CKY17 v Minister for Immigration

[2017] FCCA 3183

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKY17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3183

Catchwords:

MIGRATION – Administrative Appeals Tribunal – the Tribunal’s finding in respect of not accepting the applicant’s claims of being harmed by her husband was an adverse credibility finding that was open to the Tribunal – it was relevant for the Tribunal to explore the applicant’s credit in relation to the applicant’s claims – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 438, 476

Applicant: CKY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1752 of 2017

Judgment of: Judge Street

Hearing date: 15 December 2017

Date of Last Submission: 15 December 2017

Delivered at: Sydney

Delivered on: 15 December 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr K Eskerie
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1752 of 2017

CKY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 May 2017 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Indonesia and her claims were assessed against that country. The applicant arrived in Australia on 23 August 2014 as the holder of a subclass FA 600 Visitor visa.  The FA 600 Visitor visa was granted on 25 July 2014 and was in effect until 23 November 2014. It was not until 20 November 2014 that the applicant lodged an application for protection. 

3. The applicant claimed to fear harm by reason of the alleged abuse by her husband. On 10 July 2015, the delegate found the applicant failed to meet the criteria for the grant of a visa under the Act. 

The Tribunal’s decision

1. The applicant applied for review on 17 August 2015. The applicant was invited by letter dated 8 March 2017 to attend a hearing on 20 April 2017.  The applicant appeared on that date to give evidence and present arguments. 

2. The Tribunal in its reasons identified the background to the application for review and summarised the applicant’s claims. The Tribunal noted that the applicant stated the last time she saw her husband was in July 2014 after he had signed the letter permitting her to come to Australia.  The applicant alleged that her husband came looking for her and asking for money. The applicant was asked by the Tribunal where she lived before she came to Australia, and the applicant stated that she left her husband and went back to live with her parents after she separated from her husband in November 2009. The applicant alleged that after that, she moved into boarding houses and never went back to live with her parents. The applicant said she never divorced her husband.

3. The Tribunal raised with the applicant that her passport had been issued in March 2014 and asked why she was using an old address in March 2014. The applicant asserted that was because she used the Indonesian family card and stated that she still used that address unless she has a house, and then she could make her own family card. 

4. The Tribunal wrote to the applicant pursuant to s 424A of the Act on 20 April 2017 raising with the applicant for comment or response, information provided in respect of the applicant’s address. The letter explained the relevance of the information because it identified information about the membership of the household and that the Tribunal may find that the applicant’s parents were not included as part of the household and that it was not their house. The letter explained that the Tribunal may find the inclusion of the applicant’s husband and child and the exclusion of the parents was inconsistent with the applicant’s statements at the hearing that that was her parent’s address, whereby the Tribunal may find that she is not telling the truth as to where and with whom she was living, which may give rise to affirming the decision under review. 

5. The Tribunal set out the applicant’s response to the s 424A letter. The Tribunal identified the relevant law.

6. The Tribunal found the applicant’s evidence unconvincing and provided detailed reasons in support of the adverse findings. The Tribunal identified in that regard, the significance of the applicant’s application and the identification of the address that she had provided and that this was also the same address that was identified by the applicant as the address where she lived for six months or more in the last 10 years in her protection visa application lodged on 20 November 2014. The Tribunal noted at the hearing however, that the applicant stated that the address was her parent’s address and that she did not live there after living with her parents for almost a year after she separated from her husband in November 2009. The Tribunal found that the information was inconsistent with the applicant’s statements at the hearing about her parents’ address. 

7. The Tribunal did not accept the applicant had been telling the truth about where and who she was living with. The Tribunal did not accept that the applicant is separated from her husband, or that he assaulted her, or that she has complained to the police and he was arrested as a result. The Tribunal was not satisfied the applicant fled to Australia as a result. 

8. The Tribunal did not accept that the applicant had suffered any previous harm in Indonesia and that there is not a real chance that she would suffer serious harm from her husband or anyone else in the reasonably foreseeable future. The Tribunal did not accept that the applicant had a well-founded fear of being persecuted for one or more of the Convention reasons if she returns to Indonesia now or in the reasonably foreseeable future.

9. The Tribunal was not satisfied the applicant met the criteria for the protection obligations under s 36(2)(a) of the Act. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 5 June 2017, and on 14 July 2017, a Judge of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions.  No such documents have been filed.

The nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. 

2. The Court explained that if it was satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply.  The applicant confirmed that she understood the nature of the hearing as explained by the Court.

Applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that what she had told the Tribunal was true and that she had taken an oath and that her evidence was honest. This Court does not have power to make fresh findings in relation to the applicant’s claims. In substance, the applicant’s oral submissions invited this Court to engage in impermissible merits review. The adverse credibility findings by the Tribunal were open on the material before the Tribunal, for the reasons given by the Tribunal which were logical and rational. The adverse credibility findings cannot be said to lack an evident and intelligible justification. Nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds in the application

1. The grounds in the application are as follows:

   1. In making the decision the Second Respondent was or appeared to be biased.

   2. The decision of the Second Respondent is affected by jurisdictional error by asking itself wrong question and applying wrong test.

   3. The applicant claims she will be harmed by her husband if she returns to her original country. The Second Respondent made no reasonable finding as to whether or not this occurred, no findings about whether or not, if it did happen, it gave rise real chance of persecution.

Ground 1

1. In relation to ground 1, an allegation of bias must be clearly alleged and properly particularised. There is no basis on the material before the Court to support the allegation of bias. The adverse credibility findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

2. It was relevant for the Tribunal to explore the applicant’s credit in relation to the applicant’s claims. It was also proper for the Tribunal to comply with the requirements of s 424A of the Act. Neither the asking of questions in respect of the applicant’s credit nor the sending of the letter under s 424A of the Act are conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

3. On the material before the Court, the Tribunal approached the review with an open mind reasonably capable of persuasion as to the merits.  No case of bias is made out. Accordingly, ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, the Tribunal, on the face of the material before the Court, correctly identified the relevant law and complied with its statutory obligations in the conduct of the review as well as the requirements of procedural fairness. The Tribunal, on the face of its reasons did not apply the wrong test or ask itself the wrong question.

Existence of section 438 certificate

1. The first respondent has drawn the Court’s attention to the existence of a certificate under s 438 of the Act dated 23 March 2017. The material the subject of that certificate has been admitted into evidence. The Court has carefully scrutinised the material and it cannot be said to have been relevant to the issues the subject of the review.  The material the subject of the certificate cannot be said to be credible, relevant and significant information. The non-disclosure of the certificate or the material the subject of the certificate did not give rise to any denial of procedural fairness in the conduct of the review.

2. Further, the non-disclosure of the certificate and the documents the subject of the certificate did not in the present case, give rise to any practical injustice, as the documents were clearly irrelevant to the issues in the subject of review.  Accordingly, no jurisdictional error is made out by the non-disclosure of the certificate or the documents the subject of the certificate in the present case. Further, this is a case where the court is satisfied that the material the subject of the certificate could not possibly have given rise to a different outcome in the review and if there was any relevant error, relief should be withheld on discretionary grounds. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the Tribunal did not accept the applicant’s claims in respect of being harmed by her husband. That was an adverse credibility finding that was open to the Tribunal for the reasons given by the Tribunal as summarised above. Ground 3 in substance, invites this Court to engage in impermissible merits review. For the reasons already given, that adverse finding cannot be said to be irrational, illogical or unreasonable. No jurisdictional error is made out by ground 3.

2. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 February 2018