Cij16 v Minister for Home Affairs
[2019] FCA 65
•4 February 2019
FEDERAL COURT OF AUSTRALIA
CIJ16 v Minister for Home Affairs [2019] FCA 65
Appeal from: CIJ16 & Ors v Minister for Immigration & Anor [2018] FCCA 2980 File number: NSD 2051 of 2018 Judge: JAGOT J Date of judgment: 4 February 2019 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal –jurisdictional error – credibility - whether Tribunal misapprehended evidence – appeal dismissed Cases cited: CIJ16 and others v Minister for Immigration and another [2018] FCCA 2980 Date of hearing: 4 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Counsel for the Appellants: A N Silva Counsel for the First Respondent: A Douglas-Baker Solicitor for the First Respondent: Sparke Helmore ORDERS
NSD 2051 of 2018 BETWEEN: CIJ16
First Appellant
CIQ16
Second Appellant
CIS16
Fourth Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
4 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The first and second appellants pay the first respondent’s costs of the appeal as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
This is an appeal against an order of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal, CIJ16 and others v Minister for Immigration and another [2018] FCCA 2980. Before the Federal Circuit Court a number of grounds of review were put on behalf of the appellants. In this Court, however, the appeal is limited to a single ground, ground 1, as outlined in the notice of appeal. Further, the first appellant alone made arguments in support of this sole ground of appeal and thus is referred to as the appellant below for convenience (the other appellants’ claims being dependent on those of the first appellant as members of a family unit). Ground 1 of the appeal is in these terms:
The learned primary judge erred by not finding that the tribunal made jurisdictional error since it misapprehended the main applicant's evidence about his interaction with the police in 2012 and used that misapprehended evidence to make an adverse credibility finding.
This ground concerns what is set out in [64] of the Tribunal’s reasons, which in turn depends upon what is set out in [27] and [29]. In [64] the Tribunal said:
The applicant gave conflicting accounts of his interactions with the police following the alleged assault in 2012. He told the delegate that an Indian officer told him he would not be assisted because of his ethnicity, but told me at the hearing that the police had told him they would investigate, but he had left the country and did not know whether they had taken any action in response to his complaint …
In [27] of the Tribunal's reasons the Tribunal referred to submissions which the appellant had made to the primary decision-maker, the Minister’s delegate. This is a reference to a statutory declaration which the appellant provided on 16 September 2014, which said that after an alleged assault he reported to a police station, where he saw the officer in charge. That officer in charge asked another person to take the complaint and told the appellant that he would call him, but “they did not do anything”, and that when he went to inquire about it an Indian policeman at the front counter said, in effect, that because he was of Indian ethnicity nothing would be done, “don’t waste your time.” In [27] of the Tribunal’s reasons the Tribunal put it this way:
He went to the police to report the incident. He saw ### at the police station. The Fijian office [sic] he first spoke to directed him to an Indian officer who told him in a whisper that the police would not help him because he was Indian.
One issue that Mr Silva raised, who has put what arguments can be put on behalf of the appellant, is that [27] itself shows a misapprehension in that, in fact, it appears from the statutory declaration that the appellant went to the police station on one day and then returned the following day to the front counter, where he spoke to an Indian policeman. Whether that is so or not, I see it as of no significance. The real issue here is that in his statutory declaration to the primary decision-maker the appellant clearly indicated that in the course of his dealings with the police, whether it be on the first day or the second day, he was told by an Indian police officer that the police would not investigate his complaint.
This is what the Tribunal is referring to in [27]. However, the Tribunal continued at [28] commencing with the words “at the hearing”. That is to say, what follows in and from [28], including, importantly, in [29], is what the appellant said to the Tribunal member during the hearing. Paragraph [29] is in these terms:
The applicant said that he had gone to the police to report the attack and they had told him to go to the hospital to have his injuries treated and they would investigate further. He left Fiji two days later. He said that he did not know whether the police had done anything further in relation to his complaint.
Extracts from the transcript of the hearing before the Tribunal also appear in the appeal book. The transcript shows that when the Tribunal member asked the appellant in an open-ended way, “Did you go to the police?” and, “What did they say?” the entirety of the appellant's answer was:
They reported that report, and they told me, "Go to the hospital, get yourself treated, and we'll investigate it further."
That is, there was no reference at that time or at any time later to an Indian police officer having told him that the police would not investigate. The Tribunal returned to that question, saying:
Let me just check something here. The police said they would investigate further but you left after two days. Do you know anything about what happened?
And the appellant answered:
No, I don't know anything about that.
In other words, the appellant had ample opportunity in the questions and answers before the Tribunal to refer to any interaction with an Indian police officer but did not do so. This is the nub of the inconsistency to which the Tribunal must be referring in [64] when it describes the “conflicting accounts”. That is, the account told to the delegate which mentions the Indian police officer and the account told to the Tribunal in which there is no such mention. It is not to the point that the Tribunal does not specifically identify the conflict as arising by reason of the presence of an apparently important alleged fact in one version of events and its omission from the other version of events. There is still inconsistency.
In short, as the primary judge said at [50], when regard is had to the material that was before the Tribunal, including the statutory declaration to the delegate and the transcript of evidence before the Tribunal, there is no apparent misapprehension on the Tribunal's part about the appellant's various accounts of his dealings with the Fijian police in 2012. As the primary judge also said at [34], the case for the appellant seems to be based on an attempt to “dissect, and selectively construe, some parts of the … evidence to the Tribunal”.
In these circumstances the alleged error in the ground of appeal cannot be accepted, with the consequence that the appeal must be dismissed as against all of the appellants.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 4 February 2019
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