AJO16 v Minister for Immigration

[2016] FCCA 2438

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJO16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2438

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to exercise its jurisdiction – whether the Tribunal failed to investigate all of the applicant’s claims – whether the Tribunal’s adverse credibility finding was valid – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)

Cases cited:

SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39

Applicant: AJO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 367 of 2016

Judgment of: Judge Smith

Hearing date: 30 August 2016

Date of Last Submission: 30 August 2016

Delivered at: Sydney

Delivered on: 30 August 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms C Saunders, DLA Piper

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 367 of 2016

AJO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review from a decision of the Administrative Appeals Tribunal made on 20 January 2016. The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The applicant is a citizen of India who arrived in Australia on 29 November 2010. He applied for a protection visa on 3 December 2010 on the basis that he was a dependent of the primary applicant, who was his wife.

2. That application was unsuccessful, both before the delegate and on review before the Refugee Review Tribunal[1]. The applicant applied for judicial review of the Tribunal’s decision in that respect and was unsuccessful in this court and on appeal to the Federal Court. His application for special leave to appeal to the High Court was also rejected.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

3. Following the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71, the applicant made a further application for a protection visa on 13 March 2014. In essence, his claims were that due to his wife’s involvement in Christian groups and activities in Kerala, they have been harmed and left India for that reason. He claimed that he would be harmed by Muslim radicals, both because he was a Christian and his wife was involved in certain Christian groups.

4. On 16 October 2014, a delegate of the Minister made a decision not to grant the applicant a protection visa. The applicant applied to the Tribunal for a review of that decision. The applicant attended a hearing conducted by the Tribunal on 19 January 2016 and the Tribunal made its decision on 20 January 2016.

Tribunal decision

1. The Tribunal found that the applicant’s evidence at the hearing was inconsistent and unpersuasive and found that he had fabricated his claims as to what had occurred in the past. It found, in particular, that although the applicant is a Catholic, he had manufactured his claims to have ever been sought or harmed as a result of his wife’s involvement in Christian groups. It did not accept that the applicant’s wife was sought in India as a result of her involvement in those groups.

2. The Tribunal did not accept that the applicant genuinely feared harm in India. It found that there was no real risk that the applicant would be sought upon his return to India, and did not accept that as an ordinary practicing Catholic there was a real risk that he would be sought or harmed upon return to Kerala. It did not accept that there was any institutional discrimination against Christians in that state and that the constitution prohibits discrimination against citizens on the basis of religion.

3. For those reasons, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence, of the applicant being removed from Australia that there was a real risk that he would suffer significant harm. For those reasons, it found that the applicant did not satisfy the criterion in sub-ss.36(2)(aa) and 36(2)(c) of the Migration Act 1958 (Cth). For those reasons it affirmed the decision of the delegate.

Consideration

1. The three grounds in the application for review were that the Tribunal constructively failed to exercise its jurisdiction, made an adverse credibility finding and failed to investigate the claim.

2. At the hearing, the applicant appeared unrepresented. He argued that the Tribunal erred by not taking the initiative in investigating his case. When asked by what he meant by “failed to investigate”, the applicant said that he was not able to give evidence because of the circumstances and that if the Tribunal had made any inquiry, he would have got justice. He also made certain claims about incidents that had occurred in India. However, each of those matters only raised factual issues which were matters for the Tribunal to determine.

3. The Minister submitted that the Tribunal was not under any obligation to conduct inquiries and that it was a matter for the applicant to put forward whatever material and evidence he had in support of his claims. The Minister also submitted that the applicant had every opportunity to do so, given that he must have been aware that his credibility was in issue from the reasons of the delegate’s decision.

4. The Minister is correct to submit that there is no general duty on the Tribunal to make inquiries or, as the applicant put it, to investigate his claims. The general obligation of the Tribunal is to review the decision of the delegate. There may be certain circumstances where it is unreasonable for the Tribunal not to use its powers of investigation. In Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 (“SZIAI”), the plurality said at [25]:

   Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. …

5. The plurality in SZIAI went on to note that it was unnecessary to examine those questions any further in that case. In these proceedings, I can see nothing to suggest that the failure by the Tribunal to make inquiries of its own affected its jurisdiction. There was no obvious inquiry about a critical fact that was easily ascertained. The applicant did not suggest any such obvious inquiry in oral submissions, but only suggested that had the Tribunal made any inquiry, he would have got justice. In my view, by conducting the hearing and asking the applicant questions about his claims and making findings based upon that evidence, as well as the other material placed before it, the Tribunal properly conducted its review of the delegate’s decision.

6. There was no requirement, for the Tribunal to make any further inquiries. As I understand the grounds in the application, they all turn on the argument that there was such an obligation to inquire and as I have rejected that argument, I also reject the remaining grounds. For those reasons, I can see no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 26 September 2016