AMR16 v Minister for Immigration

[2017] FCCA 2060

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMR16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2060

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Tribunal made adverse credibility findings – where Applicant claims apprehended bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36,424AA

Cases cited:

Minister of Immigration and Citizenship v SZIAI [2009] HCA 39

VFAB v Minister for Immigration [2003] FCA 872

First Applicant: AMR16

Second Applicant: AMS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 449 of 2016

Judgment of: Judge Hartnett

Hearing date: 5 July 2017

Delivered at: Melbourne

Delivered on: 5 July 2017

REPRESENTATION

The First Applicant: In Person

Solicitor appearing as Counsel for the First Respondent: Ms Ward

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 449 of 2016

AMR16

First Applicant

AMS16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 18 February 2016 which affirmed a decision of the delegate of the First Respondent (‘the delegate’) not to grant to the Applicants a protection (Class XA) visa (‘the visa’).

2. The grounds of application are as follows:-

   “1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.

   2. The tribunal has no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

   3. The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.

   4. The AAT has failed to investigate applicants claim, especially the grounds of persecution, in India. Therefore, the Tribunal decision dated 18^th February 2016 was effected (sic) by actual bias constituting judicial error.”

3. By response filed 12 May 2016, the First Respondent opposed the application on the basis that it did not establish any jurisdictional error in the decision of the Tribunal dated 18 February 2016.  Further, that the Applicants had not filed any evidence in support of their very serious allegation of bias.  I concur with the First Respondent’s submission, that the serious allegation of bias cannot be established and that there is no evidence before the Court to make out that ground.

4. On 20 July 2016, Registrar Buljan made various procedural orders by consent, which included that the Applicants file and serve any amended application, including any additional grounds of review with complete particulars of each ground, any affidavits and written submissions prior to the final hearing this day. The Applicants did not amend their application and nor did they file any written submissions.

5. The First Respondent filed written submissions which the Court is satisfied were served upon the Applicants. The First Respondent relies upon those written submissions.  The First Respondent also filed and served a Court Book and its contents are evidence in the proceedings. 

Background

1. The Applicants are a married couple.  They are citizens of India and come from Gujarat.  They first arrived in Australia on tourist (Subclass 676) visas on 28 January 2013.  They were booked to undertake a tour of Victoria, New South Wales and Queensland.  They did not join their booked tour, but moved straight to Mildura, Victoria. The Applicants lodged their protection visa application on 12 February 2013.  The Applicant wife was included in the application as a “Part D” Applicant, meaning that she was making no claims of her own, the outcome of her protection visa application being totally dependent on the outcome of her husband’s application.

2. The Applicants’ claims were provided in a statement attached to the protection visa application forms.  In summary, those claims are as follows:-

   a)in 1998 the Applicant husband (‘the husband’) joined his father’s business, Ateliyar Buildcon, and the business was doing well;

   b)in 2000 the business suffered a very heavy loss and had to be closed;

   c)from 2000 until 2003, the husband took a job in a private company to support his family and pay off his father’s business debts;

   d)in 2003, the husband established a new company with the same name, Ateliyar Buildcon;

   e)the business was doing well until 2005 when the government changed the tax laws.  This caused a rise in the cost of raw materials which, by October 2005, had placed the company in heavy financial crisis;

   f)in December 2005, the husband borrowed 25 lac of Indian rupees with interest to finance his company.  He provided his house and land documents as security;

   g)in February 2007 the husband had paid back 20 lac with interest;

   h)in April 2008, the husband attempted to pay back the remaining 5 lac with interest;  however, the money lender said he was required to pay 15 lac and refused to return his house and land documents. The money lender abused him, threatened to kill him and assaulted him;

   i)the husband then sought a friend’s assistance and offered to pay an extra 2 lac; however, the money lender refused to return the house and land documents at any cost. The money lender demanded more documents and threatened to harm his family if he did not provide them. The money lender told him to sell the property and pay a further 10 lac;

   j)the husband sought assistance from the police, however, the police told him they could not help him;

   k)the money lender threatened to kill the husband if he went to the police;

   l)the husband then wrote to the Police Commissioner but he did not receive a response;

   m)one day, when the husband was working at his office, the money lender and five goons assaulted him and damaged furniture.  He complained directly to the criminal court, but there was no process at the court and it was very delayed;

   n)due to the stress, his family situation deteriorated and he had to take care of his parents.  His family broke off relations with he and his wife;

   o)the money lender, being a Muslim, used community tensions to file false complaints against him;

   p)to get out of this situation, the Applicants travelled to London on student visas in November 2009;

   q)when they returned to India in April 2012, the money lender and his goons started to visit and threaten the Applicants daily;

   r)they then decided to travel to Australia.

3. On 21 February 2013, the Department of Immigration and Citizenship, as it then was (‘the Department’), sent a letter to the Applicants’ address for service, requesting further information. The letter also invited the Applicants to arrange an interview with the delegate of the Minister to discuss their claims. The Applicants responded to the request for further information, however failed to arrange an interview with the delegate.  On 24 October 2014, the delegate refused to grant the Applicants protection visas.  The delegate found the Applicants’ claims critically lacking in detail, with no supporting evidence as to the claimed fear of harm.

The Tribunal

1. On 18 November 2014, the Applicants applied to the then Refugee Review Tribunal for review of the delegate’s decision.  A copy of the delegate’s decision was provided with the review application.  On 19 January 2016, the Tribunal sent a letter to the Applicants, inviting them to attend a hearing scheduled before it on 16 February 2016.  On 16 February 2016, the First Applicant appeared before the Tribunal in Sydney via video conference with the assistance of a Gujarati interpreter.  The Second Applicant did not attend the hearing.

2. The Tribunal considered the issues in the case before it, were whether the Applicants were entitled to protection visas either as refugees or, if not, on complementary protection grounds, with a further issue being the husband’s credibility.

3. At the hearing, the husband told the Tribunal that his two children were currently residing with his parents and brother at his family home that was his residential address throughout all of the time he lived in India.  He then told the Tribunal his father had already died.  He said his children were living with his mother and brother.  He denied referring to his father as being alive at home, earlier in the hearing.  He then told the Tribunal his father had died 10 years ago.  The Tribunal said in its Statement of Decision and Reasons of 18 February 2016 (‘the Decision Record’) as to this that:-

   “…however, I note that he included his father as a living family member in his February 2013 protection visa application form (three years ago).”

4. The Tribunal set out at paragraph 14 of its Decision Record the following:-

   “Under the protocols of s.424AA, I invited (the husband) to respond to or comment on information as to his father that appeared in his tourist visa application:  a deed of partnership in Ateliyar-Buildcon dated 3 August 2008 between himself, his father (son of “Somabhai Patel”) and two others. This information indicated his father was alive seven and a half years ago and that he was a partner in Ateliyar-Buildcon.  I put to (the husband) that this information was potentially significant as, subject to comments or responses he might provide, it might go to whether I could rely on him as a witness in relation to the loan, the lender, the lender’s threats and their impact on him, his family and his business partners.  I told him that negative inferences as to his credibility could be the reason or part of the reason for affirming the delegate’s decision.  I duly informed the husband that he could ask for more time to respond and/or comment and I would consider any such request, but he said he would refuse to discuss his father.  I gave (the husband) a further chance to respond and he said he did not have a response.  He then said he was certain his father was dead in 2008 and that it was nevertheless possible his name was on the deed of partnership.”

5. At the hearing, the Tribunal put to the First Applicant its concern that it “seemed strange”[1] that the lender had left his family alone, despite the threats to the First Applicant, and had let the family continue to reside in the house covered by the title deed for so long, despite the First Applicant’s failure to repay the money owed.  The Tribunal also put to the First Applicant inconsistencies in his evidence in relation to Ateliyar Buildcon and questioned the Applicant in relation to whether, if his business partners continued to run the business in his absence, how the issues with the lender had impacted them.

   [1] Decision Record dated 18 February 2016 at paragraph 15.

6. The Tribunal said at paragraph 16 of the Decision Record the following:-

   “I was interested to know how the husband’s business partners had been affected by the behaviour of the lender.  He said he only ever had one business partner.  He also told me that Ateliyar-Buildcon completely folded up in 2009 before he went to the UK.  I put to him that this was not true according to information he provided in his protection visa application form where he said he was still a partner in the company in 2012 and 2013.  I asked him to tell me what occupation he claimed in his application for a tourist visa and he said he told the Department he was a partner in Ateliyar-Buildcon. I asked him why he was telling me something different from what he had said in his protection visa application form and he said he made a mistake when he told me the company was closed in 2009.  I asked him how he could make a mistake about such a basic fact in his personal history and he did not answer.  When I invited him to provide an answer to the question, he said, “Leave it.” He did not resolve the inconsistency.”

7. The Tribunal continued to put various matters to the First Applicant of concern to it, as set out in the Decision Record.  The Tribunal further put to the First Applicant the Tribunal’s concerns as to the reliability of his claims and invited the First Applicant to comment further.  The First Applicant said he had no further comment.  One of those matters covered by the Tribunal with the First Applicant is set out at paragraphs 18 and 19 of the Decision Record and is as follows:-

   “18.  I asked the husband how his mother and brother had been able to support his children. He said he sends money from Australia.  I asked him how he was able to send money from Australia and he said he is working here. I put to him that his visa is of a kind that does not permit him to work and he said he does work on a farm.  I asked him to comment on his not being permitted to work and he said, “Can we work here or not?”  I indicated that it seemed absurd for him to be asking me if he could work in Australia as he claimed to have entered on a class of visa that forbids him to work.  In reply, he said, “That’s right.”  He thus went from asking me if he is allowed to work in Australia to confirming that he knows he has no such permission.  In this way, he conveyed the impression of a capacity on his part to be a disingenuous witness at the Tribunal hearing.  I put to him that he is aware that he is not permitted to work in Australia and he said, “Yes.”

   19. I asked the husband if he had come to Australia for the purpose of working illegally and he said it was not the main reason.  I put to him that according to what he was now saying, it was nevertheless one reason for coming to Australia.  He said it was.”

8. Having regard to the evidence before it, the Tribunal found the Applicant to be “an utterly unreliable witness in this matter” and further that:-

   “The Applicant’s claims so lack credibility that it is not necessary to consider whether or not they are Convention-related.  In any event, I cannot see that any kind of Convention-related factor is an essential and significant factor in the harm claimed in this matter.”

9. The Tribunal found that the Applicant’s claims regarding the lender, the revised terms of repayment, the threats, the assaults and the retained title deeds to the Applicant’s family home to be entirely fabricated. 

10. The Tribunal found the Applicant had misled the Department with respect to his claims for protection so that he and his wife could commence working illegally in Australia as soon as possible.

11. Having considered the evidence before it separately and cumulatively and finding the evidence “overwhelmingly lacking in credibility”[2] the Tribunal was not satisfied the Applicant had a well-founded fear of persecution. It therefore found that he did not satisfy the Refugee Convention criteria under s.36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’). Having regard to the fact that the Applicant’s complementary protection claims relied on the same facts as his refugee claims, the Tribunal found the Applicant would not suffer significant harm on return to India and, therefore, that the Applicant did not satisfy the complementary protection criteria under s.36(2)(aa) of the Act. The Tribunal noted that the Second Applicant did not have protection claims of her own and the fate of her protection visa application was dependent on the fate of the First Applicant’s.

    [2] Decision Record dated 18 February 2016 at paragraph 26.

Consideration

1. It is clear that the Tribunal complied with its obligations under s.424AA of the Act at the hearing. There is no basis for that ground as alleged.

2. The Tribunal correctly set out the law relating to the criteria for a protection visa in attachment ‘A’ to its decision.  It correctly applied that law in assessing the Applicant’s claims and the adverse credibility findings of the Tribunal were open to it in respect of the First Applicant for the reasons given by the Tribunal.  It is not the function of the Court to conduct a merits review and there is no basis to ground 2 of the application.  Grounds 3 and 4 of the application are misconceived.  The Tribunal rejected the Applicant’s claims to fear harm in their entirety on the basis of identified credibility concerns open to the Tribunal to find, and the Tribunal was not required to consider whether such claims not accepted by it met the other “key elements” of the Convention definition.

3. The Tribunal had no duty to investigate and it was for the Applicant to put his case before the Tribunal. This was not a case where the Tribunal could be said to be under a duty to inquire in the sense that it failed to make an inquiry about a critical fact, the existence of which was easily ascertained.[3]

   [3] Minister of Immigration and Citizenship v SZIAI [2009] HCA 39, 25-26.

4. The Applicant made no attempt to particularise the very serious allegation of actual bias and nor provided any evidence to support such an allegation.  Further, there is nothing in the material before the Court to indicate apprehended bias and nor can any inference of bias be drawn from the mere fact of adverse findings in the Tribunal’s reasons.[4]

   [4] VFAB v Minister for Immigration [2003] FCA 872, 21.

5. The application has no merit. No jurisdictional error attends the decision of the Tribunal.  The application will be dismissed with costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  1 September 2017