CKP17 v Minister for Immigration
[2017] FCCA 2564
•23 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKP17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2564 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 476 Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| Cases Cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 |
| Applicant: | CKP17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1747 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 23 October 2017 |
| Date of Last Submission: | 23 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2017 |
REPRESENTATION
| Applicant appeared in person with an Indonesian interpreter |
| Solicitors for the Respondents: | Mr Julian Pinder MinterEllison |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1747 of 2017
| CKP17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This is an application filed on 5 June 2017 made under s.476 of the Migration Act 1958 (Cth) (“the Act”) in which the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 10 May 2017 affirming a decision not to grant the applicant a protection visa.
On 11 April 2014, the applicant arrived in Australia from Indonesia on a visitor visa.
On 23 May 2014, the applicant applied for a protection visa, claiming to fear harm in Indonesia because of his actual or imputed political opinion. The applicant claimed to fear danger from members and supporters of the Aceh Party (“PA”) in Indonesia due to his political views towards the current government of Aceh and his involvement in political activities with the Aceh National Party (“PNA”).
On 2 March 2015, the applicant attended an interview with a delegate of the first respondent (“the Delegate”).
On 7 August 2015, the Delegate refused to grant the applicant a protection visa. The Delegate accepted that the applicant was an active member of the Aceh National Party and had been harmed by members of the Aceh Party in the past. The Delegate also accepted that the applicant faced a real chance of harm on account of his political opinion in Aceh in the future. However, the Delegate found that the applicant reasonably could relocate within Indonesia, including to Jakarta, and accordingly refused the applicant a protection visa on the basis that he was not a person to whom Australia had protection obligations.
On 12 August 2015, the applicant lodged an application with the Tribunal for review of the Delegate’s decision.
On 20 March 2017, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone. The letter went on to invite the applicant to attend a hearing on 20 April 2017 to give evidence and present arguments relating to the issues arising in his case. The applicant attended that hearing.
Ultimately the Tribunal affirmed the decision under review.
On 5 June 2017 the applicant lodged an application for judicial review of the Tribunal’s decision relying on the following ground:
““1. The AAT made a jurisdictional error in failing to consider the s36(2B) provisions in the complementary protection assessment in relation to the political violence claims due to his work or being a member of the PNA.”
The applicant was unrepresented before the Court this morning, although had the assistance of an Indonesian interpreter.
The applicant confirmed that he had attended a directions hearing on 7 September 2017. On that occasion, the applicant had been given leave to file an amended application, any further evidence and submissions in support of his application. The applicant was also provided on that occasion with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicant’s application did not raise an arguable case for the relief sought.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 of the Rules provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The applicant confirmed that he had not filed any further documents, either in accordance with those directions or otherwise, and that he continued to rely on the ground of his application.
I explained to the applicant that the role of this Court is very different to that of the Tribunal and that it is not for this Court to reconsider his claims and make different factual findings or reach different conclusions. I explained that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake that goes to the jurisdiction of the Tribunal. I also explained that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
The ground of the application was then interpreted for the applicant and the applicant was invited to say whatever he wished in support.
In order to assist the applicant, I had s.36(2B) of the Act interpreted for him and asked him if it would be of assistance if the solicitor for the first respondent made submissions first as to why it was that the first respondent opposed the relief sought by the applicant. The applicant had nothing to say in support of the ground and agreed that may be a preferable course.
Following the submissions of the solicitor for the first respondent, the applicant was again invited to say anything further he wished in response to any of the submissions that had been made by the solicitor for the first respondent, Mr Pinder, or whether there was anything further he wished to say in support of his application generally. The applicant had nothing to say in support of either the ground or in support of his application generally.
The first respondent’s written submissions accurately summarised the Tribunal’s decision as follows:
“C TRIBUNAL DECISION
9. The Tribunal accepted several aspects of the applicant's claimed background (CB 249–250: [72]–[75]) and his claimed political involvement in Aceh, but did not accept the critical aspects of his protection claims because it found that he had exaggerated his political involvement and profile. In particular:
(a) the Tribunal was not satisfied that he did any more than generally or generically express distaste regarding corruption and found that he would not face a real chance of persecution in Indonesia in the reasonably foreseeable future for doing so (CB 250: [75]);
(b) the Tribunal did not accept that his support for the PNA would be seen as an expression of a political view favouring full sovereignty for Aceh (CB 250: [76]) and did not accept that he gained any fame or notoriety in Aceh for views regarding Acehnese independence (CB 250: [76]);
(c) the Tribunal was not satisfied that a claimed assault in July 2009 was indicative of a real chance of the applicant being persecuted in Indonesia in the reasonably foreseeable future (CB 250: [76]);
(d) the Tribunal found he had applicant greatly exaggerated his claims about his views on the Helsinki process and was not satisfied that he faced a real chance of persecution in Indonesia in the reasonably foreseeable future for reasons of those views or his views about Acehnese autonomy (CB 250: [77]);
(e) the Tribunal was not satisfied that he faced a real chance of persecution in Indonesia for reasons of his association with certain political figures in Indonesia (CB 250: [78]);
(f) the Tribunal was not satisfied that he was or would have been viewed by PA supporters or anyone else as some kind of significant or potentially significant figure (CB 251: [81]);
(g) the Tribunal was not satisfied that being a supporter, member or field worker for the PNA even during election time gives rise to a real chance of persecution in northern Aceh, Aceh generally, or the rest of Indonesia (CB 252: [84]); and
(h) given its finding that the applicant had exaggerated his claimed political involvement, the Tribunal did not accept any of the incidents of harm that he claimed to have flowed from that involvement (CB 252: [85]–[86]).
10. In making these findings, the Tribunal gave very little weight to the documentary evidence provided in support of the applicant's protection visa application (CB 250–251: [79]–[80]).
11. Accordingly, the Tribunal was not satisfied that the applicant faced a real chance of persecution in Aceh for supporting, working for or being a member of the PNA (CB 253: [89]) and was not satisfied that there was ever any genuine risk of his being pursued or hunted or targeted for harm in Jakarta or any other part of greater Indonesia by the PA or any other party or group (CB 253: [90]). Despite having rejected the applicant's claim to fear harm for reason of his political opinion, the Tribunal also found that the applicant could safely and practicably relocate to Jakarta or Banda Aceh if he found it uncomfortable to continue to reside in Aceh (CB 252: [87]; CB 253: [90]).
12. For these reasons, and having considered the applicant's evidence individually and cumulatively, the Tribunal was not satisfied the applicant met the requirements of section 36(2)(a) (CB 253: [92]). For the same reasons the Tribunal found that the applicant did not satisfy the complementary protection criterion (CB 253: [94]–[97]).”
In relation to the ground of the applicant’s application and the assertion that the Tribunal failed to consider s.36(2B) of the Act, the reasons of the Tribunal made clear that there was no obligation on the Tribunal to do so.
In order for s.36(2B) of the Act to have any operation, a finding that the applicant otherwise meets the complementary criterion needs to have been made. However, the Tribunal found that the applicant’s complementary protection claims relied on the same facts as his refugee claims. The Tribunal found that the applicant’s refugee claims lacked credibility. The Tribunal was not satisfied on the evidence before it that the applicant faces a real chance of persecution in Aceh for supporting, working for or being a member of the PNA.
The Tribunal found that there was not a genuine risk of the applicant being pursued or hunted or targeted in Jakarta or any other part of Greater Indonesia by the PA or any other party or group. The Tribunal was not satisfied that relocation was not available to the applicant where, on the applicant’s own evidence, the PNA has a practical and active presence. The Tribunal did not accept all claims made by the applicant. The Tribunal found some of the claims to have been greatly exaggerated and found his claims about facing Indonesian persecution due to his association with other individuals, alive or dead, to be “very weak”.
The Tribunal did not accept that the applicant’s support for the PNA would be seen as an expression of a view or policy on his part favouring full sovereignty for Aceh. The Tribunal was not satisfied that the applicant faces a real chance of persecution in Indonesia in the reasonably foreseeable future for reasons of his personal views about Helsinki MOU or about Acehnese autonomy.
The Tribunal’s findings would appear to have been open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
The Tribunal concluded that the applicant was not at a real risk of significant harm. That conclusion was based on the findings of fact made by the Tribunal in considering whether the applicant met the refugee criteria in s.36(2)(a) of the Act. The Tribunal found that the applicant made no other claims. The Tribunal is entitled to rely on its findings that there was no real chance of the relevant harm alleged for Convention reasons in assessing whether there was a real chance of significant harm for complementary protection when the same essential claims and facts are relied upon (see MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] per Marshall J).
It is well established that, as a matter of principle, it is acceptable for a Tribunal to have regard to its prior findings in considering whether an applicant meets the complementary protection criterion (see Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 at [245] – [246] per Lander and Gordon JJ; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ; and, SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36] per Farrell J).
The Tribunal concluded that it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk that the applicant would suffer significant harm and therefore was not satisfied that the applicant is a person to whom Australia had protection obligations under s.36(2)(aa) of the Act.
In the circumstances, it is apparent from the Tribunal’s reason that s.36(2B) of the Act was not triggered by any of the findings made by the Tribunal and the question of whether Australia was relieved of its protection obligations under s.36(2B) of the Act never arose.
Accordingly, the ground of the applicant’s application is not made out.
Otherwise, no jurisdictional error is evident from the conduct of the Tribunal’s review or its decision record. The Tribunal invited the applicant to attend the hearing in accordance with the legislative scheme. A fair reading of the Tribunal’s decision record discloses that the Tribunal accurately summarised the applicant’s claims and evidence to the Department of Immigration and Border Protection (“the Department”), as well as the applicant’s submissions to the Department, and the evidence upon which it relied.
The Tribunal explored the applicant’s claims with him in detail at a hearing and put matters of concern that it had about the applicant to the applicant and noted the applicant’s responses. I am satisfied that the exchanges summarised by the Tribunal with the applicant at the hearing make clear that the applicant was sufficiently on notice that the credibility of his claims and evidence was in issue for the purposes of s.425 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [35] and [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
The Tribunal identified with specificity the country information to which it had regard. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The Tribunal ultimately found the applicant’s evidence to be vague, exaggerated, inconsistent and, in some respects, untruthful.
As stated above, the Tribunal’s adverse findings would appear to be open to it on the evidence and material before it and for the reasons it gave. It is well established that a Tribunal is not bound to accept uncritically all or any claims put to it (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor was the Tribunal bound to accept explanations given by the applicant with regard to particular concerns put to the applicant by the Tribunal.
The Tribunal applied the correct law to the findings that it made.
Whilst I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the Tribunal’s decision record. As stated above, the Tribunal referred to the relevant law in affirming the decision under review.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.
Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) and on the basis that the application does not raise an arguable case, the proceeding before this Court commenced by way of application filed on 5 June 2017 should be dismissed, pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 26 October 2017
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