AOJ15 v Minister for Immigration

[2016] FCCA 3040

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOJ15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3040

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Legislation:

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

Cases cited:

Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZTGV v Minister for Immigration and Border Protection (2015) 318 ALR 450; [2015] FCAFC 3

First Applicant: AOJ15

Second Applicant: AOK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1112 of 2015

Judgment of: Judge Barnes

Hearing date: 10 November 2016

Delivered at: Sydney

Delivered on: 10 November 2016

REPRESENTATION

The Applicants: In Person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The Applicants pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1112 of 2015

AOJ15

First Applicant

AOK15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 1 April 2015.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants protection visas.  The Applicants, husband and wife and citizens of India, arrived in Australia on visitor visas in December 2012.  They applied for protection visas in February 2013. 

2. The application was refused and they sought review by the Tribunal.  The First Applicant attended a Tribunal hearing.  His wife did not give evidence at the hearing.

3. In its reasons for decision the Tribunal set out the background to the application and the law.  It recorded that the Applicant claimed to fear harm from his wife’s ex‑husband and that she claimed protection as a member of her husband’s family unit. 

4. In a statement in support of his protection visa application, the Applicant described the circumstances in which he met his wife.  He claimed her ex-husband had threatened her parents, filed a kidnapping case against him and hired a contract killer and that while he and the Second Applicant were hiding in a village she hired a lawyer and filed for divorce and that they married in 2007.

5. The Applicant claimed that they faced difficulties thereafter and, fearing for their safety and desperate for work, took the “risky decision” to move to Ahmedabad to take a job with a finance company.  He claimed that he worked there for several years without consequences, but that one day a customer to whom he had denied a loan went to the local BJP office to seek political help and that his wife’s ex‑husband was in the office. 

6. The Applicant claimed that later that night, while he and his wife were at a friend’s party, they received calls from friends telling them that people with guns had come looking for him and had ransacked the house.  The next day he was told that people were waiting for him outside his office.  Fearing for his life, he and his wife fled to Australia. 

7. The Applicant gave the Tribunal a copy of a translation of a divorce agreement between his wife and her ex-husband dated 2 January 2007 and a copy of a complaint to the police by his wife dated 1 January 2007.

8. The Tribunal accepted that the Applicants married on 14 May 2007.  However it found that many inconsistencies in the Applicant’s evidence led it to find that he was not a credible witness. 

9. The Tribunal summarised the Applicant’s claims in the statement accompanying his protection visa application as follows:

   In the visa application, the first applicant made the following claims.  He met the second applicant when she visited her mother.  She had warned her ex-husband many times before leaving him.  He went to her parents’ residence to kill them.  They knew he was coming.  The first applicant took her to the village and later moved to another state.  Her ex-husband dashed her father to the ground and kicked when asked to leave.  All their valuables were ransacked and he grabbed his hair and warned her parents.  Her ex-husband found out about the first applicant after a few days and went to the first applicant’s residence looking for the second applicant.  He filed a case for kidnapping against the first applicant.  The local police went to the first applicant’s residence looking for the second applicant.  Her ex-husband hired a “contact” kill to kill both applicants.  They were hiding in a village and hired a lawyer to fire for divorce.  They married in 2007.

10. However the Tribunal recorded that in contrast, at the hearing the Applicant had said:

    At the hearing, the first applicant said that he met the second applicant approximately a couple of months before he married her.  She was from his maternal uncle’s village.  The first applicant had heard from his maternal uncle that there is a girl who had been divorced for approximately four or five months and had no-one to take care of her.  He arranged a meeting to see and meet her at her place.  For two days the first applicant observed her nature.  He thought they would be good together and decided to get married.  The marriage took place with permission of all family members, the first applicant and the second applicant.  After agreement had been reached, members of both families went ahead to make the necessary arrangements.  

11. The Tribunal had regard to the fact that the written claims supporting the protection visa application were that the First Applicant met the Second Applicant before she was divorced and that he was “instrumental in protecting her from her ex‑husband, and then securing the divorce”, whereas at the hearing he had claimed that his wife had been divorced for four or five months when he met her at the suggestion of his uncle.  The Tribunal found that these accounts were “fundamentally inconsistent”.

12. In addition, the Tribunal found that the Applicant’s accounts in the visa application and at the Tribunal hearing of the difficulties caused by and the incidents involving the ex‑husband after the Applicants’ marriage were “different”.  It set out these accounts and the differences therein in some detail.  It found that the Applicant’s reference in the statement accompanying his protection visa application to moving to Ahmedabad to start to work for a company in 2010 was inconsistent with the addresses in the protection visa application which showed that he had lived in Ahmedabad from 2001 and was also inconsistent with his evidence at the hearing that, apart from studying in another place in 2006 and fleeing to two other states for short periods of 10 to 15 days, he had lived his whole life in Ahmedabad until coming to Australia.  The Tribunal also found the implication in the visa application that the Applicant had been unemployed for a period of time was inconsistent with his clear evidence about his employment at the Tribunal hearing.  The Tribunal had regard to the fact that while the Applicant claimed in his written statement that after 2010 he was more confident and started moving freely until a client’s encounter with the wife’s ex-husband in a BJP office, at the Tribunal hearing he had claimed that the ex‑husband harassed them mentally, came to their home and sometimes to his work, and that this had started just seven days after they were married. 

13. The Tribunal had regard to the fact that, when pressed to tell the Tribunal about particular incidents, the Applicant had described an incident in which the ex‑husband had attacked him at a friend’s party and on the way home and had slapped him and his wife.  He claimed he had informed the police, who did not take out a First Incident Report.  That incident was said to have occurred before his wife’s passport was issued.  The Applicant also told the Tribunal that he was attacked by the ex‑husband and other people when going to work on a motorbike in 2009 and 2010 and that there were incidents before this too, but that after that time the frequency increased.

14. However the Tribunal recorded that it put to the Applicant that his account in his application was completely different to what he said at the hearing.  According to the Tribunal the Applicant then said the departmental interview was soon after arrival and he remembered every incident, that what he told the interviewer was true and that what was in the application was true.  He also claimed he was mentally disturbed.  The Tribunal did not accept these explanations in circumstances where the accounts given were quite different.  It was of the view that forgetting details was different from giving different accounts.  The Tribunal also found that the Applicant’s explanations were inconsistent as, on the one hand, he said he was not mentally ready when he applied for protection and the interview was held straight away, but on the other hand he also said that because the interview was soon after his arrival, he remembered every incident. 

15. The Tribunal considered the Applicant’s claims that he had fled to two other states for about 10 to 15 days – although he could not remember when – but returned to Ahmedabad because of the weather and difficulties of adjusting to the style of living and the food and language.  The Tribunal found that staying away for a mere 10 to 15 days before returning to Ahmedabad for the reasons he gave was inconsistent with the Applicant’s claims to fear serious harm from the ex‑husband and also inconsistent with his written claim that he had studied for a year in 2006 in one of those states.  The Tribunal was of the view that he must have been able to adapt to that environment. 

16. In addition, the Tribunal had regard to inconsistencies in the Applicant’s evidence about his son, including the son’s age when he was said to have been sent to live in a hostel in Rajasthan (where the Applicant said the child was studying).  The Tribunal stated that assuming the child was born in 2009, as claimed in the application and eventually confirmed at the hearing, it did not accept he was sent to Rajasthan at the age of two in 2011 (or three in 2012), particularly as the Applicant claimed at the hearing that he sent his son to the hostel when he was six or seven and later said when he was five and a half years old.  The Tribunal observed that the child could not have been more than five at the time of its decision.  In light of these inconsistencies the Tribunal did not accept that the Applicant’s son was being looked after in a hostel in Rajasthan.  The Tribunal had regard to the fact that the Applicants had not brought the child to Australia, despite the Applicant’s expression of concern about his safety.  It did not accept the explanation that they had not had enough time to get the child a passport, as this was inconsistent with the Applicant’s evidence about when and the circumstances in which he obtained his wife’s passport so that she could accompany him to Australia.  It observed that her passport was issued in February 2012 but they did not leave India until the end of December 2012.  The Tribunal did not accept that 10 months was not enough time to obtain the child’s passport and, in any event, was of the view that the Applicant could have applied for his son’s passport when he applied for his wife’s passport. 

17. The Tribunal found that the Applicant’s evidence about his son’s whereabouts and the reason they did not bring him to Australia was fabricated in response to questions from the Tribunal and was not true. 

18. The Tribunal did not accept that the Applicant had satisfactorily explained the delay in coming to Australia after he and his wife obtained their passports.  It also had regard to the one month delay between the issue of visitor visas and travel to Australia.  It found that if the Applicant was desperate to escape from the threat of harm the ex‑husband posed, he would have made arrangements to be implemented as soon as the visas were granted.

19. The Tribunal considered the documents provided to it after the Tribunal hearing.  It noted that the divorce agreement stated that the date of the wife’s divorce from her ex‑husband was 2 January 2007 and that it referred to a case or complaint lodged at a police station in which the wife was the complainant.  It noted that a term of the divorce was that the complaint be withdrawn, no other case filed and the ex‑husband not file any case or complaint against the wife.  It recorded that the wife had not had a child and would make no claim for maintenance and that both parties could remarry as per their choice and that “nobody has to take any objection or dispute”. 

20. The Tribunal recorded that the police complaint of 1 January 2007 (dated the day before the divorce document) referred to the wife’s marriage to her ex‑husband in December 2005.  She complained that her then husband harassed her mentally and physically, including about her dowry and described a major quarrel on 31 December 2006 including members of his family.

21. The Tribunal stated:

    Assuming that those documents are genuine, they do not support a claim that the ex‑husband had any continuing interest in the second applicant after their divorce.  To the contrary, they support a finding that he divorced her the day after she filed a complaint against him and members of his family, he had not been a caring or devoted husband, but wanted to have nothing further to do with her.

22. For these reasons the Tribunal did not accept that the Applicant’s claims for protection were credible.  It rejected the claims about past threats and actions by the ex-husband that were said to be the basis for the Applicant’s claim to fear harm in India.  The Tribunal did not accept the accounts the Applicant gave at the hearing about being attacked by his wife’s ex‑husband and others or that there were incidents before 2009 and 2010 with the frequency increasing thereafter.  It did not accept that the ex‑husband had harmed or threatened the Applicant or would harm or threaten him if he returned to India.  It was not satisfied that there was a real chance the Applicant would suffer serious harm in the reasonably foreseeable future for a Convention reason if he returned to India.  It found that he did not meet the Refugees Convention criterion.

23. Nor was the Tribunal satisfied that the Applicant met the complementary protection criterion.  It did not accept that his claims about suffering mental and physical harm from the ex‑husband were true.

24. The Tribunal recorded that the wife, who was a member of the Applicant’s family unit, made no claims of her own and did not give evidence at the hearing.  It found that as neither Applicant was a person to whom Australia had protection obligations, neither met the family unit criteria.   

25. The Tribunal affirmed the delegate’s decision. 

26. The Applicants sought review of the Tribunal decision by application filed on 23 April 2015. There are three grounds of review. The first ground is that the Tribunal failed to comply with the mandatory requirement under s.424A (read with s.424AA) of the Migration Act 1958 (Cth) (the Act) to give the Applicant clear particulars of information it considered would be the reason or part of the reason for affirming the decision under review or otherwise to comply with the requirements of s.424A(1) of the Act. The particulars consist of a generally expressed contention that the Tribunal failed to issue a written invitation under s.424A of the Act and made no attempt to and did not comply with the requirements in s.424AA of the Act.

27. This ground does not identify any information to which s.424A would apply, such as to give rise to the obligation under s.424A(1) of the Act. The Tribunal’s adverse factual findings were based on documents provided to it by the Applicants for the purposes of the review, the First Applicant’s oral evidence and the Tribunal’s findings about his credibility. The documents are clearly within the exclusion in s.424A(3)(b) of the Act. As to the Tribunal’s conclusion, as pointed out in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31 at [22] and SZTGV v Minister for Immigration and Border Protection (2015) 318 ALR 450; [2015] FCAFC 3 at [18], “information” in the context of s.424A(1) must “in its terms contain a rejection, denial or undermining” of the Applicant’s claims.

28. Further, as stated in SZLFX at [23], citing SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18]: “[h]owever broadly “information” be defined, its meaning [in the context of s.424A] is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.” The concept of information does not extend to the Tribunal’s belief or disbelief of an Applicant’s claims (ibid). More generally, there is no evidentiary basis for any claim in relation to s.424AA of the Act in the absence of a transcript of the hearing. Ground 1 is not made out.

29. Ground 2 is that the Tribunal denied the Applicants procedural fairness by reaching adverse conclusions “that the applicants claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicants the opportunity to be heard in respect of those matters”.  The Applicant did not elaborate on this ground.

30. The First Respondent submitted that this ground could be seen as alleging legal unreasonableness.  It has not been established that the Tribunal’s findings lacked an evident and intelligible justification (as considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18) or that it was arbitrary, capricious or clearly unjust (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 and also see Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1) such that the decision was “one at which no rational or logical decision maker could arrive on the same evidence”.

31. Whether the Applicants’ concern is with the reasoning or the decision of the Tribunal, illogicality or irrationality or legal unreasonableness has not been established.  In particular, the decision has not been shown to be one at which no rational or logical decision‑maker could arrive on the same evidence.  There was an evident and intelligible justification having regard to the Tribunal’s credibility findings, which were reasonably open to it on the material before it for the reasons it gave. 

32. On its face this claim may also be seen as asserting a lack of an opportunity to be heard or non-compliance with s.425 of the Act.  It was contended that the Tribunal’s adverse conclusions that the Applicants’ claims were implausible had to be put to the Applicants. 

33. However the Tribunal invited both Applicants to a Tribunal hearing in circumstances where it advised that it had considered the material before it but was unable to make a favourable decision on that information alone.  The First Applicant attended the Tribunal hearing.  The only evidence before the Court as to what occurred in the Tribunal hearing indicates that the Tribunal raised with the Applicant issues of concern relevant to his credibility, in particular in relation to inconsistencies in his evidence and his explanations.  There is nothing in the material before the Court to establish that the Tribunal failed to raise dispositive issues with the Applicant (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63) or that it otherwise fell into error in the manner contended for in ground 2.

1. There is otherwise no general obligation on the Tribunal to put its provisional reasoning to an applicant for comment (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1). In any event, contrary to the Applicant’s contention, the Tribunal’s findings in relation to his credibility were reasonably and obviously open to it on the material before it. Ground 2 is not made out.

2. Ground 3 is that the Tribunal failed to accord procedural fairness to the Applicants because of what was described as the “little weight it gave to the claim of the applicants because of the applicant’s inconsistencies in the application for a protection visa”. 

3. This ground appears to misconceive the basis for the Tribunal’s decision.  This was not a case in which the Tribunal gave “little weight” to an applicant’s claim.  Rather, it disbelieved his claims because of its adverse credibility finding.  Further, in taking that approach, the Tribunal did not make its credibility finding on the basis of inconsistencies in the protection visa application.  Rather, and more significantly, it had regard to inconsistencies between the account in the protection visa application and the account in the Applicant’s oral evidence at the Tribunal hearing and also internal inconsistencies in his oral evidence. 

4. Insofar as this ground was intended to take issue more generally with the fact that the Tribunal made an adverse credibility finding (as reiterated by the Applicant in oral submissions today in that he said that he had provided all the evidence and had no idea how the Tribunal reached its decision) no jurisdictional error has been established.  As indicated, the Tribunal’s findings on credibility were reasonably open to it on the material before it for the reasons which it gave and merits review is not available in this court. 

5. The Applicant addressed the inconsistencies in his evidence in suggesting that he and his wife were really tense and that he might have given some different answers.  However these contentions, which seek to provide a further explanation for inconsistencies, are not such as to establish jurisdictional error on the part of the Tribunal.

6. The Applicant may also be seen as taking issue with the Tribunal’s approach to the documentary evidence he provided.  However the Tribunal did not find that the documents provided after the hearing (the divorce agreement and the police complaint) were fraudulent or gave them little or no weight.  Rather it found, on the assumption that the documents were genuine, that they did not support a claim that the ex‑husband had any continuing interest in the wife after their divorce.  Ground 3 as pleaded and as elaborated on in oral submissions is not made out.

7. Finally, in the affidavit accompanying the application the Applicant claimed he was threatened and that the decision was unjust and made without taking into account the full gravity of his circumstances and the consequences of his claim.  The Applicant told the Court today that he disagreed with the Tribunal’s reasons or conclusion.  In this respect he seeks impermissible merits review. 

8. The Tribunal considered the integers of the Applicant’s claim but, for the reasons which it gave, was not satisfied as to the credibility of his claims about past events.  On that basis it did not accept that the ex‑husband had harmed or threatened the Applicant or would harm or threaten him if he returned to India.  No jurisdictional error is established on this basis. 

9. As no jurisdictional error has been established on any basis contended for by the Applicants, the application must be dismissed.

10. The Applicants have been unsuccessful.  The Minister seeks costs.  The Applicant, when given the opportunity to comment, repeated that he did not agree with the Tribunal decision and that he did not understand how the Tribunal could have made its decision.  However his disagreement with the Tribunal decision is not such as to warrant a departure from the normal principle that unsuccessful applicants should meet the costs of the First Respondent in relation to judicial review proceedings.

11. The Minister sought scale costs. However this was not a matter of complexity. Having regard to the nature of this and other similar matters, I am of the view that this is not a case which warrants an award of costs in the amount provided for in the suggested scale in the Federal Circuit Court Rules. An appropriate and reasonable amount of costs is the sum of $5,000.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 24 November 2016