AKQ15 v Minister for Immigration

[2015] FCCA 1209

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKQ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1209

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, ss.36(2(a), 36(2)(aa), 476, 477, 499

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: AKQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 978 of 2015

Judgment of: Judge Street

Hearing date: 7 May 2015

Date of Last Submission: 7 May 2015

Delivered at: Sydney

Delivered on: 7 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms A. Wong
DLA Piper

ORDERS

1. The application for an extension of time be dismissed.

2. The proceedings be summarily dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $1400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 978 of 2015

AKQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 4 March 2015 affirming a decision of the delegate not to grant the applicant Protection (class XA visa). 

2. The application identifies the following grounds:

   1. DIBP made error in making a decision:

   Case officer failed to understand my well-found fear. Change of religion is considered as high degree religious sin in India. Delegate did not go through information, which is available on Internet regarding torture and killings of innocent converted Christians who change their religion from Hinduism or Sikhism.

   2. Decision maker did not give weight to my family circumstances. I am practically orphan child without any support from family.

   3. Decision maker did not give weightage to my dedication towards Christianity.

   4. Refugee review tribunal just followed DIBP decision. RRT did not look at my case with fresh approach and make error in making decision against me.

   5. Refugee review tribunal did not regard evidence provided by me in support of my claims.

3. The applicant requires an extension of time under s.477. The grounds in the application for an extension of time are as follows:

   1. RRT SENT THE DECISION ON WRONG EMAIL ADDRESS AND RRT ADMITTED EMAIL BOUNCED BACK; SO RRT CALLED ME TO COLLECT RRT DECISION.

   2. I HAVE TO COLLECT COPY OF DECISION IN PERSON ON 2^ND APRIL 2015

4. The first respondent has moved for the immediate dismissal of the matter on the basis that the explanation for the delay is inadequate and that there is no arguable jurisdictional error. The application asserts that the RRT sent the decision to the wrong email address, the RRT admitted that the email bounced back and that the RRT called the applicant to collect the decision. The first respondent took the Court to the identified email address in the application for review at pg.92 of the Court Book and to the email that was sent at pg.112 by the Tribunal notifying the applicant of the decision. I am satisfied that it was the correct email address that is identified on pg.112. I am not satisfied that the email was sent to the wrong address. And I do not regard the explanation for the delay as satisfactory.

5. However, the merit of the application under s.477 in substance turns on whether the applicant, in fact, has an arguable jurisdictional case. I accept the first respondent’s submission that ground 1 of the application is clearly an impermissible challenge to the findings of fact made by the Tribunal. To the extent that ground 1 refers to the delegate, this Court does not have jurisdiction to review the delegate’s decision. There is nothing in ground 1 that discloses an arguable jurisdictional error. Grounds 2 and 3 are matters of challenge to weight and are, as such, an impermissible challenge to the merits of the matter which were within the exclusive domain of the Tribunal and are an impermissible challenge to the findings of fact made by the Tribunal.

6. In relation to ground 4, it is clear that the Tribunal independently and impartially brought its mind to the determination of the matter on its merits and that a reasonable person would not have concluded otherwise.  Adverse findings by the Tribunal do not give rise to an arguable case of bias.  It was a matter for the Tribunal to make credit findings in relation to the applicant’s claims and evidence.  I am satisfied that the adverse findings in this case were open to the Tribunal and cannot be said to lack an evident and intelligible justification and that ground 4 fails to identify any arguable jurisdictional error. 

7. In relation to ground 5, I accept the respondent’s submissions that it is clear from the Tribunal’s decision and in particular paras 8 and 9 that the Tribunal has had regard to the evidence provided by the applicant in support of his claims and that ground 5 fails to disclose any arguable jurisdictional error. 

8. This is a matter in which the applicant was found to be a citizen of India, and his claims were assessed on that basis. The applicant applied for a protection visa on 13 November 2013, by which the application was refused on 3 April 2014. The applicant applied for review on 7 May 2014. The Tribunal carefully identified the relevant law and the ministerial direction under s.499, to which the Tribunal was required to have regard. The Tribunal carefully set out the applicant’s claims and evidence and also listened to the audio recording of the protection interview with the applicant.

9. The applicant appeared before the Tribunal on 3 March 2015 to give evidence and present arguments.  It is clear from the summary of the hearing that the Tribunal put to the applicant its concerns in relation to the applicant’s credibility, and relevantly the Tribunal made the following adverse findings:

   15. In the present case I have strong doubts as to the credibility of the Applicant’s claim to have converted to Christianity since his arrival in Australia, for the following reasons:

   In contrast to the thrust of his protection visa application, at the hearing he appeared to play down the significance of his alleged conversion, advancing it only as a reason which would be seized on by his uncle to cause him harm. His evidence about his contacts with organised Christianity was notably vague, lacking in circumstantial detail and at a number of points implausible. He suggested he had visited a number of churches, at various locations, with some regularity but produced no direct evidence of any of this church-going. His information about his pattern of attendance at these churches was highly generalised and uninformative. He agreed that he had never witnessed a baptism but claimed to have been baptised by a Catholic priest, on only their second meeting, in a ceremony in which he recited an oath the content of which he was unable to remember. He suggested that as a further step in the process of baptism he and others stood on a stage in the Catholic Church in Blacktown and briefly spoke about Jesus.

   As put to him at the Tribunal hearing in accordance with section 424AA of the Act, the information he provided in response to questions put to him in his protection visa interview concerning Christian belief and practice indicates that he knew little or nothing about these matters. Among these deficiencies he was unable to remember any of the Biblical stories about Jesus, clearly did not know the meaning of baptism and could provide only the briefest outline of the nature of worship in a church. Given the opportunity to respond or comment he said only that his uncle would use his Christian conversion as an excuse to harm him.

   The documents he has provided from two friends, Mr Rod Dingle and Ms Sheenal Shivangani do little to support his claims of Christian conversion. As put to him in the hearing it is difficult to understand why Mr Dingle would have made no reference to his actual conversion to Christianity in a letter written some days after this presumably important event. It is also difficult to understand why Ms Shivangani would state that he had ‘.. often expressed his concerns regarding his conversion to the Christian faith and the segregation, social stigma and threat to life that he has had to face within his community in his birth place in India.’ I have considered the Applicant’s explanation for this, to the effect that Ms Shivangani was referring both to his conversion in Australia and to the mistreatment he suffered from his uncle in India, but I am not satisfied this plausibly explains her comment given that he has not claimed that while he was in India his uncle ever threatened to kill him or was responsible for him experiencing segregation or social stigma. I note as well that neither Mr Dingle nor Ms Shivangani claim in the letters to be practising Christians or to have had any direct experience of the Applicant’s worship or other religious activities. It appears that they know about these things only because the Applicant himself has told them. I am not satisfied that any significant evidentiary weight can be placed on these documents.

   As put to the Applicant at the hearing, the statutory declaration he submitted provides no independent support for his claims, given that it is his own document. I do not accept that it was witnessed by a priest or that a priest has had anything to do with its creation. Nor am I satisfied that significant weight can be placed on it in support of the Applicant’s claims about his conversion to Christianity.

   Finally, I am not satisfied as to the authenticity of the documents which are said to be an exchange of emails between the Applicant and his uncle in India. For the reasons explained at the hearing I consider that these have most probably been composed by the same person, whether or not that is the Applicant himself, and I do not accept that any weight can be placed on them in support of his claims either as to his alleged conversion to Christianity or the threat said to be posed to him by his uncle.

   16. … As I do not accept that he is a Christian now and there is nothing in the information before the Tribunal to indicate that he will convert to Christianity in the future, I am not satisfied there is any reason to believe he would suffer harm of any kind on return to India for the Convention reason of his religion.

   17. The Applicant now identifies as his main fear that his uncle will seriously harm him, and may kill him, because he believes the Applicant will seek to regain his inheritance rights to property belonging to his late father. I have concerns about the credibility of this claim, for the following reasons;

   His account of the death of his parents was notably vague and confused, suggesting first that the cause of death was heart attacks and second that it was an accident, before he settled on the account of poisoning by his mother which tallies with the claim in his protection visa application. I gained a clear impression from the sequencing of these remarks that had simply forgotten about the account involving poisoning until he was suddenly reminded of it when pressed about the plausibility of his variant claims that both died from heart attacks or that they were both in an accident. I find that this casts doubt on the credibility of his claim to have been adopted by his uncle, including the detail that his uncle, unlawfully or otherwise, has taken over property rightfully belonging to his father. I note that his evidence about this property and its disposal was also notably vague despite the significance the issue could reasonably be seen as having for him, if it did exist, through his own economic interests in the inheritance and the fact that it was a reason for his uncle to wish to kill him.

   These doubts are reinforced by the fact that the Adoption Deed he submitted to the Department appears to be dated 5 November 2004 rather than in 1995 when he claims the adoption actually took place. It is difficult to understand why such an adoption would not have been formalised at the time. It is equally difficult to understand why his uncle would go to the trouble of formalising it nine years later, at a point when the Applicant was seventeen years old. I am not satisfied that the Applicant provided any cogent explanation for this discrepancy when he was invited to comment on it at the hearing.

   As also put to him at the hearing, it is difficult to reconcile his claims of unremitting enmity by his uncle with the fact that the same person gave him board and lodging in his own house, paid for his education at a boarding school up to 2006 and then provided the very large sum of money which would have been required to send him to study in Australia. He claims that his uncle cut off this financial support after only six months, and that he was able to pay for his continued study over the next few years by working here. He also suggested that his uncle was pressured into funding his study by other people and that, in any case, he had an ulterior motive in wishing to get him out of the way in case he tried to reclaim his father’s property. I am not satisfied these interpretations are accurate however, and I consider that the actions of his uncle in providing for him over many years suggest a general concern and commitment for his welfare. In this context I also note that if his uncle’s aim was genuinely to ensure that he remained in Australia, it would clearly not have been in his interests to cut off financial support after only six months, a course of action which might very well have resulted in the Applicant being quickly returned to India when his student visa was cancelled.

   His claimed fear of harm for this reason was not mentioned at any point in his protection visa application and it appeared for the first time in his protection visa interview. It is difficult to understand why, in speaking at some length about the violence he had suffered from his uncle, he would not have made at least a passing reference to the property issue. I am not satisfied that he offered any cogent reason for the late appearance of the claim when this issue was put to him for comment at the hearing.

   Finally, the Applicant has not explained what grounds he has for fearing that his uncle is prepared to go to the extreme of killing or otherwise seriously harming him if he returns to India, even if his uncle does anticipate that he would seek to regain his inheritance. There is nothing in his claims to indicate that his uncle ever tried to kill him previously for this reason, despite the fact that he had reached the age of twenty one years before he left India. Nor does he claim to have received any death threat from his uncle in the more than six years he has been in Australia. He does not explain why his uncle would not seek to contest any claim he might make through the normal mechanism of the civil law or some less formal kind of negotiation and settlement. Without more, it is difficult to accept that his uncle, a person who is said to be an established businessman carrying out government contracts, would be prepared to expose himself to the drastic penalties of the criminal law by murdering his adoptive son over such a matter.

   18. Given these considerations I am not satisfied as to the credibility of the Applicant’s claim that his uncle intends to kill or otherwise seriously harm him on return to India due to a fear that the Applicant would seek to regain property owned by his late father and rightfully his.

   19. In the light of all the information before the Tribunal I am not satisfied that the Applicant has genuinely converted to Christianity from Sikhism.

   20. … To the extent that he may have been linking these changes in his appearance and thinking to his claimed conversion to Christianity I am not satisfied, as explained above, that he has in fact undergone such a conversion. I am not satisfied that he genuinely fears harm in India as a result of his embrace of Australian culture or his abandonment of some traditional Sikh cultural practices. Nor, given that he apparently avoided any harm for shaving his hair and dispensing with a turban over an extended period before he left for Australia, am I satisfied there is a real chance he would suffer harm for this reason.

   21. The Applicant does not claim to fear harm in India for any other reason and no other reason is apparent on the face of the information before the Tribunal.

   22. I am not satisfied that the Applicant has a well-founded fear of persecution because of his religion or for any other Convention-related reason should he return to India, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.

   23. For the reasons given above, I am not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the Applicant does not satisfy the criterion set out in s.36(2)(a).

   25. In the light of the information before the Tribunal I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to India, there is a real risk he would suffer significant harm as defined in subsection 36(2A) of the Act.

10. It was in those circumstances that the Tribunal concluded the applicant was not a person in respect of whom Australia had a protection obligation and that the applicant failed to satisfy the criteria under s.36(2(a) or 36(2)(aa). I am satisfied that the applicant had a genuine hearing. I am satisfied that the application fails to disclose any arguable jurisdictional error. I am satisfied that the adverse findings to the Tribunal were open on the material before the Tribunal and that the adverse findings cannot be said to lack an evident and intelligible justification.

11. In considering the application of the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) I take into account the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. For the above reasons, the proceedings are clearly doomed to failure. The applicant sought an adjournment in order to obtain legal advice. There is clearly no utility in granting an adjournment if the proceedings are doomed to failure, as it will only unnecessarily add to the costs of the parties and utilise limited Court time. For the reasons given, I am clearly satisfied the proceedings are doomed to failure and there is no utility in granting an adjournment. I am clearly satisfied the proceedings have no reasonable prospect of success. I dismiss the application for an extension of time. I summarily dismiss the proceedings.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 May 2015