Cis15 v Minister for Immigration
[2016] FCCA 1504
•20 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CIS15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1504 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – 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, 48A |
| AMA15 v Minister for Immigration [2015] FCA 1424 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Kaur v Minister for Immigration [2015] FCA 168 MIEA v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 |
| First Applicant: | CIS15 |
| Second Applicant: | CIT15 |
| Third Applicant: | CIU15 |
| Fourth Applicant: | CIV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3028 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2016 |
REPRESENTATION
| The Applicants appeared in person |
| Solicitors for the Respondents: | Ms N Blake of Clayton Utz |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3028 of 2015
| CIS15 |
First Applicant
| CIT15 |
Second Applicant
| CIU15 |
Third Applicant
| CIV15 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 12 October 2015. The Tribunal affirmed decisions of a delegate of the Minister not to grant the applicants protection visas.
There are four applicants, who are a husband and father, his wife and their two children. The principal claims were made by the first applicant, the applicant father. Any references to “the applicant” in these proceedings is intended to be a reference to him. Claims were also made by the second applicant. The two children made claims at different times through their parents.
The procedural history of this matter is complicated by the fact that the protection claims were made by the individuals at different times and purportedly considered on different bases. The procedural background is otherwise dealt with in the Minister’s submissions.
Background
The applicants are citizens of the Republic of Indonesia (Indonesia). The applicant is the husband of the second applicant and they are the parents of the third applicant (a son) and the fourth applicant (a daughter). The third and fourth applicants were born in Australia. The history of the family's protection visa applications is as follows:
a)the applicant applied for a protection visa on 7 August 2008. On 25 September 2008 a delegate refused his application. The Tribunal affirmed the decision on 20 January 2009;
b)the second applicant applied for a protection visa on 20 February 2008. That application was refused by a delegate on 12 March 2008. There is no record of any application to the Tribunal for review of the delegate's decision;
c)the third applicant was born in Australia on 11 May 2010 and applied for a protection visa on 18 July 2011. On 14 September 2011 a delegate refused the third applicant’s application. The Tribunal affirmed the decision on 23 March 2012;
d)the fourth applicant was born in Australia on 26 September 2012 and has not previously applied for a protection visa. She was, however, listed as a member of the family unit (Part B) and Part D of the relevant protection visa forms was filed on her behalf in the present application.[1]
[1] Court Book (CB) 326-327, Decision Record (DR) at [20]-[31].
Relying on the complementary protection amendments to the Migration Act 1958 (Cth) (Migration Act), the first, second and third applicants made their current protection visa applications together with the fourth applicant on 24 October 2012.[2] On 11 August 2014, the delegate refused the applications.[3] On 12 October 2015, the Tribunal affirmed the delegate's decision.[4]
[2] CB 123-176.
[3] CB 227-248.
[4] CB 323-352.
Protection claims
The applicants' claims were made in their protection visa applications,[5] submissions to the delegate[6] and through written[7] and oral[8] submissions to the Tribunal. In summary:
a)the applicant fears harm from his friends, family and Islamic extremists in Indonesia because he is a Christian convert. He was born a Muslim and has considered himself a convert since mid-2008. He claims that these groups will not accept him as he is today;
b)the second applicant fears that she will be killed by her husband's “fanatic Muslim” family as she is a Christian. Her husband's family and Islamic extremists will be violent towards her as they will consider that she influenced his conversion to Christianity; and
c)the third and fourth applicants will not be safe as they are expected to be Muslim by birth. The applicant’s family will target them all for raising their children as Christians.
[5] CB 132.
[6] CB 206-208, 235-241.
[7] CB 290-310, 316-319.
[8] CB 330-334.
Tribunal decision
The Tribunal found that the applicants lacked credibility because much of their evidence was "inconsistent, lacking in coherence and plausibility."[9] In particular, the Tribunal found that:
a)the applicant provided contradictory evidence which undermined his claim to have converted to Christianity. Specifically, his claims to have been Christian since mid-2008 were inconsistent with his recent evidence that he was still getting to know Christianity, was not ready to be baptised, and could not yet say that he was part of the Christian religion.[10] The applicant lacked knowledge of Christianity, was unable to describe his claimed Christian faith and lacked any demonstrated engagement with Church services that he claimed to have attended over several years.[11] Evidence of the applicant being "active" in Church focused upon his role as a photographer with little comment about his religious faith.[12] The Tribunal further determined that the applicant's aversion to Islam in his post-hearing statutory declaration was "disingenuous and a fabrication" to assist his claim.[13] The Tribunal concluded that the applicant would not have converted to a religion he knew little about and considered very similar to his existing religion;[14]
b)the applicant's evidence with respect to his family and other Muslim Indonesians being aware of his conversion, attendance at Church and participation in the Christian community in Australia was "very confused" with "irreconcilable statements."[15] The public nature of his activities, the known fact that his wife was Christian and the lack of reaction or response by the Muslim community indicated a lack of concern or suspicion that the applicant had converted to Christianity.[16] The Tribunal did not accept that Muslim Indonesians, including the applicant's family and friends, considered him to have converted or left Islam;[17]
c)the applicants provided inconsistent evidence of threats of harm from the applicant's family. The evidence "developed dramatically over the course of years",[18] from a lack of fear of physical harm from the applicant's family, to a stated uncertainty, to the second applicant’s claims of receiving death threats and an expressed belief that the applicant's family would physically harm them.[19] Death threats to the second applicant were not disclosed in any previous application.[20] Based on the evidence before it, the Tribunal did not accept that the applicant's family had threatened to kill the second applicant or harm the applicants.[21]
[9] DR at [49].
[10] DR at [53].
[11] DR at [54]-[66].
[12] DR at [57], [59], [64].
[13] DR at [55], [62].
[14] DR at [63].
[15] DR at [67]-[69].
[16] DR at [70].
[17] DR at [71]-[72].
[18] DR at [73].
[19] DR at [73]-[75].
[20] DR at [73]-[74].
[21] DR at [82]-[83].
The Tribunal found that there was no risk of harm to the applicants if they returned to Indonesia. Specifically, the Tribunal determined that:
a)there was no accepted evidence or indication that a disapproval of the applicant and second applicant’s inter-religious marriage will result in serious or significant harm to any of the applicants.[22] Country information indicated that inter-religious marriages do occur in Indonesia and there was no information to suggest that such couples or their children were subjected to physical harm, serious discrimination or serious abuses;[23]
b)there was no accepted evidence that inter-faith interaction and socialising would result in threats of harm or problems to the applicants in Indonesia.[24] Further, the applicant's activities with the Church and Christians over several years in Australia had not caused any adverse reaction, comment or questioning among his Muslim friends and family apart from an isolated comment.[25] The Tribunal also considered claims that the second applicant will be accused of converting or influencing the applicant's conversion to Christianity. Given that the Tribunal did not accept that the applicant had converted to Christianity, was suspected of converting, or was indeed interested in converting to Christianity, it followed that there was no real risk to the second applicant;[26]
c)the third and fourth applicants’ attendance at Sunday School may cause disapproval from Muslims in Indonesia.[27] However the country information did not indicate that this would create a real chance of serious harm or real risk of significant harm to any of the applicants;[28]
d)there was a lack of evidence from both the applicants and available country information to suggest that the applicants would be at risk of serious or significant harm in their home region due to their Christianity.[29] The second applicant did not provide evidence that she would face harm for being a Christian in her home region in Indonesia, while she and her husband gave evidence of the non-controversial interaction of Christians and Muslims in their home area;[30]
e)on a cumulative basis, the applicants may face some disapproval from their community, friends and family in Indonesia due to their inter-religious marriage and involvement with the Christian community in Australia. However this did not amount to a real chance of serious harm or a real risk of significant harm in Indonesia;[31]
f)finally, the Tribunal found that it was reasonably practicable for the applicants to relocate to a Christian majority area in Indonesia to avoid any problems from Muslims.[32] The applicant and the second applicant were well-educated, had valuable work skills and experience and demonstrated the ability to form connections and establish themselves in a new area. The applicants did not raise any objections or obstacles to relocation except for a perceived fear of harm arising from the applicant's conversion to Christianity, which the Tribunal had not accepted.[33]
[22] DR at [95].
[23] DR at [96].
[24] DR at [105].
[25] DR at [107].
[26] DR at [110].
[27] DR at [112]-[113].
[28] DR at [114].
[29] DR at [119]-[120].
[30] DR at [117].
[31] DR at [122]-[124].
[32] DR at [128].
[33] DR at [127].
Accordingly, the Tribunal was not satisfied that the applicant and the second applicant were persons to whom protection obligations were owed under s.36(2)(aa) of the Migration Act. Consequently, the third applicant did not satisfy the criteria in ss.36(2)(b) or (c) of the Migration Act. The Tribunal did not consider that the fourth applicant satisfied either the refugee criterion or the complementary protection criterion in ss.36(2)(a) or (2)(aa) of the Migration Act. It followed that she did not satisfy ss. 36(2)(b) or (c) of the Migration Act.
Current proceedings
These proceedings began with a show cause application filed on 6 November 2015. The applicants continue to rely upon that application.
The application is supported by two affidavits which I received as evidence. The first was filed with it and attached the Tribunal decision. The second was filed on 18 February 2016 and attached a transcript of the Tribunal hearing. I accepted that affidavit subject to relevance. As matters transpired during the course of argument, nothing was raised drawing upon the transcript.
I also have before me as evidence the court book filed on 21 December 2015.
The show cause application contains five grounds:
1.The Tribunal failed to consider the harm because of the fact that I converted to Christianity in August 2008 and the harm I will face with my wife and two children if I am compelled to return to Indonesia.
2.As to relocation the Tribunal failed to ask the correct question whether relocation is reasonable and whether in practical reality I will be able to relocate to an area-where there is a job, freedom, ability to earn basic living and possibility of avoiding harm once my location is known.
3.I believe the Tribunal failed to determine whether relocation was reasonable after a long absence from the country and the future of two dependent children who need education and basic support.
4.I will provide copy of the transcript of the hearing of the Tribunal to demonstrate how we responded to the Tribunal's questions and how the Tribunal failed to understand that our circumstances are unique and compelling.
5.The Tribunal accepted that there is a possibility amounting to a real risk yet failed to recognise our application as refugee.
The grounds are discussed in the Minister’s written submissions. I also discussed them with the applicant and second applicant during the course of oral argument today.
In my opinion, none of the grounds raised point to any arguable case of jurisdictional error. I agree with the Minister’s submissions.
Ground 1
Ground 1 is without basis. The Tribunal's decision shows that it comprehensively assessed the harm that the applicants said they would face if they returned to Indonesia because of a claimed conversion to Christianity.[34] Ground 1 discloses no arguable basis of jurisdictional error and ought to be understood as a merits claim.
[34] See DR at [35], [73]-[124].
Ground 2
Contrary to Ground 2, the Tribunal considered whether the applicants' relocation to another part of Indonesia was "reasonable in a practicable sense".[35] Two things are notable about the Tribunal's process in this respect. First, the Tribunal set out the law on assessing relocation, pursuant to s.36(2B) of the Migration Act.[36]
[35] See DR at [125]-[128].
[36] DR at [17].
Secondly, the Tribunal assessed the applicants' ability to find work, live in freedom in a majority Christian area and negate any potential "problems" with Muslim Indonesians, including the applicant's family. This reflects the High Court's reasoning in SZATV v Minister for Immigration (SZATV)[37] in which the test for what was “reasonable” in the sense of “practicable” was dependent upon an applicant's particular circumstances and the impact of relocation upon that person.[38] Paragraph 127 of the DR clearly shows that the Tribunal considered the applicants' circumstances in accordance with the SZATV test. Moreover, the Tribunal invited the applicant and the second applicant to comment on the possibility of relocation to a Christian majority area in Indonesia. The applicant acknowledged that this was possible but for his perceived fear of harm (which the Tribunal had not accepted) while the second applicant could not provide any explanation to justify her uncertainty for relocation.[39] In the circumstances, the applicants' application was assessed correctly and no jurisdictional error is made out.
[37] (2007) 233 CLR.
[38] SZATV v Minister for Immigration (2007) 233 CLR 18, 27 at [24].
[39] DR at [127]-[128].
In any event, the Tribunal had already determined that the applicants did not face a real risk of harm in Indonesia. The issue of relocation was thus decided on a separate and independent basis meaning that any error, if made out, would be within jurisdiction.[40]
[40] See SZMZD v Minister for Immigration [2009] FMCA 554 at [135]-[136]; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1, 22 at [68]; See further SZBYR v Minister for Immigration (2007) 81 ALJR 1190, 1198 at [27]-[29],1207 at [88] applied in Kaur v Minister for Immigration [2015] FCA 168 at [47].
Ground 3
Ground 3 raises the same issue of relocation as in ground 2 but asserts unreasonableness because of the applicants' long absence from the country and the dependents' need for education and basic support. The Tribunal, however, considered that the applicant and the second applicant were both "well-educated with valuable work skills and experience" and had demonstrated the ability to "establish themselves in another locale and form connections and support networks".[41] It follows that the Tribunal correctly assessed that the applicant and the second applicant had the ability to establish themselves after their absence and provide basic support to their dependents. Ground 3 therefore does not establish any jurisdictional error.
[41] DR at [127].
Ground 4
Ground 4 is not a ground of review but a statement of intent. It is said that the applicants will provide a transcript of the Tribunal hearing to prove that the Tribunal failed to "understand" the applicants' "unique and compelling" circumstances.
Although a transcript affidavit has been filed and read on behalf of the applicants, no further particularisation of this ground has been provided.
To the extent that a failure to "understand" can be a ground of review, any analysis of the applicants' claimed "unique and compelling" circumstances constitutes impermissible merits review.[42] Accordingly, Ground 4 does not establish any jurisdictional error.
[42] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36; MIEA v Wu Shan Liang (1996) 185 CLR 259, 272.
Ground 5
Ground 5 appears to refer to [98] of the DR where the Tribunal accepted that:
There is a possibility, amounting to a real risk, that the first named applicant's family and others in Indonesia may ostracise and shun him and the other applicants because he has married a Christian woman and that the second name applicant's family may do the same. However there is nothing before the Tribunal to indicate that this may result in serious or significant harm to any of the applicants.
The applicants have misinterpreted the Tribunal's finding. A proper reading of [98] shows that the Tribunal considered the applicants may be “ostracised" or "shunned" by certain members of the community, but that this did not amount to the requisite level of harm. Other paragraphs in the DR support the conclusion that the Tribunal found no risk of serious or significant harm to the applicants if they returned to Indonesia.
Further, in relation to Ground 3, even if the Tribunal had made some error in its relocation finding, that would not, in my opinion, go to jurisdiction. That is because the relocation finding was unnecessary. The Tribunal did not find that any of the applicants would face a real risk of serious or significant harm anywhere in Indonesia. In those circumstances, a consideration of the possibility of relocation was not called for.
The applicants’ oral arguments at today’s hearing went to the merits of the Tribunal decision and do not advance their application. The Minister’s submissions at [23] to [27] raise an additional issue.
The Tribunal found that s.48A of the Migration Act prevented the first, second and third applicants from claiming protection under the refugee criterion pursuant to s.36(2)(a) of the Migration Act.[43] The Tribunal therefore proposed to consider their claims under the complementary protection criterion pursuant to s.36(2)(aa) and (c) of the Migration Act.[44] As the fourth applicant had not previously applied for a protection visa, the Tribunal considered both the refugee and the complementary protection criteria with respect to the fourth applicant’s application.[45]
[43] DR at [29], [47], [130].
[44] DR at [130].
[45] DR at [28], [131].
The Minister notes that in SZVCH v Minister for Immigration[46] (SZVCH), I found that in circumstances where a valid visa application was made based upon the complementary protection criterion post-SZGIZ, and where the delegate considered the applicant's satisfaction of the Refugees Convention but the Tribunal declined to do so on the basis that it did not have jurisdiction to do so, the Tribunal fell into jurisdictional error. An appeal from that judgment was heard by a Full Court of the Federal Court on 4 May 2016 and is currently reserved.
[46] [2015] FCCA 2950.
The reasoning in SZVCH has been held by single instance appellate judges to be incorrect.[47] SZVCH is also inconsistent with the judgment of Perram J in AOM15 v Minister for Immigration[48]. It was also in the Minister’s submission found to be erroneous in SZQTJ v Minister for Immigration[49] per Judge Street.
[47] AMA15 v Minister for Immigration [2015] FCA 1424 at [48] per Markovic J, which was endorsed by Katzmann J in SZRAG v Minister for Immigration [2016] FCA 189 at [23].
[48] [2015] FCA 1285 at [9].
[49] [2015] FCCA 3226 at [16].
Given the current appellate authority in relation to SZVCH, the Minister submits that it is not arguable that the Tribunal made an error in confining itself to only considering the applicants' satisfaction of s.36(2)(aa) of the Migration Act in the circumstances of this case.
Further, the Minister submits that, in any event, and notwithstanding the Tribunal's suggestion that it could only assess certain applicants against the complementary protection criterion, it ultimately made findings that were clearly dipositive of both criteria. In respect of each of the claims that were made, the Tribunal concluded that none of the applicants faced a real risk of significant or serious harm. Further, the Tribunal assessed cumulatively the applicants' potential to relocate pursuant to s. 36(2B) of the Migration Act.[50]
[50] DR at [125]-[128].
In my opinion, in the circumstances of this case, no argument of jurisdictional error arises. The Tribunal found that in relation to the first, second and third applicants, it could only consider their claims by reference to the complementary protection criteria. Because the fourth applicant had not previously claimed protection, the Tribunal was bound to consider those claims under both the refugees and complementary protection criteria. The Minister’s delegate had dealt with all of the claims on both bases. The Tribunal’s approach is consistent with current Federal Court authority, and accordingly, an argument of jurisdictional error based on that approach could not succeed in this court.
Bearing in mind, however, that the issue was currently reserved before the Full Federal Court, in some cases, it might have been appropriate to defer an outcome or hear the case on a final basis. I have not taken that course here for the following reasons. As a matter of practical reality, the Tribunal had no option but to consider the applicants’ claims both by reference to the refugee criterion and the complementary protection criterion.
That is because the fourth applicant’s claims needed to be considered on both bases and those claims were made on the basis of the claims of the child’s parents. It would have been wholly artificial to attempt to confine the Tribunal’s consideration to the complementary protection criterion in relation to the claims of the first three applicants. Although the Tribunal approached the cases on the theoretical basis that it was thus confined in its jurisdiction, that is not what the Tribunal, in fact, did. It is plain from the Tribunal’s reasons at [95], [98], [109], [112], [120], [122], [123], [124] and [125] that the Tribunal, in fact, considered the claims of all four applicants against both the refugee criterion and the complementary protection criterion.
Further, if the Tribunal was in error in dealing with the case in that way, the error did not affect its decision. That is because the outcome would have been the same whether it was restricted to the refugee criterion or the complementary protection criterion. The Tribunal’s factual findings were that the applicant’s claims of religious conversion were untrue. Secondly, the fears of the second applicant, based on the alleged conversion, had no basis and were otherwise unfounded. The claims of the children fell with those of their parents. The outcome would have been the same regardless of whether the case was considered by reference to the complementary protection criterion alone or both that and the refugee criterion.
I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale as it applied when the application was filed. The applicant claimed financial hardship, but that is not a reason for the Court to refrain from making a costs order. I will order that the first and second applicants pay the first respondents’ costs and disbursements of and incidental to the application, fixed in the sum of $3,416.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 22 June 2016
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