CFZ19 v Minister for Immigration
[2019] FCCA 3714
•18 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFZ19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3714 |
| 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, 424A, 424AA, 438 |
| Cases cited: CQG15 v Minister for Immigration [2016] FCAFC 146 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 VJAF v Minister for Immigration [2005] FCAFC 178 |
| Applicant: | CFZ19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1376 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
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 1376 of 2019
| CFZ19 |
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
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 16 May 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 10 December 2019.
The applicant is a male citizen of India who arrived in Australia on 18 January 2015 holding a visitor (subclass 600) visa that was valid until 18 April 2015.[1]
[1] Court Book (CB) 19, 21, 157, 217
On 18 February 2015, the applicant lodged a protection visa application.[2] His wife and two infant children, who are not applicants in the current judicial review proceedings, were included in the applicant’s protection visa application as dependent members of his family unit but did not make independent claims.[3] On 4 August 2015, the wife (at her request) and the two children were withdrawn from the applicant’s protection visa application.[4]
[2] CB 1-35
[3] CB 36-110
[4] CB 140-142
In the applicant’s protection visa application[5] and accompanying written statement,[6] the applicant outlined his written protection claims. He claimed he was a businessman and the proprietor of a named firm in India. He also claimed he was a “Congress party supporter” and had to donate money regularly to the Bharatiya Janata Party (BJP) to run his business in Delhi. The applicant claimed the BJP had “abandoned their ideology overtime” and as a consequence, he became an “active member” of the Aam Aadmi Party (AAP) immediately after it was formed. He campaigned with the AAP during the 2013 Delhi state assembly election. In 2013, the AAP emerged as the second largest party in Delhi and formed a minority government.
[5] CB 30-32
[6] CB 111-113
The applicant claimed he stopped campaigning for the AAP after BJP supporters discovered that he had become a major donor of the AAP. BJP supporters threatened to kill his family members if he did not pay them ten million rupees. He claimed the BJP attacked him “many times” and ransacked his business.
The BJP won the 2014 general election in India and were expected to do well in the Delhi election. The applicant claimed the BJP used “dirty tactics” such as threatening candidates and kidnapping party activists. Following the AAP’s landslide victory in the Delhi assembly election, BJP members went looking for the applicant at his house so the applicant and his family moved in with his wife’s parents to escape harm. The applicant feared he went to the police for protection but they refused to help him because the BJP was in power. The applicant claimed to fear being killed if he returned to India for reasons of his political membership of the AAP and claimed he would not be protected by the authorities.
Copies of pages of the visa applicants’ passports and marriage certificate were provided in support of the applicant’s protection visa application.[7]
[7] CB 114-118
On 19 February 2016, the applicant was invited to attend an interview before the delegate scheduled on 4 March 2016,[8] but he failed to attend.[9]
[8] CB 143-151
[9] CB 159
On 12 May 2016, the delegate refused to grant the applicant a protection visa.[10] The delegate rejected the applicant’s claims because they lacked detail and substantiating evidence. The delegate also did not accept that the police would not protect him and instead found on the basis of independent country information that the applicant would be afforded sufficient protection by the Indian authorities and the police.[11]
[10] CB 157-167
[11] CB 165
The Tribunal’s proceedings
On 6 June 2016, the applicant lodged an application with the Tribunal to review the delegate’s decision, which attached a copy of the delegate’s decision.[12]
[12] CB 168-174; see also: item 16(a) of the CB index
On 5 October 2018, the Tribunal wrote to the applicant to confirm his matter was ready for a hearing and notifying him to provide any additional evidence or to appoint any representative as soon as possible.[13]
[13] CB 181-182
On 8 April 2019, the Tribunal invited the applicant to attend a hearing scheduled for 30 April 2019.[14] On 18 and 29 April 2019, the Tribunal successfully sent the applicant “SMS Hearing Reminders”. Two other unsuccessful “SMS Hearing Reminders” were also sent on 19 and 30 April 2019.[15]
[14] CB 184-190
[15] CB 194-195
On 30 April 2019, the applicant attended the Tribunal hearing with the assistance of a Hindi interpreter.[16]
[16] CB196-198
At the hearing, the applicant provided the Tribunal with a completed Application for Divorce,[17] Divorce Order[18] and a statutory declaration signed by his ex-wife[19] that confirmed the applicant and his wife divorced on 22 November 2016. The applicant also gave the Tribunal a letter addressed to him from “Family & Community Services” stating that it closed the protection files relating to the applicant’s children,[20] and pages from the applicant’s passport.[21]
[17] CB 202-209
[18] CB 210
[19] CB 199-200
[20] At CB 201
[21] CB 211-219
The Tribunal’s decision
On 16 May 2019, the Tribunal made a decision affirming the delegate’s decision.[22] The Tribunal set out the background to the matter[23] and summarised the applicant’s claims before the Minister’s Department.[24]
[22] CB 222-237
[23] CB 223, [1]-[3]
[24] CB 223-224, [4]-[6]
The Tribunal then summarised the basis of the delegate’s decision.[25]
[25] CB 223-224, [7]-[10]
The Tribunal also noted there was a certificate issued pursuant to s.438 of the Migration Act 1958 (Cth) (Migration Act) on the Departmental file over folios 130-132, 143, 151 and that the s.438 certificate was issued on the basis that the identified folios “may contain information relating to an internal working document and business affairs”.[26]
[26] CB 225, [11]
The Tribunal found that the reason for issuing the certificate was neither necessary nor sufficient for a claim in public interest immunity and no reason meeting the description in s.438(1) was communicated to the Tribunal. As the Tribunal found the non-disclosure certificate was invalid, it also found it did not trigger s.438(3)(a) or s.438(3)(b), and proceeded to treat the documents covered by the certificate as if there was no certificate.[27]
[27] CB 225, [11]
The Tribunal expressly found that the documents the subject of the certificate were irrelevant to the applicant’s claims other than the email (folio 143) suggesting why he did not attend the scheduled interview. The Tribunal recorded that it discussed the certificate with the applicant at the hearing and informed him that it appeared to be invalid and the documents were irrelevant to his claims. The Tribunal expressly found that the fact that the applicant did not attend the scheduled interview with the delegate did not impact on its consideration of his claims and found the documents covered by the certificate had no bearing on his claims.[28]
[28] CB 225, [12]
The Tribunal summarised what occurred at the hearing.[29] In particular, it noted that the applicant claimed that BJP leaders would kill him and that the whole party throughout the “whole of India” targeted him, not simply one person.[30] He also claimed that he did not want his children living in India for a long period because they could be harmed by the BJP due to his situation with them. When the Tribunal asked him if there was a date for when he would move his children from India, the applicant stated no.[31] The Tribunal also put to the applicant identified inconsistencies between his oral evidence and written claims,[32] and noted the implausibility of some of the evidence he gave at the hearing.[33]
[29] CB 226-227, [14]-[29]
[30] CB 226, [15]
[31] CB 226, [21]
[32] CB 227, [23], [25]
[33] CB 227, [24], [26]
The Tribunal accepted that the applicant was a citizen of India.[34] It also noted legal principles and statutory provisions relevant to assessing credibility,[35] and found it had a number of concerns with the applicant’s “inconsistent”, “changing” and “unlikely” evidence.[36] It identified multiple reasons to support its adverse credibility findings.
[34] CB 227, [32]
[35] At CB 228, [33]-[35]
[36] CB 228, [36]
First, the Tribunal found the applicant’s oral evidence before it about why he left his wife and children at his in-laws’ house in India after he was shot at and went into hiding, had changed and was unpersuasive. The Tribunal found that if the applicant’s wife and children were at risk of being killed or kidnapped, then he would not have left them at his in-laws’ house, which was only 30 minutes from their home and so close to danger.[37]
[37] CB 228, [37]-[38]
Secondly, the Tribunal placed adverse weight on the fact that the applicant sent his children back to the town where he had lived and had allegedly been threatened with death.[38] The Tribunal noted the applicant had agreed it would be easy for the BJP to find his children but had said that nothing had happened to them so far. The Tribunal did not accept the applicant’s explanation that he could not keep his children in Australia on the basis that he had to work. It found that if the applicant genuinely faced and continued to face the level of threats and harm he claimed, then he would not have sent his children back to India and that his willingness to send them back undermined his claims.[39]
[38] CB 228-229, [39]
[39] CB 229, [40]
The Tribunal did not accept the applicant’s claim at the Tribunal hearing where he stated that when the applicant came to Australia, the BJP stopped pursing him but would “start again” if he returned. Given the applicant’s claims about the brutality and the willingness of the “whole of the BJP” to harm and punish him, the Tribunal found the applicant’s claim at the Tribunal hearing that his mother’s ability to continue residing in his home town undermined his claim that the BJP were brutal killers and took serious actions to get what they want, given they could abduct and ransom her but did not do so.[40]
[40] CB 229, [41]
Thirdly, the Tribunal found the applicant’s indifference about who the local BJP leaders were was inconsistent with his claims. The Tribunal was also concerned that he then changed his evidence and said he was aware that the BJP leaders were “different to before”.[41]
[41] CB 229, [42]
Fourthly, in his protection visa application,[42] the applicant declared that he travelled to Bangkok for three days in April 2014 before returning to India, which the Tribunal found was inconsistent with his claimed circumstances. The Tribunal put to the applicant that his travel was inconsistent with his claim to be a target and in hiding and noted the applicant declined to comment. It found his inability to explain his travel undermined his claims and credibility.[43]
[42] See at CB 24
[43] CB 229-230, [43]
The Tribunal further noted that the applicant’s passport indicated he received a police clearance to travel to El Salvador.[44] The applicant initially denied having sought to travel anywhere else, but then claimed he was going on a short business trip but was attacked by the BJP before he could go. The Tribunal found that the applicant would have recalled his travel attempts to El Salvador while experiencing such fear and being in hiding and also found that his proposed return travel undermined his claimed circumstances.[45]
[44] See at CB 215
[45] CB 230, [44]
Finally, the Tribunal found the applicant’s evidence about how often the BJP attacked him with the aim of killing him and his involvement with the AAP was inconsistent.[46] It also found that in his written statement the applicant claimed the BJP “attacked to kill” him many times,[47] but in oral evidence he said he was attacked three times and it was on the third occasion that they attacked to kill him.[48] The Tribunal had regard to the applicant’s oral evidence that he was first involved with the AAP in 2014 and could not reconcile why the BJP would therefore threaten him in 2013. The Tribunal was not satisfied with the applicant’s explanation as to why he was harmed in 2013 and found this also undermined his credibility.[49]
[46] CB 230, [45]
[47] See at CB 112
[48] CB 230, [46]
[49] CB 230, [47]
On the basis of these concerns, the Tribunal was not satisfied that the applicant was a witness of truth.[50]
[50] CB 230, [48]
In addition, the Tribunal identified inconsistencies in the applicant’s evidence about his political allegiances. In his written statement, he claimed he supported the Congress Party and was forced to donate to the BJP,[51] but, in his oral evidence to the Tribunal he claimed that he supported the BJP for three to four years before switching to the AAP. The Tribunal considered the applicant’s explanation for his changing evidence and although it considered it unlikely, gave him the benefit of the doubt and did not place any adverse weight on the inconsistent evidence. The Tribunal did not accept, however, that this overcame the other identified difficulties with his evidence.[52]
[51] See at CB 111
[52] CB 230-231, [49]
The Tribunal found the applicant did not offer any explanation for the other inconsistencies in his evidence discussed at the hearing, other than that his written statement was incorrectly recorded.[53] The Tribunal did not accept that the applicant’s written statement was incorrectly transcribed,[54] or that any nervousness the applicant may have encountered at the hearing could explain the difficulties in his evidence.[55]
[53] CB 231, [51]-[52]
[54] CB 231, [51]
[55] CB 231, [52]
Having considered the applicant’s concerns cumulatively, the Tribunal found the applicant was not a witness of truth when claiming to fear harm for the reasons set out in his protection claims.[56]
[56] CB 231, [53]
The Tribunal did not accept: the applicant’s claims relating to political matters in India; that he was targeted, subject to threats or adverse attention; that he was shot at, otherwise harmed or that threats were made to kidnap or harm his family; that he made donations or was forced to make donations and sought state protection which was refused for political reasons; or that he was in hiding and moved to avoid harm.[57]
[57] CB 232, [54]
The Tribunal also did not accept that the applicant had any interest in expressing his political opinion. It noted that he claimed to be a business owner and found he was resourceful and would be able to contribute to the reasonable expenses of his family such that he did not face a real chance of serious or significant harm for reasons of employment, economic or financial reasons.[58]
[58] CB 232, [55]
The Tribunal noted it informed the applicant at the hearing that if it found that his claims were not true, the country conditions did not otherwise indicate that he faced a real chance or serious or significant harm.[59]
[59] CB 232, [56]
The Tribunal did not accept the applicant’s claims of actual political involvement or that he was imputed with any political involvement or support that would lead to a real chance of serious or significant harm. It found there was no credible evidence demonstrating that the applicant would face a real chance of future harm.[60]
[60] CB 232, [56]
The Tribunal was not satisfied that the applicant came to Australia to escape any harm or adverse interest in India, and did not accept that he faced a real chance or risk of harm on his return to India or would require access to state protection for any reason.[61]
[61] CB 232, [57]
Having considered his claims individually and cumulatively and noting that the applicant was not a credible witness, the Tribunal rejected all of his claims and found he did not have a well-founded fear of persecution as a refugee for any of the reasons claimed.[62] The Tribunal found the applicant did not meet the refugee criterion under s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[63]
[62] CB 232, [58]
[63] CB 233, [61]
The Tribunal did not accept that the applicant experienced any adverse interest or had the political profile he claimed. It found he had made up his protection claims and did not accept that he faced a real risk of being imputed with any political opinion or was forced to pay donations. Having considered the applicant’s claims on a cumulative basis, the Tribunal was also not satisfied that he faced a real risk of significant harm for any reason.[64]
[64] CB 233, [62]
The current proceedings
These proceedings began with a show cause application filed on 6 June 2019. The applicant continues to rely upon that application. There are two grounds in it:
1.The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
2.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India for being a member of AAP.
The application is supported by an affidavit filed with it. I received that affidavit as a submission.
I have before me as evidence the court book filed on 16 August 2019. I also received into evidence two documents handed up by the Minister’s solicitors. Exhibit R1 is a letter dated 10 December 2019 to the applicant at his address for service in Liverpool, enclosing the Minister’s submissions. The applicant denied receipt of the submissions, but I am satisfied they were sent. I adjourned temporarily while the submissions were read to the applicant.
Exhibit R2 is a bundle of documents purportedly covered by a non-disclosure certificate under s.438 of the Migration Act. The certificate and the documents purportedly covered by it are discussed by the Tribunal in its reasons at [11] and [12].[65]
[65] CB 225
The Tribunal concluded correctly at [11] that the certificate was invalid. The Tribunal was also correct at [12] in finding that the documents purportedly covered by the certificate had no bearing on the review. No legal issue arises concerning the certificate or the documents purportedly covered by it.
The applicant sought an adjournment of today’s hearing for several reasons. The first was the oral submission by the applicant that there were interpretation problems at the Tribunal hearing. This had not been mentioned previously. There is nothing to support that proposition in the court book, and neither had the applicant advanced it previously as a ground of review. The applicant asked me to adjourn the hearing so that he could gather material to support the argument. I refused the adjournment on the basis that the applicant had already had adequate time to amend his application and to prepare for today’s hearing.
The applicant then requested an adjournment on medical grounds. He stated that he suffers from a blood clot on the brain and might be at risk if dealing with a difficult circumstance. He handed up a bundle of medical records. For the most part, these were the results of blood tests or requests for blood tests. I noted that the test results included somewhat elevated results for cholesterol and blood sugar. There was also a medical imaging report which indicated no current brain abnormalities, although it did indicate there was evidence of some ischemic heart issue in the past. Having perused those documents and returned them to the applicant, I was not persuaded that the circumstances warranted an adjournment for medical reasons.
There is no substance in the grounds of review advanced by the applicant. The applicant was not able himself to advance anything orally in support of those grounds. He did not dispute my analysis of them during the course of argument. The Minister’s submissions deal adequately with the grounds. I agree with those submissions.
Ground 1
Ground 1 alleges the Tribunal failed to comply with its obligations under s.424A of the Migration Act by not giving the applicant clear particulars of information it considered would be the reason or part of the reason for affirming the delegate’s decision. The applicant complains that the Tribunal did not issue an invitation under s.424A of the Migration Act and did not “comply with the requirements” in s.424AA.
The applicant does not identify the information that allegedly enlivened the Tribunal’s obligations under s.424A, and none is apparent. The Tribunal relied on identified inconsistencies in the applicant’s evidence in support of its adverse credibility findings but “information” for the purposes of s.424A does not include the existence of doubts, inconsistencies or the absence of evidence.[66] Further, it “does not encompass the Tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.[67] Additionally, country information falls within the exception outlined in s.424A(3)(a) and is not required to be disclosed under s.424A(1) of the Migration Act.[68]
[66] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]
[67] SZBYR at [18]; cf MZXOT v Minister for Immigration [2011] HCA Trans 74
[68] Minister for Immigration v NAMW (2004) 140 FCR 572 at [66]-[71] and [138]; WAJW v Minister for Immigration [2004] FCAFC 330 at [44]-[46], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7]-[30] and VJAF v Minister for Immigration [2005] FCAFC 178 at [11]-[16]
Ground 2
Ground 2 contends the Tribunal “misconstrued” the term “significant harm” under s.36(2A) by erroneously and “narrowly” construing the risk to the applicant’s life and his fear of significant harm on his return to India for being a member of the AAP.
The applicant does not explain how the Tribunal misconstrued his claimed fear of harm or misapplied the definition of “significant harm” in s.36(2A), and nothing in the decision record suggests that the Tribunal misconstrued the term “significant harm” or applied a wrong test. The Tribunal gave cogent reasons for rejecting all of the applicant’s claims[69] and, having also considered them on a cumulative basis, was not satisfied that he faced a real chance of significant harm for any reason.[70] It was open to the Tribunal to rely on its previous findings under the refugee criterion to find that the applicant did not face a real risk of significant harm.[71] Having essentially rejected his factual claims to fear harm, there was nothing left for the Tribunal to assess against the complementary protection criteria.
[69] At CB 232, [54]-[58]
[70] CB 233, [60]
[71] CQG15 v Minister for Immigration [2016] FCAFC 146; DAO16 v Minister for Immigration [2018] FCAFC 2
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant indicated a need to pay by instalments but did not oppose the making of a costs order.
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 the Federal Circuit Court Rules and scale.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 23 December 2019
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