Aun17 v Minister for Immigration

[2019] FCCA 826

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUN17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 826

Catchwords:
MIGRATION – Application for judicial review – Applicant unsuccessful – application dismissed – costs to follow the event – costs in favour of the Minister.

Legislation:

Migration Act 1958 (Cth), s.425(1)

Cases cited:

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77
SZKJV v Minister for Immigration and Citizenship [2011] FCA 80

Applicant: AUN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 363 of 2017

Judgment of: Judge Riethmuller

Hearing date: 15 February 2019

Date of Last Submission: 15 February 2019

Delivered at: Melbourne

Delivered on: 1 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Ms Farrell

Counsel for the Respondents: Mr Grant

Solicitors for the Respondents: Mr Hunter

ORDERS

1. The Amended Application filed by the Applicant on 18 January 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs, fixed in the sum of $5000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 363 of 2017

AUN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

Procedural History

1. The Applicant arrived in Australia on 23 July 2006 on a Business Short Stay (Subclass 456) visa. On 30 August 2006 the Applicant applied for a protection visa. This application was refused on 19 September 2006. The Applicant sought review by the Refugee Review Tribunal (“the Tribunal”). On 2 January 2007 the Tribunal found that it had no jurisdiction to review the decision.

2. On 5 July 2012 the Department re-notified the Applicant of the delegate’s decision. The Applicant on that day applied again to the Tribunal for review. On 5 November 2012 the Tribunal again found it had no jurisdiction to review the delegate’s decision.

3. On 19 August 2013, the Applicant applied for a protection visa, claiming to face a real risk of significant harm in India, in the form of destitution, dire poverty and starvation following the forced acquisition of his family farm by the state government of Uttaranchal. On 25 September 2014 the delegate refused to grant the Applicant the visa.

4. On 14 October 2014 the Applicant applied to the Tribunal for review of the decision. On 2 November 2015 the Applicant was invited to attend a hearing in person before the Tribunal, scheduled for 26 November 2015. He attended with the assistance of his registered migration agent, and a Punjabi interpreter. The Tribunal took evidence but had to adjourn due to the interpreter needing to depart abruptly.

5. On 22 December 2015 the Applicant’s registered migration agent requested that a further hearing not be listed until at least 13 January 2016. On 22 January 2016 the Applicant was invited to attend a further hearing on 11 February 2016, and did so, again with the assistance of the migration agent and a Punjabi interpreter.

6. On 26 February 2016 the Applicant’s migration agent wrote to the Tribunal, requesting that it delay its decision pending the outcome of appeals to the Federal Court of Australia. On 2 August 2016 the Tribunal advised it would proceed to make a decision on the basis of the current law, and enquired whether the Applicant would be making further submissions. The following day on 3 August 2016, the Applicant’s migration agent sought two further weeks to provide those submissions. On 17 August 2016, the Applicant’s migration agent requested that the Tribunal allow a further 7 days to provide submissions and evidence. The migration agent provided further submissions on 24 August 2016 as well as further country information on 28 August 2016.

7. On 30 August 2016 the migration agent sought a further two weeks to provide a translation of an article, to which the Tribunal granted the extension on 31 August 2016. On 12 September 2016 the migration agent sought a further 2 week extension to provide the material, and this was granted by the Tribunal on 14 September 2016, giving until the 29 September 2016 to do so. On 28 September 2016 the migration agent requested a further 21 days extension to provide further post-hearing submissions and documents. This was granted on 28 September 2016. Then, on 19 October 2016, the Applicant’s migration agent sought a further extension until 2 November 2016, to “gather all of the client’s supporting information and documentation and attempt to obtain the best possible outcome for our client”. Such extension was granted on 20 October 2016.

8. On 28 October 2016 the Applicant’s migration agent advised that there was a further delay in preparing material, and that they would provide an update to the Tribunal on 3 November 2016. On 2 November 2016 the Applicant’s migration agent provided further country information.

9. The Tribunal delivered a decision on 20 January 2017 which affirmed the decision of the delegate of the First Respondent not to grant the Applicant a protection visa.

10. The Applicant submitted an application seeking judicial review of the Tribunal’s decision on 23 February 2017.

11. The Applicant alleges that the length of the delay between the hearing held on 11 February 2016 and the decision of the Tribunal on 20 January 2017, in circumstances where the Tribunal made substantial adverse credibility findings, had the effect that the most recent hearing afforded to the Applicant had ceased to be a real and meaningful hearing as required by s 425(1) of the Migration Act 1958 (Cth).

Applicant’s claim

1. The Applicant was born in the Udham Singh Nagar district of Uttarakhand in northern India, of which he is a citizen. He is 52 years of age and has a wife and two sons who reside in India. He speaks and reads Hindi and speaks Punjabi and English.

2. He departed India legally on 22 July 2006 via Mumbai airport. He has not departed Australia since his arrival on 23 July 2006.

3. He claims his application is made on the basis of a real risk of significant harm in the form of cruel, inhumane and degrading treatment or punishment following the compulsory acquisition of his family’s farming property.

4. He claims he had to leave his home following serious political disturbances and conflicts after the compulsory acquisition of his family’s farming property by the State government. He claims that his land and only source of subsistence as a farmer was acquired without just compensation.

5. He joined the Bahujan Samaj Party (BSP), a social activist party representing the rights of farmers and workers, to seek their help in defending against the compulsory acquisition of his property. In a series of riots during protests from August to December 2005, the Applicant alleges that protesters, including himself, were beaten, detained and harassed by the police, and he therefore fears serious harm from the Kashipur police. In the course of the riots and protest his family factory and other sources of income were destroyed. He fears his family will be condemned to destitution, starvation and degradation.

6. He alleges that would not be protected by the Uttaranchal government as it is their policies and practices that are the cause of the serious harm that he faces on return to India. He fears that if he was to return he would not be able make enough money to survive in India, and that he would fall into economic destitution and impoverishment. He says that has not repaid an outstanding loan, which would be enlivened upon his return, and he may be arrested and detained as failure to repay loans is sometimes dealt with by the police in India. The interest on his loan means he does not have money to start his own business again. He sends his wife money each month to assist with food and expenses. She is presently renting a house.

7. Before the Tribunal, the Applicant submitted that he will face a real risk of significant harm on two grounds:-

   a)In the form of cruel, inhumane and  degrading treatment or punishment following his forcible eviction from his family’s farming property and its compulsory acquisition, and the ongoing refusal of the Uttarakhand state government to offer and pay adequate compensation for the forced acquisition of this family land; and

   b)Significant harm in the form of cruel or inhumane treatment or punishment, degrading treatment or punishment, torture, and arbitrary deprivation of life, either at the hands of the authorities or police, or at the hands of Hindu extremists, because of his political beliefs and likely activities advocating Sikh rights.

Tribunal’s Findings

1. The Tribunal accepted the following facts and made the following findings:-

   a)the Applicant is a citizen of India and that his identity is as he claims it to be;

   b)he had a connection with a farm at Kashipur that was handed down through generations on his father’s side;

   c)the Applicant’s wife and children lived at the farm prior to its seizure;

   d)the Applicant has not personally received compensation for the acquisition of his father’s land and he is unlikely to receive any in the future;

   e)there were protests by farmers in Kashipur who became aware their land was to be acquired by the state government, a number of farmhouses and associated crops were destroyed by authorities in January 2006 and the land was sized;

   f)the Applicant joined protests against the land acquisitions and joined the BSP to seek their help in defending against the forced acquisition of the land;

   g)the Applicant may have been hit with a lathi (a long bamboo stick) when protesting, noting that the Tribunal did have some doubts regarding the Applicant’s claim that he was detained by police for a number of days on separate occasions. On balance however, the Tribunal accepted it was possible and afforded the benefit of the doubt to the Applicant in relation to this assertion;

   h)whilst the Tribunal accepted that the loss of his father’s land impacted on the financial situation of the Applicant, it considered the claim exaggerated;

   i)despite a lack of evidence, the Tribunal accepted that it was plausible that the Applicant took out a loan of Rs. 80,000 (approximately AUD $1,600); and

   j)the Tribunal accepted that the Applicant supports Sikh rights causes and has spoken with members of the community in Australia and that he is a supporter of the ideals of the Akali Dal (Amritsar) Party.

2. The Tribunal concluded that the decision under review should be affirmed for the following reasons:-

   a)the Tribunal did not accept the Applicant would be of any interest to the Kashipur police should he be returned to India, nor that he faced a real risk of significant harm due to the protests;

   b)due to inconsistent and contradictory evidence and a lack of evidence (such as media reports), the Tribunal did not accept that in the course of the riots his family factory had been destroyed;

   c)the Applicant’s skills as a welder and turner and experience in manufacturing and repairing agricultural equipment would be in demand in India;

   d)the Tribunal did not accept that the Applicant owed money in India on a bank loan or that he might be arrested on his return to India for the outstanding loan, noting he was not arrested over the period he remained in India after he claimed to have ceased making repayments on his loan. The Tribunal found the Applicant to have consistently been able to obtain money to meet large expenses such as migration agents and legal expenses, as well as send money to India for his family, and did not accept that he would not have been able to repay the debt. Accordingly, the Tribunal did not accept that if he was to return to India, that he would be arrested or that a false case may be fabricated against him; 

   e)the Tribunal did not accept the Applicant would be destitute upon returning to India. Whilst he may not be in a position to go into business for himself and suffer some financial hardship, this may mean that he would have to look for cheaper accommodation options. The Tribunal considered that he had the skills to obtain skilled employment in India that would pay above the basic wage and afford a standard of living that would place the Applicant above the poverty line in India. Further, the Tribunal did not accept that the Applicant would be unable to gain employment in India because he is a Sikh;

   f)the Applicant indicated his wife has done some work as a seamstress and his sons are at an age where they might soon be expected to enter the workforce and contribute to the household finances. The Tribunal did not accept that this precluded his wife from undertaking some part-time work;

   g)the Tribunal did not consider the Applicant to be a prominent or especially active supporter of the Akali Dal (Amritsar) party;

   h)the country information from the Department of Foreign Affairs and Trade suggested that Sikhs overall have no heightened risk of official discrimination beyond that experienced by the broader community. The Tribunal was satisfied the information indicated that the situation for Sikhs in India has improved dramatically, and that a Sikh who was not engaged in militant activity or perceived to be engaged in same would not face a real risk of being of adverse interest to the authorities, and would therefore not face a real risk of arrest and detention upon returning to India; and

   i)the Tribunal did not accept the Applicant’s political views might draw him to the attention of Hindu extremists and place him at real risk of significant harm.

Grounds

1. The Applicant relies upon one ground (“the ground”) framed as delay.

2. The Applicant relies upon the amount of time that passed between the last oral hearing of the Applicant before the Tribunal on 11 February 2016, and the later decision of the Tribunal on 20 January 2017, a period of a little over 11 months. 

3. The Applicant argues that the effect of this delay has resulted in the Applicant no longer having a real and meaningful hearing, at least with respect to the parts of the decision that contain substantial adverse credibility findings, due to the delay between the hearing and the date of the decision. The Applicant relies upon the comments of the High Court in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (“NAIS”). In that case there was a long delay between the hearing and the decision of the Tribunal.

4. In NAIS, the Tribunal’s last hearing had been in December 2001 and the decision not made until January 2003, a delay of around 13 months. It is important to recognise that it is not the precise period of the delay that is relevant in determining cases of this type. Importantly, significant recognition must be given to the likely effect upon a decision-maker’s capacity to make a proper assessment of the sincerity and reliability of witnesses if there is a lengthy delay. The nature of the delay that is relevant was described by Gleeson CJ at paragraph 10:-

   If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk.

5. Gleeson CJ went on to conclude that in the absence of any “countervailing considerations”, it should therefore “…be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired”.

6. Importantly, his Honour noted that “the fact that the impairment resulted from the default of the Tribunal is important.” His Honour went onto explain at [11] that:-

   Many events, outside the control and influence of the Tribunal, might occur to make it more difficult to evaluate the claims of an applicant. That does not make the procedure unfair. On the other hand, when the Tribunal, exercising the control over its own procedures given to it by the Act, without explanation or justification, and without any fault of an applicant for review, draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the Tribunal's reasons to displace that likelihood, then a case of procedural unfairness arises.

7. It is notable that in this case the Tribunal were ready to make the decision by 2 August 2016, after around 95 days, whereas the balance of the 345 days were delays at the request of the Applicant’s advisors for the purpose of submitting further documents. It could not be argued that a delay of 95 days between the hearing and a decision would be out of the ordinary, particularly in cases of this type where a large number of documents must be carefully scrutinised, given that the outcome is of such significance to the Applicant.

8. A further distinction is drawn in SZKJV v Minister for Immigration and Citizenship [2011] FCA 80, where Reeves J noted that the decision was not affected by the NAIS style error from delay, as the credibility findings that were not solely or significantly based upon the assessment of demeanour or bland assertions or simple findings of implausibility:  see paragraph 37.  Whilst the delay in that case was eight months, and in a perfect world would not be an acceptable period of delay for good practice, in a world of busy Tribunal members and Courts, a delay of that period for the purpose of producing a judgment between the pressures of other cases and work is not unusual.

9. As Counsel for the Respondent argues, although the findings are adverse to the Applicant’s credibility, they are not based upon the Applicant’s demeanour or simple assertions as to implausibility.  An example of the nature of the analysis is apparent in paragraph 58, which stated:-

   While the Tribunal accepts that the loss of his father’s land impacted on the financial situation of the applicant, the Tribunal considers that he has exaggerated the extent of that impact.  Firstly, the applicant indicated that the land had been passed down by his grandfather to his father and his father’s brothers.  He indicated in his statement of 29 July 2014 that he decided to obtain skills as a welder because the farm was only just producing enough income for his father’s family to get by.  He indicated that he worked as a welder/turner from Oct 1994, firstly at Ravindra Agricultural Industries and subsequently, from 2002, in his own business.  When queried by the Tribunal at the hearing regarding his circumstances the applicant commented that if he had not lost the land he would not have a problem.  Noting that the land was supporting his father and three other brothers and their families, the Tribunal asked the applicant why hat was the case.  He replied that the land meant his normal household expenses were looked after – he did not have to worry about food because the farm provided wheat and vegetables, so could look after the business side [sic]. While the Tribunal accepts that the loss of access to food from the farm and the need to accommodate his wife and sons with him in Rudrapur would have been a cost to the applicant, the Tribunal does not accept that this would have devastated him financially.  In this regard the Tribunal gives weight to the fact that the applicant indicated that he was able to borrow Rs 200,000 from in-laws and friends to pay an agent to arrange a visa for his [sic] to travel to Australia.  The applicant also indicated at the hearing that, following the demolition of his father’s house, the people he stayed with in Rudrapur while operating his business there offered to vacate the accommodation so he could stay there with his wife and children.  

10. It is apparent that the Tribunal undertook a careful analysis of the statements and allegations made by the Applicant in order to assess his credibility, rather than falling back upon his demeanour or presentation alone.  Having said that, there is also the risk that the positive impression that might have been given by the Applicant through his demeanour and presentation may have had less impact over time.

1. I also have regard to the fact that the Tribunal was obviously in a position to give a decision after 95 days, which indicates that the Tribunal had considered the evidence given, formed preliminary views and prepared reasons, rather than potentially a case where a Tribunal member had done nothing for a year before turning their mind to the particular case.

2. I find the comments of the Chief Justice in NAIS particularly compelling. Delays caused by a party seeking time to provide further material, even if they have adverse consequences, must be taken to be accepted by the party seeking further time. The party has open to them the option of putting all of their material before the decision-maker at the time of the hearing. If decision-makers were placed in the position of having their decisions overturned because of delay as a result of granting indulgences to a party to place more evidence before the decision-maker, it would place the decision-makers in an almost impossible position in attempting to balance the interests of justice through timely decision-making, and an opportunity to litigants (who are often ill-prepared and unrepresented), to provide further material that the litigant may believe to be relevant, even after the formal hearing.

3. In the circumstances of this matter, I am not persuaded that the Applicant has established this ground. I therefore dismiss the application for judicial review. It was agreed between the parties that costs would follow the event. I therefore make costs orders in favour of the Minister.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  1 April 2019