Apx19 v Minister for Home Affairs

[2019] FCCA 1610

FEDERAL CIRCUIT COURT OF AUSTRALIA

APX19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1610

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal complied with its statutory obligations – whether the Tribunal’s adverse findings were open – whether the Tribunal failed to take into account an integer of the applicant’s claims or evidence – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Applicant: APX19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 359 of 2019

Judgment of: Judge Street

Hearing date: 11 June 2019

Date of Last Submission: 11 June 2019

Delivered at: Sydney

Delivered on: 11 June 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L Sanderson
Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 11 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 359 of 2019

APX19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 January 2019 affirming a decision of the delegate not to grant the applicant a Protection visa.

2. The applicant was found to be a citizen of Kenya and his claims were assessed against that country. The applicant arrived in Australia on a TU-572 visa on 8 June 2014. It was not until 25 October 2016 that the applicant applied for a protection visa.

3. The applicant claimed to fear harm due to a family conflict involving his uncle and aunties over the sale of land which he inherited from his grandmother. The applicant feared for his safety because he sold the land and took the money that they allege belonged to them. The applicant alleged that after selling the land he was attacked by a group of people on 18 August 2013. The applicant alleged he was beaten and had a tooth knocked out and was taken to hospital. The applicant alleged that he ran away to Nairobi and was then sponsored to come to Australia with his mother, taking out a loan to help him flee.

4. On 8 June 2018, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

5. The applicant applied for review on 27 June 2018. By letter dated 7 December 2018, the applicant was invited to a hearing on 8 January 2019 to give evidence and present arguments, and the applicant was also sent a letter on 9 January 2019 inviting him to comment on information in relation to what the applicant had said in relation to the sale of land and what was in his statement, the amount of money he said he obtained when he sold the land, and his mother helping him come to Australia by taking out a loan. The applicant responded on 15 January 2019.

6. The Tribunal identified a background to the application for review and set out the applicant’s initial claims in his application. The Tribunal identified the relevant law in an annexure to the Tribunal’s decision as well as referring to material provisions in its reasons.

7. The Tribunal found the applicant provided inconsistent evidence in relation to the date he allegedly sold inherited land, inconsistent evidence in relation to the alleged amounts of money he obtained when he sold the land, and inconsistent evidence in relation to whether his mother sponsored him to come to Australia and took out a loan to help him flee.

8. The Tribunal found that even though the applicant had stated at the hearing he had been assaulted twice, his statement only talks about him being assaulted once in 2013. The Tribunal referred to the applicant saying he returned to his home region to see his family who assaulted him in 2014. The Tribunal found the inconsistencies and omissions in the applicant’s evidence is indicative of someone who is not recalling events that have actually occurred and did not accept the applicant is credible.

9. The Tribunal did not accept the evidence adduced that the applicant sold the land on 18 July 2013. The Tribunal referred to taking into account the post-hearing submissions where the applicant alleged his agent told him to exaggerate the amount of money he received from the sale. The Tribunal found this was inconsistent with what the applicant said at the hearing.

10. The Tribunal found, given the applicant’s lack of credibility, that it did not accept that he sold the land and that, as a result, that he was attacked in either 2013 or 2014. The Tribunal did not accept that the applicant’s teeth had been damaged under the claimed circumstances or for the reasons claimed.

11. The Tribunal considered the applicant’s explanation that the amount left over from the land sale was put into the mother’s account but that the money belonged to him and found the explanation to be inconsistent with the written statement that his mother took out a loan to help him flee.

12. The Tribunal referred to the applicant’s explanation that he was on pain‑reliever medication and incarcerated which was not conducive to his mental health at the time of the Departmental interview and that there were a lot of miscommunication between the Department due to a language barrier and an unhealthy environment. The Tribunal did not accept that the inconsistencies or omissions in the applicant’s evidence were because he was on pain-reliever medication or because of his mental health or because of miscommunication.

13. The Tribunal referred to the applicant’s claim that he would suffer violence if returned to Kenya because his family had asked his mother for money and, if he returned, they may think he still had a lot of money. The Tribunal noted this was not in the applicant’s application statement for protection and found this was a recent invention. The Tribunal, because of the lack of credibility, did not accept the applicant’s claim.

14. The Tribunal also referred to the applicant’s claim to fear harm from the Kalenij clan but referred to this not being in his statement. The applicant’s explanation as to not telling his agent was because his agent was another clan member of a different clan. When the Tribunal put to the applicant why he could not use another agent, the applicant asserted that the particular agent was the only one he knew and he had no idea about protection.

15. The Tribunal referred to clashes between the two ethnic communities and noted the applicant had not stated in his statement this was the reason why he feared returning to Kenya. Due to the adverse credibility findings, the Tribunal did not accept the applicant has been targeted in the past because he is Kalenijn, or that there is a real chance of serious harm by the Kikuyu clan in the future. The Tribunal did not accept the applicant’s only option was to use a particular agent. The Tribunal did not accept that if the applicant had fled Kenya, he would not have been able to find out about protection.

16. The Tribunal took into account the applicant’s English language skills, intelligence and capacity to obtain migration advice and assistance and found that this would have meant that the applicant would have been able to find another agent and information about protection if his claims were true.

17. The Tribunal did not accept the applicant is credible or that his family have pursued and harmed the applicant or his mother in the past, or that there is any past family conflict that has occurred that has affected the applicant’s standing in the community. The Tribunal did not accept that there was a real chance the applicant will face serious harm from his family or the community, or any other ethnic group if he returns to Kenya.

18. The Tribunal found the applicant failed to meet the criteria in s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 18 February 2019. On 14 March 2019, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant did file an amended application, as well as an affidavit.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant initially asserted that the Tribunal had not considered his claim in respect of the land dispute. It is apparent from the Tribunal’s reasons that the Tribunal expressly referred to the land dispute and that there is no substance in the applicant’s contention that there was a claim in this regard that was not considered by the Tribunal.

4. The applicant then indicated he disagreed with the adverse findings by the Tribunal in respect to the land dispute. The Tribunal provided logical and rational reasons in support of the adverse credibility findings, as summarised above. Those adverse credibility findings were open to the Tribunal and cannot be said to lack an evident and intelligible justification. The applicant’s disagreement with them does not identify any relevant error.

5. The applicant also suggested that the Tribunal had failed to take into account his claim concerning his tooth being knocked out. It is apparent from the Tribunal’s reasons that the Tribunal expressly referred to the applicant’s statement in support of his application concerning the incident involving his tooth and made adverse credibility findings in respect of that incident and expressly referred to rejecting the circumstances in which the applicant contended he lost his tooth in paragraph 31 of the Tribunal’s reasons.

6. The applicant also submitted that the Tribunal had not taken into account circumstances in which he had been on pain relief. There was an express reference in the Tribunal’s reasons at paragraph 33 to the applicant’s explanation for his omissions and inconsistencies and the Tribunal rejecting the applicant’s explanation in respect of being on pain relief and his state in that regard.

7. The applicant also referred to an alleged incident in 2007 and contended that this had not been taken into account by the Tribunal. The Tribunal expressly referred to the same in paragraph 35 and made adverse findings in respect of the applicant facing any real chance of serious harm in the future by reason of any ethnic clash and taking into account the adverse credibility findings and rejecting the applicant’s claims and explanation for what was not included in his statement. There was no integer of the applicant’s claims that the Tribunal failed to consider.

8. The applicant submitted that the Tribunal had not taken into account his fear of his family. The Tribunal made express reference to the applicant’s claims concerning his family and, in paragraph 36, given the adverse credibility findings, did not accept that the applicant’s family had pursued and harmed the applicant or his mother in the past, or that there is any past family conflict that has affected the applicant’s standing in the community. There is no integer of the applicant’s claims that the Tribunal failed to consider. The applicant’s disagreement with the adverse findings of the Tribunal invite this Court to engage in merits review. This Court does not have power to review the merits. Nor can the Court determine the matter on compassionate or discretionary grounds. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the amended application are as follows:

   1. After arriving to Australia with a student visa in the year 20I4 June i would not have disclosed my circumstance to the public that I am seeking for protection because of my safety reason at the time my former agent was from an ethnicity of Kikuyu and I was not able to tell her about my situation because I was fearing of my privacy and security reason because she might exposed me and my life could more dangerous as l am from ethnicity of Kalenjin tribe from X, from country history we had a conflict in Kenya 2007-2008 and so many of innocent Kikuyu family lost their life during that time of post election violence, we were being order to kill and destroyed any Kikuyu family it was not the right thing to do, but because our leaders as command to do so and there were no man should stayed at home, there were no one is going back or you will face more consequences from the community elders and other leaders you could be torture and they will kill you and my uncle was at the front bench with other colleague because he was ex police and I was forced to participate and I witness several people being killed and burnt down to dead especially those who was in A church , it was dozen of people in there perished including children and this the reason I am afraid to go back to my home country or else in parts of Kenya because if they found that I was among the who participated in the year 2007 that will be the end of me. Kikuyu are all over Kenya and they are having there own group called Mungiki and Kenyan government wouldn't provide protection for me.

   The time I was making my application to come to Australia I was not able to be open up to my former agent that I was running away seeking for protection maybe his relative or extended family died during that moment. As· I witnessed the killing during the conflict and later we were forced to take an oath so that we can remain silent and not to mention anybody who participated my uncle was there as well I manage to dodge the oath with other boys we didn't attend the ceremony. They later discover that we didn't take the oath I am so worried about my future if return to home town and back to my community that I will face more than a consequences and even torture or I will be killed. The reason I didn't want to mention in my first claim for protection I could not tell my former agent of what happen in 2007 between our ethnicity the for agency was OPTION EDUCATION. Tribunal made an assumption that aim only blaming the agent because they come from Kikuyu which it is not true because I didn't want to put myself at risk.

   My second agent whom made my application for protection visa was from here Australia and its called Oz Migration agent and I was open to tell about my past and the reason why I wasn't willing to return to my home country and why I wasn't able to fund my academy career in here in Australia because I did consider for my safety I didn't want anything happen to me again like what go through in the past and she help me to make an application for protection visa due to imminent treat to my life but she didn't read it to me back to check what she wrote was correct. And the tribunal made an assumption and conclusion that I was blaming the Kikuyu agent which it is not true.

   2. Tribunal didn't accept that I was attack after proving to them, them with an evidence and still could believe so I wonder if its there a special evidence after being attack which need to be provide as a victim I feel bitter in my heart after my life was in danger.

   3. Family conflict; We had a family conflict with my uncle and my aunts they were not happy after I had inhered the land from my grandma, the reason I was given that piece of land because I was born outside the marriage as in our community culture I was entitled to have the land, but my extended family turn against me because l had to sell the land to stay away from them because they have been mistreating me since I was young and the land was assign to my mum name, and we decide to sell it so that I can move on with my life a month later after we have sold the land I was attacked as was going home from the center I was scared to make police report l feared retaliation by the attackers. I believe the tribunal made an assumption and conclusion that there were no conflict ongoing between me and my extended family I have been experiencing several abuse, assault and being dramatized and lost my front tooth and putting on denture at my age its really hurting this is a wound that would never ill.

   4. The tribunal didn't consider the evidence l provide them and all my claims to provide for considering granting complementary protection.

   After life being dramatized going through several abuse from my extended family being lonely and struggling with life to live there are other information l can recall, I am not that perfect. Because all the events occur in different time in different occasion.

Ground 1

1. In relation to ground 1 in the amended application, this, in summary, is a repetition of the applicant’s claims and invites the Court to engage in merits review. The applicant’s contention for his explanation for the omissions and inconsistencies does not identify any relevant error.

2. On the face of the material before the Court the applicant had a real and meaningful hearing before the Tribunal. On the face of the material before the Court the Tribunal complied with its statutory obligations in the conduct of the review.

3. The observation by the Tribunal in respect of the applicant being able to obtain a different migration agent, given his education and skills, was a finding that was reasonably open to the Tribunal on the evidence before the Tribunal. No jurisdictional error is made by ground 1.

Ground 2

1. In relation to ground 2, this appears to take issue with the adverse finding by the Tribunal rejecting the applicant’s claims in respect to the land dispute and the attack. Those adverse findings were open for the reasons given by the Tribunal. Having rejected that the applicant sold the relevant land, it was open to the Tribunal to reject the applicant’s claims as to being attacked in respect of that sale. No jurisdictional error is made out in respect of ground 2.

Ground 3

1. In relation to ground 3, the applicant appears to contend that he faces harm from his family as a result of a family conflict. It is apparent that the Tribunal expressly referred to the applicant’s claims in respect of fear of harm from his family and made adverse findings in paragraph 36 based on the adverse credibility findings, which were open to the Tribunal. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, the applicant asserted the Tribunal did not consider the evidence that he provided and all his claims. There has been no evidence identified that the Tribunal failed to take into account and there has been no claim or integer of claim that the Tribunal, on the material before the Court, has failed to take into account. The applicant’s disagreement with the adverse findings do not identify any relevant error. No jurisdictional error is made out by ground 4.

2. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-four (34)  paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 July 2019