BRL19 v Minister for Immigration

[2019] FCCA 3078

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRL19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3078

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Subclass 866 Permanent Protection visa – whether the Tribunal identified the relevant law – whether the Tribunal misconstrued or misapplied s.36(2A) of the Act – whether the Tribunal had an active and intellectual engagement with the applicant’s evidence and submissions – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 5H, 36, 438, 476

Applicant: BRL19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 992 of 2019

Judgment of: Judge Street

Hearing date: 28 October 2019

Date of Last Submission: 28 October 2019

Delivered at: Sydney

Delivered on: 28 October 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Nanson
Australian Government Solicitor

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 28 October 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 992 of 2019

BRL19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL 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 4 April 2019 affirming the decision of the delegate not to grant the applicant a subclass 866 Permanent Protection visa.

2. The applicant was found to be a citizen of India and his claims were assessed against that country. The applicant arrived in Australia on 28 March 2015 on a FA600 Visitor visa. The applicant applied for a protection visa on 25 May 2015.

3. The applicant had claimed to fear harm by reason of his membership of the Tamilnadu Muslim Munnetra Kalagam (“TMMK”). The applicant had claimed to fear harm from the Rashtriya Swayamsevak Sangh (“RSS”) and other Hindu organisations as a result of a construction dispute. The applicant is a Muslim and fears he will be killed by the RSS.

4. The applicant allegedly went to Bangkok as he feared for his life. The applicant then returned to India to visit his family. The applicant alleged that on his way to a temple there was a Hindu meeting going on and that the applicant was badly beaten.

5. On 24 March 2016, a delegate found the applicant failed to meet the criteria for the grounds of a protection visa. The delegate found the applicant had not been truthful about the claimed occurred incidents and found the applicant had fabricated his story in an attempt to seek protection in Australia.

6. The applicant applied for a review to the Tribunal on 7 April 2016. By letter dated 7 March 2019, the applicant was invited to attend a hearing on 3 April 2019. The applicant provided submissions in support of the  application dated the 27 March 2019. The applicant appeared at the hearing before the Tribunal on 3 April 2019 to give evidence and present arguments.

7. The Tribunal in its reasons identified the background to the application for review and set out the relevant law. The Tribunal summarised the applicant’s claims. The Tribunal formed the view that the applicant was not a credible witness and provided 10 detailed reasons in support of that adverse credibility finding.

8. The first concerned the applicant’s claiming membership of the TMMK and that he was involved in activities to promote the political party. The applicant also alleged he was a member of the Tamil Nadu Muslim Development Organization (“TNMDO”). The Tribunal referred to the inconsistencies in the applicant’s evidence in relation to what organization he joined and the activities he undertook and raised credibility concerns in that regard.

9. The second concerned the applicant’s claims in relation to alleged problems by reason of being a Muslim and identified inconsistency in relation to the applicant’s claims concerning the RSS. The Tribunal found the applicant’s claims to be implausible.

10. The third adverse credibility consideration referred to the applicant’s claims in relation to being attacked in July 2014 by the RSS and the evidence the applicant had given in relation to his travel to Bangkok, Thailand between 4 June 2014 and 20 March 2015. The applicant’s passport indicated he arrived in Bangkok on 5 June 2014 and departed on 3 August 2014, which did not support the alleged incident occurring in July 2014. The Tribunal did not accept that it was a mistake in relation to the date.

11. The Tribunal fourthly referred to the applicant’s claims in relation to hiding in Bangkok and identified his return to India. The applicant, in his evidence to the Tribunal, failed to mention significant incidents which raised concerns with the Tribunal as to the applicant’s credibility and the veracity of his claims.

12. The fifth consideration by the Tribunal involved the applicant’s claim that after the attack by the RSS he could not go anywhere because of the threat to his life and that the applicant claimed he has been to other States in India. The Tribunal referred to the applicant providing only one address whilst living in India and this not being consistent with his evidence. The Tribunal referred to the impact of these inconsistencies on the applicant’s credibility and the veracity of his claims.

13. The sixth consideration by the Tribunal concerned the applicant’s response to being asked about travelling to any other countries other than Australia and Thailand and the applicant stating he had not. The Tribunal identified the inconsistencies in the applicant’s evidence in his application for protection and interview with the Department raising concerns in respect of his credibility and the veracity of his claim.

14. The seventh consideration by the Tribunal concerned the request for the applicant to bring to the Tribunal his passport and the Tribunal did not accept his explanation for his failure to do so which raised concerns in relation to his credibility.

15. The eighth and ninth consideration by the Tribunal concerned the applicant’s claim that he went to Bangkok, Thailand to hide from the RSS after they attacked him in July 2014 as he feared for his life. The applicant alleged to the Tribunal that he did not work while staying in Bangkok which was inconsistent with his evidence in the applicant’s application for protection. The Tribunal referred to the information that the applicant had provided in support of his application for protection and found it was not consistent with his passport and that the applicant’s inconsistent evidence and voluntary return to India impact on the applicant’s credibility and the veracity of his claim.

16. Finally, the Tribunal also found the applicant had not been consistent in relation to his claims for seeking asylum having arrived in Australia on 28 March 2015 on a Visitor visa. The Tribunal raised with the applicant that he did not apply for protection until 25 May 2015 and was of the view that the delay impacted on the applicant’s credibility. The Tribunal did not accept that the applicant could not organize to lodge his application for protection earlier.

17. The Tribunal in its reasons referred to the existence of a s 438 certificate concerning information contained in two checklists on his file and that the same was disclosed to the applicant. The Tribunal informed the applicant that the certificate, on its face, was invalid and no submission was further advanced by the applicant in relation to the s 438 certificate.

18. The certificate is in evidence at page 86 of the Court Book and refers to two folios. There is no basis to find that the internal working documents in the business affairs in relation to those checklists were in any way relevant to the conduct of the review given that the Tribunal raised the certificate with the applicant in the course of the hearing. The applicant suffered no practical injustice by reason of the existence of the certificate or the documents the subject of a certificate in the present case.

19. The Tribunal found the applicant is not a witness of truth and found the applicant had fabricated his material claims for the purpose of obtaining a protection visa.

20. The Tribunal referred to the applicant having travelled to Thailand on three occasions and was in Thailand between 4 September 2012 and 25 December 2012, 5 June 2014 and 3 August 2014, and 4 October 2014 and 27 September 2015. The Tribunal did not accept that the applicant did not work in Thailand. The Tribunal found the applicant worked at a jewellery store and at an electrical shop in Thailand. The Tribunal did not accept that the applicant has only travelled to Thailand and Australia. The Tribunal found the applicant had travelled to Paris, France on 25 December 2012 and was there until 5 January 2013. The Tribunal found the applicant voluntarily returned to India from his various trips overseas and he has lived with his wife and children in his home region on return to India.

21. The Tribunal did not accept the applicant was a member of the TNMDO or TMMK. The Tribunal did not accept any of the applicant’s claims that flowed from that and rejected them in their entirety. The Tribunal did not accept the applicant was a member of a political party and undertook political activities on behalf of the party. The Tribunal did not accept the applicant was or is of adverse interests to the RSS.

22. The Tribunal was not satisfied that there was a real chance or a real risk that the applicant would suffer serious harm or significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future.

23. The Tribunal found the applicant does not have a well-founded fear of persecution and is not a refugee within the meaning of s 5H of the Act. The Tribunal found the applicant did not meet the criteria in s 36(2)(a) of the Act.

24. The Tribunal turned to the issue of complementary protection. The Tribunal was not satisfied that 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 the applicant will suffer significant harm as defined in s 36(2A) of the Act. The Tribunal found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 23 April 2019. On 16 May 2019, the Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

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 maintained that he had not understood why he had been rejected by the Tribunal. Both the delegate and the Tribunal had disbelieved the applicant in relation to his claims. It is apparent that the applicant had a real and meaningful hearing before the Tribunal and that the Tribunal explored the issues of concern in respect of the applicant’s credibility with the applicant. The adverse findings by the Tribunal in respect of the applicant’s credibility were open for the reasons given by the Tribunal. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error.

4. The applicant maintained that there would be no protection for him if he returned to India because of the RSS. The Tribunal expressly addressed that claim by the applicant and made adverse findings in relation to the applicant’s claim concerning a fear of harm from RSS. For the reasons given above those adverse findings were open to the Tribunal.

5. The applicant suggested from the bar table that the Tribunal had not properly investigated the applicant’s claims. There is no obvious step identified in respect of an easily ascertainable source on a material fact that could give rise to any duty to inquire. It was for the applicant to establish the applicant’s claims. Further, s 5AAA(2) of the Act identifies it is for the applicant to specify all particulars of his claim and to provide sufficient evidence to establish the same. No duty to inquire arises before the Tribunal on the material. No jurisdictional error arises by reason of the applicant’s oral submissions.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

   The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India.

   3. The Tribunal constructively failed to exercise its jurisdiction;

   Particular:

   The applicant provided independent world report on India to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims.

Grounds 1 and 2

1. The first two grounds allege error in relation to misconstruction or misapplication of the complementary protection provisions. The Tribunal’s reasons expressly summarise the relevant law in the body of the reasons and set out the statutory provisions including s 36(2A) of the Act and are paginated in the annexure to the reasons.

2. It is apparent that the Tribunal turned its mind to the issue of complementary protection and referred to having considered the applicant’s claims individually and cumulatively. It was open to the Tribunal to take into account the adverse credibility findings in determining the applicant’s claims under complementary protection. There is no basis to find that the Tribunal misconstrued or misapplied s 36(2A) of the Act or otherwise misconstrued the statutory provisions in relation to complementary protection. No jurisdictional error arises by reason of grounds 1 and 2 of the application.

Ground 3

1. In relation to ground 3, the applicant alleges a failure to have an active and intellectual engagement with a document provided by the applicant. The correct position is that the applicant provided an email link to the Tribunal on 31 March 2019 to the Human Rights Watch Report 2018 as identified on page 114 in the Court Book.

2. The Tribunal’s reasons identified having regard to the report, but also took into account that no specific information in the report was identified as being relevant to the applicant’s claims. The Tribunal also identified discussing with the applicant DFAT country information in relation to India and societal discrimination and violence against Muslims. The Tribunal also noted that the applicant was not from one of the State’s referred to in the report that identified low level official and societal discrimination. There are no documents to which the Tribunal gave no weight in reaching its findings. There is no proper basis to infer that the Tribunal did not consider the Human Rights Watch Report.  

3. On the face of the Tribunal’s reasons, the Tribunal had a real and meaningful engagement with the applicant’s submissions. The Tribunal’s reasons reflect an active and intellectual engagement with the applicant’s evidence and submissions. There was no constructive failure to exercise jurisdiction as alleged. The adverse findings as to credit were open. There is no basis to infer that the whole of the evidence before the Tribunal was not taken into account in the adverse credit findings. No jurisdictional error as alleged in ground 3 is made out.

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

I certify that the preceding thirty-six (36) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 28 October 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:  

Date:  25 November 2019