CFS17 v Minister for Immigration & Border Protection

[2021] FCCA 1973

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFS17 v Minister for Immigration & Border Protection [2021] FCCA 1973

File number(s):	SYG 1617 of 2017
Judgment of:	JUDGE VASTA
Date of judgment:	8 June 2021
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth)
Cases cited:	N/A
Number of paragraphs:	34
Date of last submission/s:	8 June 2021
Date of hearing:	8 June 2021
Place:	Brisbane
Solicitor for the Applicant	The Applicant in person
Counsel for the Respondent:	Mr Musgrove

ORDERS

SYG 1617 of 2017

BETWEEN:

CFS17

Applicant

AND:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	8 JUNE 2021

THE COURT ORDERS:

1.That the Application filed 25 May 2017 is dismissed.

2.That the Applicant pay the costs of the First Respondent fixed in sum of $5,600.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT
(Ex Tempore)

JUDGE VASTA

1. On 12 May 2017, the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed a decision not to grant the Applicant, CFS17, a protection visa.  On 25 May 2017, the Applicant asked this Court to review that decision.  The matter came before Registrar Morgan on 31 August 2017.  The Registrar listed the matter for final hearing on 20 June 2019 before Judge Manousaridis.

2. For some reason that is not apparent to me, the hearing did not go ahead, and the matter has subsequently been re-listed before me today, 8 June 2021.  This is more than four years after the Applicant first made his application to this Court.  On behalf of the Court, I apologise to the Applicant for having taken so long and keeping him in limbo for all this time.  This has just been an unfortunate effect of the pressures of this Court. 

3. The background to this matter is that the Applicant is a citizen of India.  He came to Australia on 21 June 2014. He made his application for protection on 31 July 2014. 

4. The Tribunal properly recognised that it must consider whether the Applicant had a well-founded fear of persecution.  The Tribunal correctly identified that the fear of persecution must be for one of five Convention reasons of race, religion, nationality, membership of a particular social group and/or political opinion.  The Tribunal also correctly identified that, in the alternative, it must consider whether the Applicant meets the complementary protection criteria.  Again, the Tribunal correctly identified that to meet those required provisions; there must be substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to India, that there is a real risk he will suffer significant harm.

5. The claims made by the Applicant stem from circumstances that occurred after his father's death.  He said that he came from an orthodox, average Muslim family in Kerala, in India.  He said his father was a merchant, and his mother was a housewife.  He said his parents had two children, himself and his younger brother “S”.  His father died on 10 August 2005.  He said that as far as he was concerned when his father died, his mother, his brother and himself were the only heirs his father’s estate. But soon after his father died, a woman called “M” appeared and claimed to be his father’s the first wife.

6. The Applicant said that the woman “M” and her daughter took the Applicant, his mother and his brother to Court, claiming that she is owed some of the properties of the father.  He said that the lower Courts have dismissed the application that “M” brought to the Court, but the person “M” appealed to higher Courts, including the High Court of Kerala, which stayed the lower Court order.  The Applicant said the case has been going for more than seven years now.  Given that the decision of the AAT was given four years ago, the Applicant told me in Court today that the case is still ongoing, now 11 years later. 

7. The Applicant said that, in January 2006, he was bashed by some gang members and admitted to hospital.  He said when he was in hospital he was warned by some men and told that he would be killed, and so would his family members.  He said that he thought that this was all to do with the Court case that was brought by “M”.  Because of this, he moved to London in April 2006. 

8. He said that his brother was then badly injured in an accident in June 2009, when he was hit by a bus. The driver was fined by the Court, but the Applicant said that the driver told his brother that the accident was pre-planned and had to do with the Court case. 

9. The Applicant had been living in London for over four years, it would seem illegally, and he returned to India around September 2010.  He said that when he returned from London, some people came to his house, dragged him out of his house and took him to an isolated area where he was assaulted.  He said that he became unconscious and realised that his leg had been broken and badly twisted.  He said that the intention of these people was to make him disabled. 

10. He said that he made a complaint to police but believes they have been unable to locate the culprits behind the incident.  The Applicant claimed that the police did not take any interest in the case because the people behind his assault are people of influence.  He said that the people who were behind it are obviously the people like “M”, who are trying to get his father’s property. 

11. The Applicant gave the Tribunal documents from the subordinate Court. The documents stated that the person “M” was the Applicant and her daughter was the second plaintiff.  The Applicant’s mother is listed as the first defendant, the Applicant is the second defendant, and the Applicant’s younger brother is the third defendant.  The fourth defendant was the Applicant’s Aunt (his father’s sister) and the fifth defendant was a man who is the son of the woman “M”.  The Applicant also provided a statement from an advocate at the Victoria Complex in Kasaragod who said that the Applicant and his mother and brother are defendants in a suit filed by “M”. 

12. The report lists a crime number of 877/2005.  The advocate stated that the lawsuit was dismissed with costs in favour of the Applicant's family, but “M” appealed to the High Court.  The advocate stated that, in January 2006, the Applicant was attacked and admitted to hospital and that his brother was seriously injured, suspiciously, in June 2009.  The Applicant also provided a first information report, which detailed that a bus hit a motorbike that was ridden by the Applicant’s younger brother. 

13. The Tribunal conducted its hearing on 10 May 2017.

14. The Applicant was asked about details of threats and assaults that were coming from people associated with “M”.  He said that in 2005, people associated with “M” began making threats and saying that the father’s property belonged to them.  The Applicant said that the first assault occurred at the end of 2005, or in early 2006, when he was approached, and his hand was injured.  He said that he was treated at a clinic, and plaster was put on his finger. 

15. He reiterated that, in 2010, when he returned from the United Kingdom, he was attacked and seriously injured.  The Applicant advised in his statement, and also in the document provided by the advocate, that the Applicant was attacked and seriously injured and admitted to hospital in 2006.

16. The Tribunal noted that when the Applicant spoke to the Delegate, he said that he was bashed in 2006.  He said that he was attacked by a gang of people and he was hospitalised, and both his knees were injured and his foot was twisted.  He was then advised that, in his statement, he had said that the injuries to his legs occurred in 2010.  His response was that the injuries to his leg did occur in 2010, and in 2006 his hand was injured. 

17. The Tribunal said that it did not accept the Applicant’s explanation for the inconsistencies between what occurred in 2006 and 2010.  The Tribunal said that those inconsistencies gave considerable concerns that the claims may have been manufactured.

18. The Tribunal was also sceptical as to the documentation provided.  The Tribunal noted that one of the defendants on the court documentation is actually the son of “M”.  The Tribunal said that it was puzzling that the son of “M” was a defendant rather than a plaintiff, given that the daughter of “M” was a plaintiff.  The Applicant claimed that this was a mistake and that he was unsure how it happened.  He said that the matter is now in the High Court, and that the application to the High Court was made in 2009.  The Tribunal noted that there was no documentary evidence to confirm those views and the Applicant said that none was available, and that he would only be able to obtain documentation once the High Court makes a decision.

19. The Tribunal said that they did not accept that the Applicant had satisfactorily explained why there would be a mistake on an official Court document or why the son of “M” would be a defendant and not a plaintiff.  The Tribunal did not accept that there would not be any documentation from the High Court available if the matter was currently being pursued by the woman “M”.  The Tribunal also did not accept that there would not be some documentation from the High Court that could be available if the matter were truly in the High Court being pursued by the woman “M”.

20. With regard to the document provided by the advocate, the Tribunal could not understand that an assault that occurred in 2006 could have a crime number of 877/2005.  The Tribunal also said that they could not understand why an assault that occurred in 2006 was recorded with a crime number in 2005.  The Tribunal said that the problematic nature of these documents raises concerns that the claims may have been fabricated. 

21. The Tribunal also considered that the circumstances of the Applicant do not support his claims to fear harm in India.  The Applicant had filed documents seeking protection in Australia in 2014, but he has returned to India on two occasions after telling the Department that he needed Australia's protection.  The first time was in 2015, and the second time was in 2016.  He said that he returned to India because of his mother’s illness and obligations, and said that it was a compulsory situation.  The Tribunal did not accept that his return to India on those occasions indicated that he genuinely fears harm in India. 

22. The Tribunal also pointed to inconsistent evidence regarding the Applicant's claims about what he has experienced at the hands of the woman “M” and her associates. 

23. There was considerable documentation given to the Department regarding the Applicant's employment as a seaman.  The Applicant denied that he was a seaman when this was discussed with him during the interview, and he said that he did not have any involvement in the documentation that would show that this was his occupation.  He said that this was all prepared by an agent who was dishonest and that he, the Applicant, only signed what was put in front of him.  The Tribunal was not satisfied that the Applicant was truthful about this aspect.

24. The Tribunal said that they were drawn to the conclusion that the Applicant had fabricated the totality of his claims about fearing harm in India.  The Tribunal did not accept that a woman called “M” made a claim on the father's estate.  The Tribunal did not accept that there was a Court case in relation to this matter.  The Tribunal did not accept that the Applicant, the mother or the brother were harmed by these people.  The Tribunal did not accept that “M” or her family had political connections of some kind, such that they had influence in the Courts.  The Tribunal did not accept that the Court documents and the letter from the advocate contained truthful information. 

25. The Tribunal had regard to the Applicant's comments that the Tribunal could verify the documents, but the Tribunal said that because the Applicant is an untruthful witness the Tribunal was not satisfied that any inquiry was necessary or appropriate.  The Applicant made a claim that when he returned to India in 2015, as I have previously detailed, some people tried to harm him, and his finger was injured.  The applicant provided a document from a hospital which stated that the Applicant was seen on 3 September 2015 and reported an assault which required suturing.  The Tribunal was prepared to accept that the document was genuine, but did not accept that this injury had anything to do with the person “M” or any associates of “M”.

26. The Tribunal accepted that the Applicant's brother was injured whilst riding a bicycle or motorcycle in 2009 and had lodged a compensation claim in relation to this incident.  The Tribunal did not accept that this had anything to do with the person “M” or that the bus driver admitted that it was perpetrated on behalf of the person “M”. 

27. The Tribunal then summarised that the Applicant did not have a well-founded fear of persecution for any of the five Convention reasons. The Tribunal also found that there were not substantial grounds for believing that there was a real risk that the Applicant would suffer significant harm if he was removed from Australia back to India. 

28. Therefore, the Applicant did not meet the refugee criterion, nor the complementary criterion.  For those reasons, the Tribunal affirmed the decision of the Delegate not to grant the Applicant a protection visa. 

29. The grounds of this application are that:

    1.The tribunal did not look at my complementary protection properly because only gave conclusion there were no reason given why I did not [sic] diserve [sic] complementary protection.

30. In his affidavit filed 25 May 2017, the Applicant also said that:

    The Tribunal failed to consider an integer of my claim.  I need justice.  Also, Im [sic] a disable [sic] guy.

31. The Applicant appeared before me today representing himself, but with the assistance of an interpreter.  He said that there were no documents that he gave to the Tribunal that were fabricated, and seemed somewhat perturbed that the Tribunal made the finding that they did regarding his documents.

32. As previously recounted, he told the Court today that his case was still pending in the High Court.  He said that the AAT did not truly review whether he deserved a “complementary protection visa” and did not consider complementary protection.  He said that he could not go back to India. 

33. The Minister helpfully identified that there were three aspects to what the Applicant was saying to me, illustrating jurisdictional error.  The first was that the Applicant was submitting to the Court that the finding regarding the fabrication of the documents was not open on the evidence. 

34. On the evidence that was before the Tribunal, the inconsistencies and the fact that the documents themselves did not seem to make sense gave rise to a very strong suspicion that they were not genuine.  The Tribunal also noted that there was a great deal of country information that indicated that fraudulent documents are easily obtained in India, and that there were unscrupulous migration agents in India involved in selling packages of false documents for persons seeking visas to countries such as Australia. 

35. The question is, on this evidence, was a conclusion that the documents were fabricated, one that is open.  To my mind, it was that such document was open to such a finding.  It is not a point for the Court to consider whether a Tribunal should have made such a finding, it is whether a Tribunal could have made such a finding.   On the evidence before the Tribunal, it seems to me, that the Tribunal could have made such a finding. Therefore, no jurisdictional error is illustrated. 

36. The second aspect was the Applicant’s claim that the action brought by “M” was still pending before the High Court.  The matter was one for the Tribunal to either accept or not accept, and it was for the Applicant to prove the existence of these facts to the satisfaction of the Tribunal. 

37. The Tribunal did not accept any explanation as to why there would be a mistake on the documents.  The Tribunal did not accept that there would not be any available documentation from the High Court if this matter were truly being litigated.  The Tribunal did not accept that a woman called “M” made a claim on the estate, which led the Tribunal to say that they were not satisfied that there had been a Court case in relation to this matter. 

38. This was a matter for the Tribunal alone to consider.  Just like it had done with a number of other aspects, the Tribunal came to a conclusion that was open on the evidence. Therefore, no jurisdictional error has been illustrated. 

39. The final aspect, and probably the one that the Applicant argued with the most passion, was the Applicant's contention that the Tribunal did not consider the complementary protection provisions.  This seems to be a misapprehension of the writing style of the Tribunal.  This ground seems to stem from a misapprehension as to the way in which the Tribunal set out its reasons.

40. The Tribunal understood that it was looking at the refugee provisions and, as an alternative, the complementary protection provisions.  In paragraph 3 of the Reasons, the Tribunal set out what it needed to do.  From paragraph 4 onwards in their decision, the Tribunal then decided what evidence it accepted and what evidence it rejected.  The Applicant's claims for protection related to his fear of the person “M”, which emanated from the actions “M” had taken after the father's death. 

41. At paragraph 30, the Tribunal went through the last of these claims and found that they did not accept what the Applicant had said.  At paragraph 31, the Tribunal summarised that because of its findings on these claims it did not find that the Applicant met either the refugee criteria or the complementary protection criteria.  The reason for not meeting that criteria is very clear in the considerations from paragraphs 4 to paragraphs 30, of which I have already discussed. 

42. Therefore, I find that there has been no jurisdictional error illustrated. 

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       1 September 2021