CKP17 v Minister for Immigration - [2017] FCCA 2564

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKP17 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2564

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 2564
Decision Date: 23 October 2017

CaseChat Overview and Summary

The applicant, CKP17, sought judicial review of a decision by the Administrative Appeals Tribunal. The dispute concerned the Tribunal's refusal to grant the applicant a protection visa. The Minister for Immigration was the first respondent. The matter came before Emmett J of the Federal Circuit Court.

The primary legal issue before the court was whether the Tribunal erred in finding that the applicant had not established a real chance of persecution in Indonesia, and therefore did not meet the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), nor the complementary protection criteria. This involved assessing whether the Tribunal's findings of fact, particularly regarding the applicant's political involvement and the credibility of his claims of harm, were reasonably open to it on the evidence before it.

Emmett J's reasoning focused on the Tribunal's detailed findings of fact. The Tribunal had accepted some aspects of the applicant's claimed background and political involvement in Aceh but ultimately found that the applicant had exaggerated his political profile and the risks he faced. Specifically, the Tribunal was not satisfied that the applicant's general expressions of distaste regarding corruption, his support for the PNA, his alleged fame or notoriety for views on Acehnese independence, a claimed assault, his views on the Helsinki process or Acehnese autonomy, or his association with certain political figures, would lead to a real chance of persecution. The Tribunal also gave little weight to the documentary evidence supporting the application and concluded that the applicant had not established a genuine risk of being pursued or hunted. Consequently, the Tribunal found that the applicant had not satisfied the requirements for a protection visa or complementary protection. The court noted that the Tribunal had also found that the applicant could safely relocate within Indonesia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The first respondent’s written submissions accurately summarised the Tribunal’s decision as follows: “C TRIBUNAL DECISION9. 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]).”

Ratio Decidendi

Legal Principle Established

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