CAF15 v Minister for Immigration

[2016] FCCA 1336

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAF15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1336

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings against the applicant – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

First Applicant: CAF15

Second Applicant: CAG15

Third Applicant: CAH15

Fourth Applicant: CAI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2704 of 2015

Judgment of: Judge Street

Hearing date: 1 June 2016

Date of Last Submission: 1 June 2016

Delivered at: Sydney

Delivered on: 1 June 2016

REPRESENTATION

The first applicant appeared in person.

Solicitors for the First Respondent: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the costs of the first respondent fixed in the amount of $5200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2704 of 2015

CAF15

First Applicant

CAG15

Second Applicant

CAH15

Third Applicant

CAI15

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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) in respect of a decision of the Tribunal made on 14 September 2015 affirming a decision of the delegate not to grant the applicants protection visas. The applicants were found to be citizens of Indonesia, and their claims were assessed against that country. The first and fourth applicants are married parents of the second and third applicants who are minors.

2. The first applicant entered Australia on 26 January 2008 holding a Student (Class TU) visa that was granted offshore on 10 January 2008.  That visa ceased on 18 February 2008, and on the same day the applicant was granted a further Student (Class TU) 572 visa which ceased on 26 May 2008.  The first applicant was granted another Student (Class TU) 572 visa that was due to cease on 18 November 2009.  The first applicant departed Australia on 23 April 2009.  The first applicant re-entered Australia on 2 May 2009 with his three dependents who are included in the application for protection.  After the student visa ceased on 18 November 2009, the first applicant and his three dependents became unlawful.  On 28 April 2011, the second and fourth applicants were located in Canberra.  The first applicant and the third applicant could not be located at that time, and the second applicant attempted to deceive the department as to the whereabouts of their passports.  Bridging visas were granted to the second and fourth applicants that ceased on 3 May 2011.  The applicants failed to depart Australia and remained unlawfully in Australia. 

3. On 20 May 2014, the first applicant was stopped by the New South Wales Police in relation to a traffic matter and was identified as an unlawful non-citizen and was detained.  It was in those circumstances that the applicants lodged an application for protection on 28 May 2014. The second, third and fourth applicants were included in the application as members of the family unit.

4. The delegate refused the application on 25 July 2014.  The applicant applied for review on 21 August 2014.  The applicant was invited to attend a hearing by letter dated 28 May 2015 which was the subject of a request for postponement.   A further date was fixed for the hearing of the application that was the subject of a further request for the postponement, and the applicant appeared before the Tribunal to give evidence and present arguments on 11 September 2015 and was assisted by an interpreter as well as having present their registered migration agent.

5. The first applicant outlined his fears of harm in Indonesia which in summary were on the basis of his past involvement with the Partai Rakyat Demokratik (PRD) also known as the Democrats People’s Party of Indonesia.  The first applicant claimed he was a student activist and was constantly harassed by the Indonesian authorities and was denied employment due to his involvement with the PRD.  The first applicant also claimed he was arrested for participating in demonstrations in 1999 to 2000 and was forced to move his family home.  The first applicant claimed that PRD members were kidnapped, hunted, tortured and jailed and he was blacklisted by the government because of his past political activities, and known political activists were targeted where there was a riot.

6. The first applicant also raised in his application for protection a reason why he could not go home, being that his family

   …does not expect us to be back there, and that we got married and ran away.  We worked hard to get money to come here.  That’s why we don’t want to go back there. 

7. Before the delegate, the first applicant asserted in a written statement that he had to flee Indonesia because his family did not accept his marriage. 

8. The Tribunal summarised the first applicant’s fears of persecution in para.7, including referring to the first applicant’s fears for his own safety and that of his family.  The Tribunal made adverse credit findings in relation to the applicants, and it expressed considerable doubts in relation to the entirety of the first applicant’s claims.  The Tribunal summarised the first applicant’s return to Indonesia, the lengthy delay and the lodgement of his application after his initial arrival in Australia, the fact that the application was only made after he was detected as an unlawful citizen and having lived in Australia for some five years and his failure to mention during the initial compliance interview conducted the same day on his detention that he feared harm in Indonesia due to political involvement as indicative of the fact that the first applicant’s claims had been fabricated following his detection as an unlawful non-citizen.

9. The Tribunal found that it did not accept that the first applicant’s family was forced to move or that he was alienated or that his sister had difficulty obtaining government employment due to the involvement in the PRD.  The Tribunal did not accept that the first applicant generally fears harm in Indonesia and considered that the applicant had fabricated the claims in an attempt to obtain a visa for himself and his family to remain permanently in Australia after several years of living in Australia without permission.  The Tribunal noted that the first applicant had previously made claims to have left Indonesia due to his family’s disapproval of the relationship between himself and his wife.  The Tribunal was not satisfied that there was any real chance that the first applicant would suffer serious harm for this reason if he returns to Indonesia. 

10. The Tribunal identified, having considered all of the evidence, that it was not satisfied that there is a real chance that the first applicant will suffer serious harm for reasons of his actual or imputed political opinion or for any other Convention reason if he returns to Indonesia now or in the reasonably foreseeable future.  The Tribunal found that it was not satisfied there is a real chance that the first applicant’s family members will suffer serious harm in Indonesia.  The Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Indonesia there is a real risk that the applicants would suffer significant harm.  It was in those circumstances the Tribunal found that the criteria under s.36(2) was not made out and affirmed the decision of the delegate.

11. On 12 November 2015, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  The applicant provided on the day of the hearing his submissions.  The application is as follows:

    1. The first applicant previously mentioned, among other claims, that he feared for his life because his wife's family are violent people who disapproves of his marriage to his wife. During the hearing before the Tribunal on the 11th of September 2015, the first applicant was not asked anything in great detail about this claim. However, the Tribunal in paragraph 29 of the decision record concluded that the Tribunal was not satisfied that there is a real chance that the applicant will suffer serious harm for this reason if he returns to Indonesia. In the circumstances, there was a denial of procedural fairness and jurisdictional error.

    2. The Tribunal in paragraph 21 and paragraph 27 of its decision, concluded that the first applicant manufactured or fabricated his claim after he was not able to remember details of events that occurred almost 15 years ago. It would be unreasonable to expect someone to remember exact details of circumstances that occurred almost 15 years ago. In the circumstances, there was a jurisdictional error.

12. Although the written submissions handed up by the first applicant suggested a desire to abandon ground 2, the applicant indicated that he was happy to have the Court consider ground 2, as well as ground 1. 

13. There is no evidence before this Court that the first applicant raised any claim to fear harm due to his wife’s family being violent people.  No evidence was adduced to this Court to support that assertion, and it is not apparent that any such claim arose on the material before the Court.  A claim that is not advanced by the applicants before the Tribunal cannot give rise to any jurisdictional error. 

14. It is apparent that the Tribunal appreciated that there was a claim advanced as to disapproval by the first applicant’s family of the relationship between him and his wife.  That claim was the subject of adverse findings, in respect of which the Tribunal, on a fair reading, found that it did not accept that there was any alienation between the first applicant and his family.  It was in those circumstances that it was open to the Tribunal to make an adverse finding in relation to the first applicant’s fears in respect of his family’s disapproval of his relationship between him and his wife.

15. The adverse finding made by the Tribunal in para.29 of the Tribunal’s reasons was open, and cannot be said to be unreasonable.  It is apparent on the material before the Court that the adverse credit findings made by the Tribunal cannot be said to lack an evident and intelligible justification.  For the reasons given, there was no jurisdictional error by the Tribunal not addressing a claim in respect of the first applicant’s wife’s family being violent people that was not advanced before the Tribunal or open on the papers.  No denial of procedural fairness is made out in relation to ground 1, and no jurisdictional error is made out by ground 1.

16. Insofar as the written submissions seek to suggest there was no evidence to support the adverse finding in para.29, for the reasons given, that proposition is without substance.  To the extent that the written submissions seek to advance a claim in relation to fear of the wife’s family being violent people, that is not a claim that was advanced or apparent on the material before the Tribunal.  Nothing in the written submissions makes out any jurisdictional error in relation to ground 1. 

17. In relation to ground 2, it was open to the Tribunal to make the adverse credit findings, as referred to above.  For the reasons summarised above in relation to those adverse credit findings, were rational, and reasonable.  This Court does not have jurisdiction to make fresh findings of fact in relation to the first applicant’s credit.  It was a proper matter for the Tribunal to consider the applicant’s credit. 

18. The first applicant’s migration history, and his departure from Australia and return to Indonesia, and his delay in making a protection application, and his avoidance of the authorities, were all rational grounds upon which the adverse findings made in relation to the first applicant having fabricated his claims was open.  Ground 2 fails to make out any jurisdictional error. 

19. From the bar table, the first applicant said that he did not understand why the Tribunal had not accepted his  story, and treated it as if made up.  The Tribunal provided cogent reasons in support of its adverse credit finding, to which I have referred.  The first applicant maintained that he did not understand why he had received an adverse decision.  The Tribunal provided detailed reasons, to which I have referred, as to why the Tribunal did not accept the first applicant’s claims.  Nothing said by the first applicant from the bar table identified any jurisdictional error.  The application is dismissed. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 June 2016