CDY15 v Minister for Immigration
[2017] FCCA 1800
•2 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDY15 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1800 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicants claim denial of procedural fairness – where there was delay between the Tribunal hearing and the Tribunal’s decision – no material effect on the Tribunal’s capacity to assess the Applicants’ evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424AA |
| Cases cited: CVA15 v Minister for Immigration and Border Protection [2017] FCCA 132 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 |
First Applicant: Second Applicant: | CDY15 CDZ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2354 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 24 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 2 August 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr Maloney |
| Solicitors for the Applicants: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Petrie |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2354 of 2015
| CDY15 |
First Applicant
| CDZ15 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants seek judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 16 September 2015. By that decision, the Tribunal affirmed a decision of a delegate of the First Respondent who refused to grant the Applicants Protection visas (‘the visas’).
The grounds of application are as follows:-
“1. The decision of the Administrative Appeals Tribunal is affected by jurisdictional error in that the Tribunal failed to deal with the Applicant's claims as they arose from the Tribunal's own findings or conclusions.
Particulars
a. The Tribunal accepted that the first-named applicant ('Applicant') had been attacked and seriously injured on two occasions by unknown persons.
b. The Tribunal did not accept the Applicant’s claim that those persons were members of a gang, whose former leader had been murdered by the Applicant's brother and who now sought revenge against the Applicant. On that basis, it affirmed the decision at first instance to refuse the applicants' claims.
c. The Tribunal was required to, and did not, consider whether the applicants faced a real chance or real risk of serious or significant harm pursuant to ss 36(2)(a) and 36(2)(aa), on the basis of the two attacks which the Tribunal accepted had occurred.
2. The decision of the Administrative Appeals Tribunal was affected by procedural unfairness in that the Tribunal's decision was based on the Applicant's credibility and a substantial delay had occurred between the Tribunal hearings and the Tribunal's decision.
Particulars
a. The applicants appeared before the Tribunal on 9 and 13 June 2014. The Tribunal made its decision on 16 September 2015.
b. The Tribunal acknowledged the long delay in reaching its decision, and acknowledged that the decision was grounded in adverse findings as to the Applicant's credibility.
c. The Tribunal had foreshadowed concerns about the Applicant’s credibility at the hearings. The Applicant subsequently offered numerous mutually supporting explanations for perceived deficiencies in his evidence. Those explanations were rejected by the Tribunal.
d. Assessing the Applicant's explanations required the Tribunal to consider the Applicant's demeanour at the hearings. Due to the 15-month delay between the hearings and its decision, the Tribunal was not able to reliably conduct that assessment.
e. In effect, the delay between the hearings and the decision deprived the Applicant of the benefit of his submissions.
f. Accordingly, the Tribunal's decision was procedurally unfair.”
Background
The Applicants are citizens of Malaysia. The First Applicant (‘the Applicant’) entered Australia on 18 March 2012 as the holder of a visitor visa. The Second Applicant entered Australia on 4 March 2012 also as the holder of a visitor visa.
On 5 March 2013, the Applicants applied for the visas. On 22 July 2013, the Applicant attended a protection visa interview with a delegate of the Minister. There was, in attendance, a Tamil interpreter to assist the Applicant.
On 15 October 2013, the delegate refused to grant the visas. On 28 October 2013, the Applicants applied to the Tribunal for review of the delegate’s decision.
On 6 February 2014, the Tribunal invited the Applicants to attend a hearing on 18 March 2014. On 19 February 2014, the Applicants appointed the Refugee & Immigration Legal Centre as their representative. The Tribunal hearing was postponed on two separate occasions at the request of the Applicant:-
a)on 19 February 2014, the Applicant's representative sought an adjournment “for a period of at least 45 days …” By a letter dated 26 February 2014, the Tribunal granted the adjournment, and scheduled a new hearing for 6 May 2014. This hearing was later re-scheduled to 5 May 2014;
b)on the day of the scheduled hearing, the Applicant's representative informed the Tribunal that the Applicant was unwell and sought a further adjournment. The Tribunal granted this request and adjourned the hearing to 9 June 2014.
The Applicants appeared before the Tribunal to give evidence and present arguments on both 9 and 13 June 2014. They were assisted at the hearing by their migration agent and an interpreter. A post-hearing submission was provided to the Tribunal on the Applicants behalf on 30 March 2015.
The Tribunal
In the Statement of Decision and Reasons (‘the Decision Record’) the Tribunal set out accurately the relevant law including s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’), “the complementary protection criteria”, before proceeding to a consideration of the Applicants claims and evidence. The Applicants claims were set out in some detail in the Decision Record, as was the Applicants evidence, being that given by each of the Applicant and his wife. The issues raised with both Applicants by the Tribunal at the second hearing were canvassed in detail in the Decision Record, and are set out to record the responses of the Applicants to various credibility concerns of the Tribunal as to the Applicants evidence, and similarly the Applicants responses to country information that the Tribunal determined relevant. The Tribunal, in doing so was considering what weight the Tribunal should give to that country information. The Tribunal also summarised the submissions made to it by the Applicants migration agent including post hearing submissions containing a response to the s.424AA of the Act puttage of adverse information to the Applicants by the Tribunal, amongst other things.
Applicant’s Claims
The Applicant’s claims, his wife relying on her husband’s claims and not raising any claims of her own, are relevantly set out in the Applicants submissions as follows:-
“…7. The Applicant's eldest brother, Thiagu, and his third-eldest brother, Gunasegar, became members of a political party, the People's Progressive Party (PPP), in 2002 or 2003.
8. In 2005, returning from a PPP meeting, Gunasegar and two of his friends were set upon by a gang acting at the behest of a rival political party. In the ensuing melee, the leader of that gang, Venukumar, was killed.
9. Gunasegar was subsequently tried for Venukumar's murder. In February 2010, he was convicted and sentenced to death. His conviction and sentence was upheld in subsequent proceedings in 2010, 2011, 2012 and 2014. His case was initially managed by Thiagu until the latter's death in what the Applicant regards as a suspicious motor vehicle accident in 2007. Thereafter, the Applicant assisted Gunasegar in managing his case.
10. Since the altercation between Gunasegar and members of Venukumar's gang, the Applicant has been attacked three times, twice suffering serious injuries. The first attack occurred in August 2010, when the Applicant and a friend were confronted by a group of about 20 men and attacked by six of them. The men were armed with sticks and knives; the Applicant was stabbed in the abdomen which required stitches, and suffered bruising and swelling from having been beaten. He was treated in hospital.
11. Subsequently, in July 2011, the Applicant was having dinner at a restaurant with a friend when eight men arrived on motorcycles. Six of the men attacked the applicant and his friend with swords. The Applicant tried to protect himself with a chair, but was struck twice across his head, and across his right arm and the back of his leg, and lost consciousness. He regained consciousness in hospital where he was kept for three days before being discharged; after being discharged he was subject to ongoing treatment, including surgery, to mend the bones in his arm.
12. The third incident occurred between the attacks in August 2010 and July 2011. The Applicant was chased by men on motorcycles whom he believes were part of the same group that had targeted him on the other occasions. He was not physically harmed on this occasion.
13. The Applicant has also experienced harassing phone calls. The first was in around March 2010, just after Gunasegar's conviction; the caller/s directed the Applicant not to take Gunasegar's case further. A second was in October 2010, after the Applicant and Gunasegar had elected to appeal the conviction; the caller/s indicated the Applicant was being targeted, and threatened him with death for having, by then, appealed his brother's conviction. A third call was received days after the Applicant's wedding in November 2011. Owing to the attacks and harassment, the Applicants had changed residence after their marriage. The caller/s informed the Applicant that they knew the Applicants were still in the area, despite having moved. The Applicants then moved to the Second Applicant's mother's house, some 650km away. The Applicant received a further phone call there; the caller/s told the Applicant that they knew his whereabouts.
15. The Applicant's efforts to seek assistance from police ultimately led to his being detained without charge for one week as a suspect in the first attack, before his friend's father contacted a lawyer who pressured the police into releasing the Applicant. The Applicant believes that he was treated this way because of his being a Hindu Tamil, particularly one who police would assume had gang affiliations.
16. The Applicant sought to relocate again, but concluded that he was unsafe throughout Malaysia and potentially in neighbouring countries. After the Applicant came to Australia, his wife suffered a miscarriage; she suffered a further miscarriage after arriving in Australia. The Applicants attribute the Second Applicant's miscarriages to the trauma of their experience. The Second Applicant became pregnant again and gave birth to a child on 30 November 2013.
17. In view of the above, the Applicants submitted that they satisfied s 36(2)(a) or, in the alternative, s 36(2)(aa) of the Migration Act 1958 (Act). Specifically, it was submitted on their behalf that they and their child had a well-founded fear of persecution from private individuals motivated to target the Applicant, and that a Convention nexus was established on the basis of the Applicant's membership of a social group consisting of his family, and the probable withholding of state protection because of the Applicants' ethnicity and religion. The alternative application of s 36(2)(aa) was said to arise from the risk of significant harm to the Applicants and their child through future attacks and harassment from gang members.”
Tribunal Decision
The Tribunal commenced its “findings and reasoning” section of the Decision Record with the following:-
“108. The tribunal notes the regrettable length of time since the last hearing. It has written these reasons after again consulting and reviewing all the available evidence before it, including the departmental and tribunal files, departmental interview and hearing recordings and its detailed summaries of hearing evidence. Its findings are based on matters raised or foreshadowed at the hearings. The tribunal has also had regard to the applicants’ responses on those matters and submissions from the applicants’ representatives including those received post-hearing.”
The Tribunal accepted that the Applicant's brother had been charged with, and convicted of, murder, around 2005. However, the Tribunal had “significant” doubts regarding the Applicant's claims about the circumstances surrounding the murder. The Tribunal's concerns were caused by, as accurately summarised in the First Respondent’s submissions:-
a)the Applicant's initial failure to mention that his brother was attacked after a political party meeting;
b)the Applicant's vague knowledge about his brother's political involvement;
c)the Applicant's inability to name which gang had been targeting him for many years; and
d)the absence of any reference to the deceased being a gang leader or member in reports about the murder provided by the Applicant.[1]
[1] First Respondent’s submissions filed 25 May 2016 at paragraph 11.
The Tribunal found the Applicant's lack of political knowledge and inability to name the relevant gang particularly problematic given the Applicant's claims that he had been in charge of his brother's criminal defence since 2007. The Tribunal also found it “implausible” that the Applicant would not know the name of the gang, given the claim that his brother had been convicted of murdering its leader and given the claim that the gang had subsequently targeted him.
On the evidence before it, the Tribunal did not accept that the Applicant's brothers were members of the Parti Pesaka Bumiputera Bersatu political party or that they were attacked by gang members. The Tribunal further did not accept the Applicant's claims that he or any member of his family were attacked or threatened by the gang after the murder. The Tribunal found the Applicant's evidence that his brother's car accident was caused by gang members to be “speculative and lacking in credibility”. It also found that the Applicant's evidence about the timing of the threats and attacks against him to be “confusing” and to have “changed over time”. The Tribunal set out in detail in its Decision Record those matters which it found confusing and inconsistent. The Tribunal also did not accept the Applicant's claims that the inconsistencies were caused by interpreting errors. For example, the Tribunal noted that:-
“...the applicant was asked several times to clarify his evidence regarding the timing of the [threatening] phone calls. His hearing evidence consistently indicated that both phone calls occurred before the August 2010 attack, which is not consistent with his prehearing statement as well as some statements in his post-hearing evidence.”
The Tribunal also rejected the Applicant’s claim that any deficiencies in his evidence related to the Applicant’s unfamiliarity with the Tribunal hearing, his general lack of education and/or trauma-related memory problems.
On the basis of police and medical documents, the Tribunal accepted the Applicant was attacked in August 2010 and July 2011 and sustained serious injuries as a result. However, it did not accept that the attacks were motivated by his brother's murder conviction in light of its other factual findings. At paragraph 147 of the Decision Record the Tribunal found:-
“As noted above the tribunal accepts that the applicant suffered two incidents of harm in the past but has not accepted the applicants' claims regarding the reasons or motivations for those attacks, namely that they were caused by Venukumar's gang and because of the applicants' association with Gunasegaran. There are many plausible reasons why the applicant could have been attacked on those two past occasions that, for whatever reason, he has chosen not to disclose. Given that the tribunal has rejected the claims he has made about the motivations behind those attacks, the tribunal does not accept on the evidence before it that there is a real chance or risk that the applicant will be the victim of similar attacks or face serious or significant harm in the reasonably foreseeable future.”
The Tribunal also rejected the claim that the Applicant was detained on false charges because of its credibility concerns as to the Applicant’s evidence and because of inconsistencies in that evidence. Similarly, it rejected the Applicant's claim that he was attacked on a third occasion by gang members on motorbikes because of the vagueness of that evidence.
The Tribunal observed at paragraph 148 of the Decision Record that, to the extent the Applicant raised any claims regarding his status as a Tamil, Hindu, non-Muslim or young Indian male, those claims were raised in the context of the Applicant being discriminatorily denied State protection. However, the Applicant expressly denied that he faced persecution due to his Tamil race, and the Tribunal rejected the Applicant’s claim that he would be discriminatorily denied State protection.
Consideration
Ground 2 has no substance. The delay between the Tribunal hearing and its decision had no material effect on the Tribunal’s capacity to assess the Applicants evidence. The Tribunal was clearly aware of the issues which might have arisen from the delay in making a decision as acknowledged by it in paragraph 108 of the Decision Record, referred to in paragraph 9 of these Reasons.
The Applicant did not demonstrate to the Court on this application in what manner the Tribunal’s exercise of its discretion miscarried by virtue of the delay between the final hearing date and the delivery of the Tribunal’s decision. The fact of the delay is not enough to establish jurisdictional error in the Tribunal decision.
A tribunal’s decision will be vitiated by undue delay in only the most exceptional or extraordinary of cases. [2] This is not such a case. The Tribunal gave very extensive and logical reasons, setting out all the relevant evidence it relied upon, and explaining why it made adverse credibility findings where it did so. Such findings were clearly open to the Tribunal on the evidence before it.
[2] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 at [5] per Gleeson CJ; at [115] per Kirby J; at [174] per Callinan and Heydon JJ.
Ground 1
The Applicant contends that the Tribunal ought to have, but failed, to consider whether the Applicant faced a real chance or risk that he would be the victim of attacks, or face serious or significant harm in the reasonably foreseeable future, from unknown persons. In advancing this submission, the Applicant placed heavy reliance on a decision of this Court in CVA15 v Minister for Immigration and Border Protection [2017] FCCA 132 (‘CVA15’). The facts of CVA15, as submitted by the First Respondent, may be readily distinguished from those relevant to the present proceeding.
In the present case, the only factual basis on which an implied claim arose was the acceptance by the Tribunal that the Applicant was attacked by unknown people on two separate occasions. All other factual claims made by the Applicant were rejected by the Tribunal. In particular, the Tribunal rejected the Applicant’s claims regarding the identity of the attackers, their political motivations or affiliations, and the alleged connection between the attacks and his family. The Tribunal’s findings at paragraph 147 of the Decision Record, as referred to in paragraph 14 of these Reasons deal with this matter. As submitted by the First Respondent, it was not for the Tribunal to speculate as to potential bases on which the Applicant may face fear from unknown persons a claim which only impliedly arises on the Tribunal’s factual findings, or to otherwise make the Applicant’s case for him.[3]
[3] Prasad v Minister for Immigration [1985] FCA 47 at 169-170 per Wilcox J.
The Applicant's claims under s.36(2)(a) of the Act were those claims under s.36(2)(aa). The Tribunal relied upon its considerations and findings under the Refugee Convention criteria, as it was entitled to, as part of its reasoning in relation to the complementary protection criteria. The Tribunal, as submitted by the First Respondent, addressed the complementary protection criteria by reference to the language of s.36(2)(aa) and, as it was entitled to, by reference to its findings of fact earlier made.[4]
[4] CVA15 v Minister for Immigration and Border Protection [2017] FCCA 132; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54]-[58] per Robertson J.
No jurisdictional error attends the decision of the Tribunal. The application will be dismissed and costs shall follow.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 2 August 2017
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