 2017

Judgment of: Judge Driver

Hearing date: 23 June 2017

Delivered at: Sydney

Delivered on: 23 June 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr Leerdam of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 269 of 2017

AJE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 6 January 2017. The Authority 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 Authority on them are set out in the Minister’s outline of legal submissions filed on 16 June 2017. 

Background

1. The applicant is a male citizen of Nepal born on 15 July 1987.[1] He arrived in Australia as unauthorised maritime arrival on 20 December 2012.[2]

   [1] Court Book (CB) 64.

   [2] CB 28.

2. The applicant applied for a Safe Haven Enterprise visa (SHEV) on 12 May 2016.[3]

   [3] CB 8 - 51.

3. On 12 October 2016, the applicant was invited to attend a SHEV interview with the delegate on 2 November 2016.[4] The applicant attended the interview and provided oral evidence.

   [4] CB 69 - 81.

4. On 6 December 2016, the application was refused by the delegate.[5]

   [5] CB 83 - 86.

5. On 9 December 2016, the application was automatically referred to the Authority.[6] The applicant provided written submissions to the Authority by letter dated 21 December 2016.[7]

   [6] CB 205 - 213.

   [7] CB 214 - 219.

6. On 6 January 2017, the Authority affirmed the delegate's decision.[8]

   [8] CB 221- 234.

The applicant's claims

1. The applicant made the following claims for protection:

   a)the applicant owned a dairy related business in Nepal.

   b)the applicant was initially friendly with the Terai Tigers (TT), a terrorist group, and he provided them with accounting services. However, they began blackmailing him for payment and made threats on his life if he missed a payment. The applicant thought they were going to kill him.

   c)the applicant relocated to Kathmandu, however, the TT were still able to locate him and continued making threats.

   d)the applicant approached a police station to make a complaint, however, when the police asked for the location of the TT, he became fearful they were corrupt and would collude with the TT.

   e)the applicant sold his business and relocated to Kathmandu, where he stayed for two months before retaining an agent to obtain an employment visa to work in Malaysia.

   f)the applicant fled Nepal for fear of his life as the TT are throughout Nepal and there was nowhere that he would be safe.

The decision of the Authority

1. The Authority had regard to the applicant's claim that he was denied procedural fairness by the delegate and listened to the SHEV interview. The Authority noted that the applicant was put on notice by the delegate that the SHEV interview was an opportunity to raise all of his claims and also to provide evidence in support of his claims. The Authority also acknowledged that this was also supported by correspondence sent to the applicant, which invited him to attend the SHEV interview. The Authority stated it was not duty bound to obtain new evidence from the applicant, under s.473DC of the Migration Act 1958 (Cth) (Migration Act).[9]

   [9] Authority Decision (AD) at [6].

2. The Authority accepted that country information cited by the delegate and a Department of Foreign Affairs and Trade (DFAT) report, generally supported the applicant's claim that the TT is an organisation which engages in extortion.[10]

   [10] AD at [10].

3. The Authority accepted that the applicant obtained a Malaysian working visa and went to Malaysia, using a genuine Nepali passport in his name.[11]

   [11] AD at [11].

4. The Authority considered inconsistencies in the applicant's claims between the entry interview conducted by the Department on 5 January 2013 and the SHEV interview conducted on 2 November 2016 and made a finding that the inconsistencies and movements of the applicant adversely impacted and undermined the applicant's credibility.[12]

   [12] AD at [13]-[16]

5. During the entry interview, the applicant claimed he fled Nepal because he had refused to make payments to the TT and he had been placed on a blacklist. During the SHEV interview, the claim shifted and the applicant claimed that although he initially had a good relationship with the TT, they soon began to extort him for larger sums of money. The Authority noted the inconsistency as to whether the applicant had or had not made any payments and whether the applicant was on blacklist undermined the applicant's credibility.[13]

   [13] AD at [13].

6. The applicant was asked why he chose to go to Malaysia rather than India by the delegate. The applicant had acknowledged during the SHEV interview that his father was living in India and had advised him not to come to India, but to go “somewhere else better”. The applicant further stated that he sold his business and relocated to Kathmandu for two months while he obtained a visa to work in Malaysia. The Authority did not consider these to be actions suggesting the applicant was fleeing harm, noting the applicant could have taken a much shorter and easier route and fled to India,[14] and did not support the applicant's claim he fled because of extortion by the TT.

   [14] AD at [14].

7. The Authority considered the applicant's evidence that he had made a complaint to the police to also be inconsistent. In the SHEV application, the applicant claimed he made a complaint to police but became fearful the officers were corrupt when the police asked for addresses. During the SHEV interview, however, the applicant claimed he was fearful because he assisted the TT, against the law, by providing accounting services. In either scenario, there was little to be achieved by the complaint and the Authority noted this aspect of the applicant's evidence was “very confusing''.[15]

   [15] AD at [15].

8. The Authority explicitly rejected the entirety of the applicant's claims relating to the applicant's claims of extortion, threats of harm by the TT, that the applicant relocated to Kathmandu or   Malaysia to escape harm or had in fact made any complaint to police. The Authority considered the applicant had fabricated his claims as a basis upon which to apply protection.[16]

   [16] AD at [16]

9. A complementary protection assessment was also undertaken by the Authority. In assessing the applicant's claims individually and cumulatively, the Authority was not satisfied the applicant would face a real risk of harm, at [21]. The Authority noted it was bound by Minister for Immigration v SZQRB[17] and that the applicant's submissions did not provide any reasons upon which to distinguish the application of SZQRB from the present matter.

   [17] (2013) 210 FCR 505 (SZQRB)

Present proceedings

1. These proceedings began with a show cause application filed on 30 January 2017. The applicant continues to rely upon that application.  The grounds in the application are:

   1.The Immigration Assessment Authority erred in its decision that no threat posed and applicant fear for his life and harm the Terai Tiger if he returns to Nepal.

   2.The Immigration Assessment Authority erred in its decision by not giving enough consideration to the applicant well-founded fear for persecution.

   3.The Immigration Assessment Authority denied the applicant procedural fairness by reaching adverse conclusion that the applicant claims of harm from Terai Tiger were not well founded.

   4.The Immigration Assessment Authority erred in its decision that at paragraph - 10 accepted the existence of Terai Tiger and its criminal activities including extortion and still arrived on conclusion that the applicant does not meet definition of s. 36 (2) (a). The IAA has not considered this aspect and made factual and legal error.

   5.The Immigration Assessment Authority erred in its decision by not considering country information and applicant personal circumstances and not applying provision of complementary protection as prescribed under s 36 (2) (aa).

   6.The Immigration Assessment Authority erred in its judgment that the applicant does not meet the complementary protection criteria and accordingly IAA made legal error.

   (errors in original)

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me the court book filed on 5 May 2017.  Only the Minister prepared written submissions in accordance with procedural orders made by a registrar. Those submissions were read to the applicant by the interpreter before I came on the bench. 

3. I invited oral submissions from the applicant after reminding him of the grounds of review advanced in his application.  He took issue with the Minister’s submissions at [13] concerning the apparent inconsistency between the applicant’s claims at his entry interview and those made at the interview before the delegate.  The applicant asserts that there is no inconsistency and sought the opportunity to submit a transcript in order to advance that assertion. 

4. There are a number of difficulties with that request.  The first is that the applicant was given the opportunity in the registrar’s procedural orders to provide a transcript and has not done so to this point.  He asserts that he only recently obtained the sound recording of what I understand to be the SHEV interview and a transcript will take some further time.  A further difficulty is that when I took the applicant to the Authority’s reasons at [13][18] I pointed out to him that the Authority’s statement of what he said at the SHEV interview was entirely consistent with what he said he said.

   [18] CB 227

5. The difficulty was that there was an apparent inconsistency with what he stated at his initial entry interview.  It is not apparent to me that there is any sound recording of that interview.  The Authority relied upon the record of that interview available to it, and the finding of inconsistency was available to the Authority on the material before it. 

6. During oral argument, I raised with the Minister’s solicitor the applicant’s request for an interview before the Authority.  That request is set out in the applicant’s submission, reproduced at CB 214 to 217.  The Authority deals with it at [5] and [6] of its reasons.[19] 

   [19] CB 225.

7. In DZU16 v The Minister for Immigration,[20] I dealt with the Authority’s code of procedure in detail and pointed out at [37] the importance of s.473DC(3) of the Migration Act. In that judgment, I found, on the particular facts of that case, that there had been an unreasonable failure by the Authority to consider the exercise of the powers conferred by that section. This case is readily distinguishable.

   [20] (2017) FCCA 851 (DZU16)

8. Critically, the Authority did consider conducting an interview because it was requested to do so.  The reasons for the Authority rejecting the request are not unreasonable.  In the present case, in contrast to DZU16, there was no new information or issue that might have supported the conduct of an interview.  The applicant was simply seeking a further opportunity to address the existing known issue of his credibility. 

9. The applicant had no other submissions to make in relation to his application.  The grounds in the application are otherwise dealt with in the Minister’s submissions, which I agree with. 

Ground 1 and 2

1. The Minister submits that grounds 1 and 2 seek impermissible merits review of the Authority's findings.  I agree. It is well established that this Court cannot review the merits of the Authority’s decision.[21]

   [21] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

2. The Authority considered each of the applicant's claims for protection and, based on the evidence before it, concluded that they were fabricated to claim protection, at [16]. As per Minister for Immigration v SZJSS,[22] the weight to be given to evidence is a matter for the Authority and the applicant has not established any error in this regard.

   [22] (2010) 243 CLR 164

3. While findings of credit are not immune from judicial review as the Full Federal Court has made clear in CQG15 v Minister for Immigration and Border Protection,[23] the Authority provided evident and intelligible reasons for rejecting the applicant's claims.[24] There is nothing in the Authority's factual findings that reveals a jurisdictional error of the kind found in CQG15 at [15]. Having found the applicant's claims were not credible, it was plainly open to the Authority to reject those claims, and in the absence of other evidence in support of the claims, to find the criteria in s.36(2)(a) and (aa) of the Migration Act were not met.[25]

   [23] [2016] FCAFC 146 (CQG15)

   [24] see [13] - [16]

   [25] AJE16 v Minister for Immigration [2017] FCA 290 at [20]

Ground 3

1. Ground 3 alleges that the applicant was denied procedural fairness by reaching adverse conclusions that the applicant’s claims of harm from the Terai Tigers were not well founded.  This ground should be understood as seeking impermissible merits review by challenging the Authority’s factual conclusion that the applicant’s claims to fear harm were not credible and which were rejected as a result.

2. Further, I accept that the Authority properly applied Part 7AA, Division 3 of the Migration Act. In particular, it considered material referred by the Minister pursuant to s.473CB of the Migration Act.

3. In addition, in referring to the earlier opportunity for the applicant to provide evidence at the SHEV interview, the Authority noted at [6] that there was discussion by the delegate with the applicant about “the findings he disagrees with”. 

4. The Authority noted the applicant was told that any information he provided “prior to a decision being made [by the delegate] would be considered” and further that the Authority would only have regard to new information in exceptional circumstances. 

5. Section 473DB(1) compels the Authority, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers by considering the information referred by the Minister to the Authority under s.473CB of the Migration Act “without accepting or requesting new information” and “without interviewing the referred applicant”.

6. Section 473DC(1) permits the Authority, subject to Part 7AA, to “get any documents or information” (the “new information”) that was not before the Minister when the Minister made the decision under s.65 and which the Authority considers may be relevant. Section 473DC(2) confirms the discretionary nature of the power in s.473DC(1) by providing that the Authority:

   does not have a duty to get, request or accept any new information whether the [Authority] is requested to do so by a referred applicant or by any other person, or in any other circumstances.

7. This construction is confirmed in DBB16 v Minister for Immigration & Anor[26] where, at [28], I stated:

   If the Authority were compelled to invite an applicant to an interview merely because his or her credibility is called into question, the result would be the Authority generally coming under an obligation to issue an invitation, as adverse credit findings are made in many cases. That would not only be inconsistent with the text of s.473DC(2), but it would also defeat the purpose of the Fast Track Application Process.

   [26] [2017] FCCA 375

Ground 4

1. Ground 4 alleges that the Authority erred in that it accepted that the TT existed and country information supported the applicant's claim they were engaged in criminal activity, however it found that the applicant did not meet s.36(2)(a) of the Migration Act.

2. This ground misunderstands the Authority’s statement at [10] of its decision to be a finding accepting the applicant's protection claims, as opposed to an acknowledgement that the applicable country information was “broadly supportive of the applicant’s claims” about the TT.

3. Despite such an acknowledgement statement, it remained for the Authority to be persuaded that his individual claim of harm should be accepted. The Authority rejected the applicant's claims that he and his family were extorted by the TT, at [13]-[15]. It further rejected that he escaped to Kathmandu or Malaysia to avoid harm and he complained to police about the TT, at [16].

Grounds 5 and 6

1. Grounds 5 and 6 make allegations in relation to the Authority's assessment of the applicant's claims against complementary protection criteria in s.36(2)(aa).

2. At [22], the Authority relied upon its credibility findings in relation to its refugee assessment to find that the applicant would not face a 'real risk' of significant harm as per SZQRB. The finding was open to the Authority and it was correct to expressly reject the applicant's contention that the present matter was distinguishable on its facts.

3. The prior factual findings made by reference to the criterion in s.36(2)(a) were germane to the Authority's assessment of the applicant's claims to fear persecution under s.36(2)(aa). Accordingly, there is, in such a scenario, no need for any separate consideration of these same factual matters in relation to the complementary protection criterion.[27]

   [27] SZSYI v Minister for Immigration [2015] FCA 1276 at [46]-[47]; SZSHF v Minister for Immigration [2014] FCA 237.

Conclusion

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. Accordingly, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in in accordance with the court scale.  The applicant sought a reduction in costs, which I declined, and also sought the opportunity to pay by instalments.  I will not require payment by any particular time.

3. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 29 June 2017