CCB19 v Minister for Immigration

[2019] FCCA 3679

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCB19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3679

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 438

Cases cited:

Kopalapillai v Minister for Immigration (1998) 86 FCR 547

Minister for Immigration v SZMTA [2019] HCA 3; (2013) 93 ALJR 252

Applicant: CCB19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1278 of 2019

Judgment of: Judge Driver

Hearing date: 16 December 2019

Delivered at: Sydney

Delivered on: 16 December 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L Vasan of Sparke Helmore

INTERLOCUTORY ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1278 of 2019

CCB19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 24 April 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 9 December 2019. 

3. The applicant, a citizen of India, first arrived in Australia on 23 March 2009 on a student visa.  His most recent arrival in Australia was in 2012.  The applicant then remained in Australia on a bridging visa from 4 February 2013.[1]  On 12 March 2015, the applicant made an application for a protection visa.[2]  On 11 March 2016, the delegate refused to grant the applicant a protection visa.[3]

   [1] Court Book (CB) 84

   [2] CB 1

   [3] CB 80

4. On 31 March 2016, the applicant lodged an application with the Tribunal for review of the delegate’s decision.[4]  On 23 April 2019, the applicant attended a hearing before the Tribunal, with the assistance of a Punjabi interpreter.[5]  On 24 April 2019, the Tribunal affirmed the decision under review.[6]

   [4] CB 97

   [5] CB 122

   [6] CB 128

Applicant’s claims

1. The applicant’s claims for protection were set out in an undated statement attached to his protection visa application, and centred around the breakdown of his relationship with his ex-wife, “K”.[7]  He claimed that he and K had several arguments and she frequently demanded money from him.  She divorced him after commencing a new relationship.[8]  K told her family that the applicant was abusive and was forcing her to get a divorce, which made her family furious.  K’s family harassed the applicant and his family, and threatened to kill him.

   [7] CB 39-40

   [8] CB 39

2. At the interview before the delegate, the applicant indicated that the divorce had been finalised at the end of 2009 in Brisbane.[9]  He confirmed that the threats by K’s family to his family had been confined to K’s family asking about him, but that this had not happened for 6-12 months before the delegate interview.  The applicant told the delegate that he could not relocate within India as his family only had one house.  The applicant’s family had been to the authorities in India, but K’s family had “more brothers” so the authorities took no action.  Before the Tribunal, the applicant claimed that one of K’s brothers was a member of a gang.[10]

   [9] CB 86

   [10] CB 134, [28]

Tribunal decision

1. The Tribunal recorded that the Minister’s Department had issued a non-disclosure certificate (s.438 certificate) pursuant to s.438 of the Migration Act 1958 (Cth) (Migration Act), which it found to be invalid.[11] Further, the Tribunal considered that the document covered by the s.438 certificate (an internal Departmental document relating to his identity) was irrelevant to the proceeding, as the applicant’s identity was not in issue.

   [11] CB 132, [17]

2. The Tribunal rejected the applicant’s claims to fear harm on the basis that they lacked credibility.[12]  The Tribunal accepted that the applicant was married to K.  However, it did not accept that the applicant was in a genuine relationship with K, or that her family threatened the applicant or his family members.[13]  In reaching this finding, the Tribunal had regard to the following matters:

   a)the applicant provided evidence that after divorcing K, he subsequently married two other women.  However, the applicant referred to his third wife only when recalling the visa applications that he had made in Australia.  The Tribunal found that this reinforced concerns it had that the applicant entered into these relationships to secure a migration outcome;[14]

   b)the applicant’s vague and unsubstantiated account of his marriage with K;[15]

   c)the applicant’s return to India in 2012, which the Tribunal considered was an indication that the threats to his safety from K’s family were not serious or credible;[16]

   d)the applicant’s claim that he and his family were receiving threats and living in fear of K’s family and her brother’s gang associates, was inconsistent with his evidence that his family continued to live in the same village and the gang had not carried out their threats;[17] and

   e)the significant delay in the applicant lodging a protection visa application.[18]

   [12] CB 135, [35]

   [13] CB 133, [24], CB 136, [39]

   [14] CB 133, [23]

   [15] CB 133, [24]

   [16] CB 135, [30]

   [17] CB 135, [31]

   [18] CB 135, [33]

3. As a consequence, the Tribunal rejected the entirety of the applicant’s claims to fear harm.[19] Accordingly, the Tribunal found the applicant satisfied neither the Refugees Convention criterion pursuant to s.36(2)(a) of the Migration Act, nor the complementary protection criteria pursuant to s.36(2)(aa) of the Migration Act.

   [19] CB 135-136, [35]

The current proceedings

1. These proceedings began with a show cause application filed on 24 May 2019.  The applicant continues to rely upon that application.  The grounds in it are:

   1The Tribunal fell into jurisdictional error by failing to take into account relevant information in the applicant’s protections claims. 

   2The Tribunal fell into jurisdictional error by taking into account irrelevant considerations.

2. The application is supported by an affidavit filed with it, which I received as a submission.  I have before me as evidence the court book filed on 17 July 2019.

3. I invited oral submissions from the applicant this morning.  He told me that everything that he had put to the Tribunal was the truth.  He is, of course, entitled to his opinion, but the reality is that the Tribunal made adverse credibility findings against him in relation to his claims.

4. The assertions that the Tribunal failed to take into relevant information and took into account irrelevant considerations are meaningless in the absence of particulars.  In that regard, I agree with the Minister’s submissions.

5. In the absence of particulars, it is unclear which claims the applicant contends were not considered by the Tribunal.  Nor is any failure to take into account information or evidence apparent on the material before the Court.  Ground 1 cannot succeed.

6. Again, in the absence of further particulars, it is difficult to determine which of the Tribunal’s findings the applicant seeks to impugn in Ground 2.  In any case, the decision record does not reveal that Tribunal identified any wrong issue or that it otherwise had regard to an irrelevant consideration.  It rejected the applicant’s claims for protection on the basis of adverse credibility findings and its assessment of the evidence before it was logically probative of the applicant’s credibility, and those credibility findings were open to it for the reasons it gave.[20]  No error is established by Ground 2.

   [20] See Kopalapillai v Minister for Immigration (1998) 86 FCR 547

7. The Minister’s submissions also identify an issue concerning a non-disclosure certificate.  I agree with those submissions.  The Tribunal was plainly correct to treat the certificate as invalid.  The Tribunal was also correct in treating the only document covered by the certificate as having no bearing upon the issues that had to be resolved in the review.

8. The s.438 certificate was issued over the Departmental file in this matter and while not raised as a ground of review, the Minister has properly raised the question whether this gives rise to jurisdictional error.[21]  The certificate purports to cover folio 62, an internal identification checklist.  The Tribunal identified that the certificate was invalid and irrelevant to the issues arising on review.  In circumstances where the applicant’s identity was not in dispute, no practical injustice arose from the Tribunal not putting the certificate or its contents to the applicant for comment.[22]

   [21] CB 94-95

   [22] See Minister for Immigration v SZMTA [2019] HCA 3; (2013) 93 ALJR 252

Conclusion

1. I conclude that the applicant is unable to establish an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:   17 December 2019