CAF15 v Minister for Immigration and Border Protection

[2016] FCA 1589

FEDERAL COURT OF AUSTRALIA

CAF15 v Minister for Immigration and Border Protection

[2016] FCA 1589

Appeal from:	CAF15 & ors v Minister for Immigration & anor [2016] FCCA 1336
File number:	NSD 999 of 2016
Judge:	RARES J
Date of judgment:	8 November 2016
Legislation:	Migration Act 1958 (Cth) ss 36, 425
Cases cited:	SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Date of hearing:	8 November 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	37
Counsel for the Appellants:	The first appellant appeared in person on behalf of the appellants
Solicitor for the First Respondent:	Mr R White of Mills Oakley
Counsel for the Second Respondent:	The second respondent filed a submitting notice

ORDERS

NSD 999 of 2016

BETWEEN:

CAF15

First Appellant

CAG15

Second Appellant

CAH15

Third Appellant

CAI15
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	8 NOVEMBER 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first and second appellants pay the first respondent’s costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

RARES J:

1. This is an appeal from the decision of the Federal Circuit Court to refuse the appellants Constitutional writ relief in respect of the decision by the Administrative Appeals Tribunal made on 14 September 2015 to affirm the Minister’s delegate’s decision not to grant the appellants protection visas:  CAF15 v Minister for Immigration [2016] FCCA 1336.

   Background

2. The appellants are husband, wife and their two children.  I made an order by consent that the husband represent the interests of the children for the purposes of these proceedings.  Both the husband and wife attended Court today, but the wife was content to allow the husband to put forward their submissions as to why the appeal should be allowed.

3. The husband and wife are citizens of the Republic of Indonesia.  The husband came to Australia in January 2008 on a student visa and subsequently was granted a further student visa that expired in November 2009, at which time he became an unlawful non-citizen.  In the meantime, the husband had returned to Indonesia on 23 April 2009.  On 2 May 2009 he, his wife and children arrived in Australia and have remained here ever since. 

4. In May 2014, the husband and his family came to the notice of the Department of Immigration and the husband participated in a compliance client interview with an officer of the Department at which he said that he was intending to apply for any visa in Australia but had no clue as to which.  In answer to the officer’s inquiries as to why he had not applied beforehand in that case, the husband said:  “I just didn’t know what to do.  I thought I would keep just struggling here”.  The officer asked whether there were any reasons why he could not return to his home country, to which the husband responded that it was hard, his family did not expect them to return, and he and his wife had “got married and ran away.  We worked hard to get money to come here.  That is why we don’t want to go back there”.  He said that he was scared to go back, which was the reason he had not previously attended at the Department to discuss his matters.  He also said that he would need to speak to an immigration agent. 

5. In the event, on 26 May 2014, the solicitor/migration agent who was acting for the appellants wrote to the Department saying that their firm had been instructed to apply on the husband’s behalf for a protection visa and attached the application forms for him and the other appellants.

6. In substance the husband’s claims to protection in his visa application centred around his past membership, while a student, of the People’s Democratic Party (PRD).  He said that he had been arrested for participating in a demonstration and that other members of the PRD had been hunted, kidnapped, tortured, jailed and even murdered.  He said that he had been harassed by the authorities and had had difficulties finding a job because of his past activities.  He claimed that he would be subjected to similar fates as other members of the party, and that the PRD was considered a reincarnation of the Indonesian Communist Party.  He claimed that he feared harm for himself and his family from the government and the security forces, including the police and military.  He asserted that the authorities in Indonesia had no respect for different political opinions and would seek to destroy persons who differed from the government.  He referred to the events in Indonesia in 1996 to 1998, when the Suharto regime arrested the leader and other members of the PRD, some of whom were kidnapped, tortured and later jailed or were still missing. 

7. On 9 June 2014, the appellants’ solicitor/migration agent wrote to the Minister’s delegate, making submissions before the husband’s scheduled interview.  The submissions centred upon the husband’s involvement, in his student days, as a political activist and member of the PRD.  It argued that during the Suharto era such activities were seen as subversive acts and that people participating in them were often killed or arrested by authorities and the husband himself had been arrested and detained for participating in a demonstration against the government.  The letter attached some country information in support of those assertions.  It asserted a fear that if certain candidates for the then current Indonesian Presidential election campaign were elected there would no longer be freedom of speech or political opinion, and, if that occurred, that the husband feared that he would suffer significant harm by reason of his political opinion because of the harm he claimed to have suffered in the past.

8. In his decision of 25 July 2015, the delegate found that the appellants were not entitled to protection visas.  The delegate recited the husband’s claims that I have summarised above.  The delegate noted the husband’s claims that, in 2001, he had been arrested during a rally and had spent one day in police detention, his name had been placed on a watch list and that this had made it impossible for him later to obtain a well-paid job with a reputable institution or government agency and that each time he had applied for a government job, he had been rejected.  The delegate also noted the husband’s claim that he had stopped paying membership fees for the PRD and reduced his involvement in political activities from 2003, and that, he had ceased from 2004, his involvement altogether with the PRD.

9. The delegate found that, first, between 1999 and 2003 the husband had been an active member of the PRD and had engaged in political activities as he claimed and, secondly, that from 2003, or at the latest 2004, the husband had distanced himself from all and any political activities.  The delegate found that the PRD had been severely persecuted in the period between 1996 and 1998 by the Suharto regime, but that from 1999 onwards the party was no longer banned and could, and did, participate in Indonesian legislative elections, but that it only had garnered a very small vote, indicating a minimal level of public support.  The delegate found that at the end of the Suharto regime, the PRD operated in the open, suffered no political repression and that there was no information to suggest that current, let alone former, PRD members were punished or persecuted for their prior activities.  The delegate also found that country information did not support the husband’s claims that Indonesian police interfered with peaceful protests, including those involving the PRD.  In answer to the husband’s claim he would be targeted as a PRD activist, the delegate said that he could not locate a single report published after 1999 to support such a claim.

10. The delegate accepted that the husband had been briefly detained during a rally in 2001 and released the next day.  He found that, even if the husband had been maltreated while in police detention in 2001, that was a single occurrence and that, because the husband had since stopped participating in any political rallies, he was not at risk of being in a similar situation in the foreseeable future.  The delegate found that the husband was clearly not at risk because of his past political activism and would not be at risk “even if he decides to resume his membership of the PRD”.  The delegate noted that, by the time of his decision, the presidential election had been held and the candidates about whom the husband had expressed fears in his submissions had been defeated.

11. He found that the husband’s history of attempts to avoid detection while remaining unlawfully in Australia had been determined by his economic motives rather than a fear of persecution, noting that the husband had failed to mention any of his claims to protection during his compliance interview.  The delegate also referred to the husband’s response in the compliance interview.  There, the husband had said that his family did not expect him to return because he had run away after getting married.  The delegate found that this indicated that he had left Indonesia because of reasons other than a well-founded fear of persecution for past political activism. 

12. The delegate also found that the husband apparently had not been concerned about his safety when he travelled back to Indonesia from Australia in 2009.  He concluded that the husband had used his story “which might be based on real facts of his biography as a make-weight for his claims of persecution where, in reality, he could engage in political activities without facing any serious risk of persecution and stopped doing so for personal reasons”.  The delegate found that there was no real chance of the husband being persecuted for any Refugees Convention reason and that likewise, for the purposes of his claim to complementary protection on the ground in s 36(2)(aa) of the Migration Act 1958 (Cth), he was not at risk of suffering significant harm were he to return to Indonesia.

    The Tribunal’s decision

13. The appellants applied to the Tribunal for a review of the delegate’s decision.  At the Tribunal hearing on 11 September 2015, the husband and his solicitor/migration agent appeared on behalf of the family.

14. The Tribunal recited the husband’s claims to date and then explored them with him in the hearing.  It found that the husband had fabricated his claims in order to remain in Australia following his detection as a unlawful non-citizen.  The Tribunal gave detailed reasons based on its assessment and evaluation of the husband’s evidence and country information.  It noted that the delegate had accepted that the husband had been associated with the PRD and had been detained for a brief period, but said that “as discussed during the hearing, the Tribunal has considerable doubts in relation to the entirety of the [husband’s] claims”.  It found that his evidence to it concerning his involvement with the PRD had been inconsistent with his previous evidence to the delegate.

15. The Tribunal explained that the husband had given inconsistent accounts of when he had ceased his involvement with the PRD, initially telling the Tribunal that he had ceased in about 2003 or 2004, but subsequently saying that occurred between 2006 or 2007.  The Tribunal dealt with the husband’s claim that he had had problems in Indonesia as a result of his involvement with the PRD because he had been unable to obtain a government job.  When the Tribunal commented that the husband’s failure to obtain a position with the Indonesian Department of Foreign Affairs and Trade in 2004 may have been because he had not completed any university qualifications, he responded that he had not applied for any other government jobs, but also believed that his sister had been denied a government position due to his involvement in the PRD.

16. In essence, the husband’s evidence in the Tribunal centred around the fears he claimed to have had relating to his asserted involvement with the PRD in the past and its consequences on him thereafter.

17. The Tribunal said that one reason for its concerns and adverse findings about the husband’s credibility was until it had prompted him in the hearing, he had not mentioned his claim that he had been arrested and detained at a political rally in 2001.  The Tribunal found the husband’s evidence in relation to that claim was vague and unpersuasive.  It did not accept his explanation that he had not raised it due to trauma or an inability to discuss it.  It found that he had manufactured his evidence in relation to that claim, and it relied, in addition, on the fact that the husband had not raised anything to do with his involvement with the PRD in his compliance interview.

18. The Tribunal did not accept the husband’s assertion that, prior to his detention in 2014, he had no knowledge of protection visas, finding him to have been an intelligent and resourceful person who would have made inquiries about ways of remaining in Australia lawfully.  It considered that his significant delay in applying for protection was not consistent with his claims to have feared harm in Indonesia as a result of his involvement with the PRD.

19. It found that his return to Indonesia to bring his family back to Australia in 2009 was indicative of a person who did not genuinely fear harm in Indonesia and did not accept his evidence as to why he would have exposed himself and his family to the risk of harm were he in genuine fear of harm in Indonesia.

20. Importantly, the Tribunal was not satisfied that the husband had ever been detained or arrested as a result of any involvement with the PRD in Indonesia, despite the delegate’s previous acceptance of that claim, because it found that the husband’s evidence to it on that matter was “problematic”.  The Tribunal did not accept that the husband’s failure to obtain a position with the Indonesian Department of Foreign Affairs and Trade had any connection with his involvement with the PRD, that he had ever been on a blacklist or that he had any adverse political profile in Indonesia.  Nor did it accept that he had been forced to move from his family home or been alienated by his family or any others, or denied employment.  It did not accept that his family was forced to move from another location or that he had been ostracised from, or by, his family. 

21. The Tribunal accepted that the husband may have been involved, until 2003, or, at the latest, 2004 with the PRD at a low level, despite considering it likely that he had manufactured the entirety of his claims to fear harm in Indonesia.  It found that the husband had not left Indonesia until several years after he ceased involvement with the PRD, and it did not accept that he did so because he feared harm.  Rather, the Tribunal found, he left because he had sought to study in Australia, and that, once his studies were unsuccessful, he ceased them due to his need to obtain employment to support his family. 

22. The Tribunal found that he had not returned to Indonesia after 2009 because he wished to remain here to work.  It found that he did not genuinely fear harm in Indonesia and had fabricated his claims in an attempt to obtain a visa for himself and his family to remain permanently in Australia, after several years of living here without permission. 

23. The Tribunal was not satisfied, having considered all of the evidence that, there was real chance that the husband would suffer serious harm for reasons of his actual or imputed political opinion, or any other Convention reason, were he to return to Indonesia now or in the reasonably foreseeable future, or that his family would suffer any such harm. Likewise, it was not satisfied that the husband and his family would suffer significant harm for the purposes of s 36(2)(aa) were he or they to return to Indonesia now or in the reasonably foreseeable future. Accordingly, the Tribunal affirmed the delegate’s decision to refuse the appellants protection visas.

    The proceedings before the trial judge

24. The appellants applied to the Federal Circuit Court to review the Tribunal’s decision on two grounds.  First, that they contended that the husband had mentioned previously, among other claims, that he feared for his life because “his wife’s family are violent people who disapproves [sic] of his marriage to his wife” and that during the hearing the Tribunal had not asked the husband anything “in great detail about this claim”.  The first ground asserted that the Tribunal had concluded that there was no real chance that the husband would suffer serious harm for that reason were he to return to Indonesia and that, accordingly, it had denied him procedural fairness and committed a jurisdictional error.  Secondly, the appellants complained that in [21] and [27] of its decision, the Tribunal had concluded that the husband had manufactured or fabricated his claim when he was not able to remember in detail events that had occurred some 15 years previously.  This ground asserted that it was unreasonable to expect anyone to remember exact details of circumstances that had occurred so long ago, so that the Tribunal committed a jurisdictional error.

25. On 12 November 2015, a registrar ordered that, by 18 January 2016, the appellants file and serve any affidavit containing additional evidence to be relied on, including any transcript of the Tribunal hearing.  However, the appellants filed no evidence in support of their application below.

26. The husband appeared at the hearing before the trial judge and presented his arguments in support of the two grounds of the appellants’ application.  His Honour noted that the husband had also presented written submissions.  The trial judge found that there was no evidence that the husband had ever raised any claim to fear harm due to his wife’s family being violent people.  His Honour also found that it was not apparent that any such claim arose in the Tribunal on the material in evidence before him.  He held that the Tribunal had appreciated that the husband had claimed that his family had disapproved of the relationship between himself and his wife and that it was open to the Tribunal not to accept that claim because it did not accept he was alienated.  His Honour also found that it was open to the Tribunal not to be satisfied by the husband’s claim that if he returned to Indonesia he would suffer serious harm because of that disapproval.

27. The trial judge found that the Tribunal had not made a jurisdictional error by failing to address a claim in respect of the wife’s family being violent people.  No such claim had been put to the Tribunal or was open on the material before it.  Accordingly, he dismissed the first ground of review.

28. His Honour also rejected the second ground on the basis that it was open to the Tribunal to make adverse credit findings based on material before it, and that those findings were rational and reasonable.  He said, as is the case, that in an application for judicial review, the Court has no jurisdiction to make fresh findings of fact in relation to the credibility of a party or a witness, including the husband, and that it was open to the Tribunal to come to the findings that it did.

29. His Honour held that the appellants had not established that the Tribunal had made any jurisdictional error and dismissed the application with costs.

    This appeal

30. The notice of appeal had a single ground of appeal that, in rejecting the two grounds in the Court below, his Honour erred in finding that, first, it was open to the Tribunal to conclude that the husband did not have a well-founded fear of persecution because of his active membership of the PRD and, secondly, the Tribunal did not commit a jurisdictional error by failing to find that his wife’s family were violent people who disapproved of their marriage. 

1. The husband represented himself, his wife (who has been present in Court throughout the hearing) and children today.  He said that he had only received a copy of the appeal book this morning.  For that reason, I had the relevant passages from the Tribunal’s decision interpreted to him.  Although he also appeared to have some familiarity with English, I did not require him to address his arguments other than through the interpreter.

2. The husband contended that the Tribunal failed to deal with his claim that his wife’s family were violent people who disapproved of their marriage, and that it should have considered that claim.  He was unable to identify any material in the appeal papers relating to, or give any recollection of having raised, a claim to that effect at any point in the administrative process from the time of his compliance interview to the Tribunal’s decision.  The husband also argued that the Tribunal made a jurisdictional error in failing to consider properly his claim to fear harm were he returned to Indonesia by reason of his past membership of and activities with the PRD.  He said that he was not satisfied with the Tribunal’s decision.

3. During the course of argument, I raised a question with the solicitor appearing for the Minister as to whether it might be possible for the appellants to argue that the Tribunal’s conduct, in reconsidering the delegate’s previous acceptance of the husband’s association with the PRD and his detention for a brief period, could have given rise to a jurisdictional error of the kind discussed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162-165 [33]‑[43] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. However, there is no evidence of any transcript of the hearing before the Tribunal. It is not possible to discern, without evidence as to the course of the proceedings in the Tribunal, whether the way in which it explored what the delegate had found could have supported any argument that there had been a denial of procedural fairness on that basis. Accordingly, there is no basis to find that the appellants were denied procedural fairness in a way similar to what occurred in SZBEL 228 CLR 152.

4. In any event, it was plain to the appellants, from the delegate’s decision, that he had rejected the claims that the husband’s past involvement with the PRD as an activist would expose him to a real chance of harm or being targeted and that he had left Indonesia because of a well‑founded fear of persecution for reason of his past political activism.  In those circumstances, I am not satisfied that there is an arguable basis to consider that the Tribunal failed to accord procedural fairness in the way in which it explored the husband’s claims relating to his asserted activities with the PRD and his alleged detention in 2001.  It follows that the first aspect of the ground of appeal fails.

5. As I have noted, the husband was unable to identify any basis on which it could be said that there was any issue before the Tribunal relating to his wife’s family, let alone their asserted propensity to violence.  I see no error in the trial judge’s rejection of ground 1 below.  The husband was unable to identify any material in support of the suggestion that he had articulated or put forward any claim to do with his wife’s family.  In those circumstances, the second aspect of the ground of appeal before me must fail.

6. In addition, for the reasons I have elaborated, the Tribunal complied with its obligation to conduct a review of the delegate’s decision under s 425(1) of the Migration Act 1958 (Cth) and the other requirements of Div 4 of Pt 7 of the Act. The Tribunal explored in detail the husband’s evidence and claims that there was a real chance that he would suffer harm were he to return to Indonesia for a Convention reason, or that he would suffer significant harm were he to return for the purposes of considering that Australia’s complementary protection obligations under s 36(2)(a) and (aa) of the Act. I am unable to perceive any basis on which it could be said that the Tribunal committed any jurisdictional error in its assessment of whether the husband had satisfied it that there was a real chance that he would suffer any such harm because of his active membership of the PRD in the past or for any other reason which he advanced before the Tribunal.

   Conclusion

7. The primary judge was correct to have dismissed the application for review.  In my opinion the appeal must be dismissed with costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:       2 February 2017