CLF15 v Minister for Immigration
[2016] FCCA 1992
•2 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLF15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1992 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 417 |
| Cases cited: AMA15 v Minister for Immigration [2015] FCA 1424 AOM15 v Minister for Immigration [2015] FCA 1285 AXH15 v Minister for Immigration& Anor [2016] FCCA 617 SZGIZ v Minister for Immigration (2013) 212 FCR 235 SZQTJ v Minister for Immigration & Anor [2015] FCCA 3226 SZRAG v Minister for Immigration [2016] FCA 189 SZRSX v Minister for Immigration & Anor [2016] FCCA 622 SZVCH v Minister for Immigration & Anor [2015] FCCA 2950 |
| Applicant: | CLF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3162 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2016 |
REPRESENTATION
The Applicant 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 filed on 19 November 2015 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the amount of $3416, in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth), as it applied at the time the application was filed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3162 of 2015
| CLF15 |
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, formerly the Refugee Review Tribunal (Tribunal). The decision was made on 21 October 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts relating to this matter are set out in written submissions made by the Minister and filed on 26 July 2016.
Background
The applicant is a citizen of Mongolia[1] who arrived in Australia on 22 January 2008 as the holder of a tourist visa.[2]
[1] Court Book (CB) 179 [24].
[2] CB 1; 173 [2].
On 21 February 2008, the applicant applied for a protection visa (first protection visa application) using a false name and claiming he was a citizen of China.[3] On 22 August 2008, the Tribunal affirmed a delegate's decision to refuse the applicant the visa.[4]
[3] CB 19.
[4] CB 63.
On 27 October 2008, the applicant applied for Ministerial intervention under s.417 of the Migration Act 1958 (Cth) (Migration Act), which was unsuccessful.[5] The applicant made two further unsuccessful applications for Ministerial intervention on 23 September 2011 and on 24 May 2013.
[5] CB 77.
On 17 October 2013, the applicant lodged a second protection visa application which was valid on the basis of SZGIZ v Minister for Immigration[6] (SZGIZ) (the current protection visa application).[7] In the current protection visa application, the applicant uses a different name, and states that he is a citizen of Mongolia.[8]
[6] (2013) 212 FCR 235.
[7] CB 82.
[8] CB 82 [1]; 83 [21].
The applicant did not attend an interview with the delegate.[9] On 30 April 2014, the delegate refused the protection visa application.[10]
[9] CB 126 [8]; 178 [17].
[10] CB 118.
On 30 May 2014, the applicant applied to the Tribunal for review of the delegate's decision.[11] On 23 April 2015, the applicant appeared before the Tribunal (first Tribunal hearing). The member constituting the Tribunal was unable to finish the review before his appointment expired.[12] On 11 August 2015, the Tribunal invited the applicant to attend a further hearing before it to give evidence and present arguments.[13] On 20 October 2015, the applicant appeared before the newly constituted Tribunal (second Tribunal hearing).[14] On 21 October 2015, the Tribunal affirmed the delegate's decision to refuse to grant the applicant a protection visa.[15]
[11] CB 131.
[12] CB 173 [6].
[13] CB 164.
[14] CB 173 [7].
[15] CB 172.
On 20 November 2015, the applicant commenced the current proceedings.
Applicant's claims
In the current protection visa application, the applicant claims to face significant harm from a dangerous group of criminals who:[16]
a)he encountered in the course of running his second hand car business. They demanded his money, took his cars, subjected him to beatings and threatened his family, causing him to have to flee Mongolia to England for four years, where he unsuccessfully sought recognition as a refugee;
b)he again encountered, some years after returning from England to Mongolia, this time in the Mongolian taxation office. They constantly contacted him. Sometimes they "demanded [him] to the face contract under [the] company name which [he] was working". When he refused their demands, they beat him and threatened to kill him, causing him to go into hiding.
The Tribunal's decision
[16] CB 88-89; 178 [16].
The Tribunal found that the applicant was a citizen of Mongolia and assessed his claims against Mongolia. It accepted that the applicant had assumed a false name and false Chinese nationality for the purposes of the first protection visa application.[17]
[17] CB 179 [22]-[23].
On the basis of the reasoning in SZGIZ, the Tribunal found that it did not have the power to consider the applicant's claims under s.36(2)(a) of the Migration Act because the applicant's first protection visa application was refused on the basis of the Refugees Convention. The Tribunal therefore only considered his claims under the complementary protection provisions in s.36(2)(aa) of the Migration Act.[18]
[18] CB 179 [26].
In summary, the Tribunal found that the applicant was not a “witness of truth” and had “fabricated” his claims in the current protection visa application.[19] In coming to this conclusion, the Tribunal had regard to:
a)the applicant's willingness to provide false information and fabricate claims in earlier applications.[20] The applicant gave evidence at the second Tribunal hearing that he had assumed a false identity and fabricated claims in his British visa application,[21] Australian visitor visa application,[22] the first protection visa application,[23] and Departmental interviews regarding his Ministerial intervention applications.[24] The Tribunal did not accept the applicant's explanation that he did not want to reveal his true identity[25] because he was unaware of the confidential nature of the protection visa applications,[26] noting that he had obtained immigration advice from Legal Aid;[27]
b)internal inconsistencies in the applicant's evidence regarding the current protection visa application. In particular, the Tribunal noted that:
i)in the current protection visa application form, the applicant omitted his previous job as a used car salesman (at question 41)[28] and his close relatives who lived outside Australia (at question 13).[29] In respect of the latter omission, the Tribunal did not accept that the applicant had misunderstood the question due to his lack of English. It noted the applicant's earlier statement that he did not seek assistance or need assistance in completing the application form. The Tribunal also observed the applicant's mostly fluent English at the second Tribunal hearing;[30]
ii)the applicant's evidence given at the second Tribunal hearing was inconsistent with the information recorded in his current protection visa application form as to the countries from which he had imported used cars,[31] whether he had been beaten by the criminals,[32] the length of time during which he was harassed by the criminals,[33] and whether the criminals, or an acquaintance, approached the applicant when he attended the Mongolian taxation office;[34] and
iii)the applicant put forward a new claim at the second Tribunal hearing that he purchased guns and had threatened to shoot and kill the criminals;[35] and
c)the applicant's claim at the second Tribunal hearing that he was mentally stressed and under "medical treatment". The Tribunal noted that the applicant only provided an undated document from a medical practice which referred to the applicant having a problem with depression but did not refer to him attending on a counsellor, psychologist or psychiatrist.[36] Observing that the applicant was "articulate, composed and alert" and responsive to questions asked at the second Tribunal hearing, the Tribunal found that he was not prevented by any physical or mental problem from giving evidence at the second Tribunal hearing.[37]
[19] CB 184 [58].
[20] CB 180 [32]
[21] CB 180 [30].
[22] CB 181 [41]-[42] regarding dates of employment.
[23] CB 180 [33].
[24] CB 183 [49].
[25] CB 180 [30], [33].
[26] CB 180 [35].
[27] CB 180 [34]-[36].
[28] CB 182 [44]; 87 [41].
[29] CB 182 [46]-[47]; 101 [13].
[30] CB182 [47].
[31] CB 183 [53].
[32] CB 184 [55].
[33] CB 184 [54].
[34] CB 184 [54].
[35] CB 184 [56]-[57].
[36] CB 183 [51].
[37] CB 183 [52].
In light of the above, the Tribunal accepted that the applicant went to England unlawfully in 2002, lodged an unsuccessful application for refugee status and voluntarily returned to Mongolia in November 2006.[38] However, the Tribunal:
a)did not accept the applicant owned a business selling used cars in Mongolia. Accordingly, it did not accept any of the applicant's claims relating to the criminals which followed,[39] including that:
i)the applicant left Mongolia in 2001 or 2002 to escape from the criminals;[40]
ii)that he was approached and beaten by the criminals, or alternatively an acquaintance, following his return to Mongolia in 2006 causing him to go into hiding until he obtained his visitor visa for Australia;[41]
iii)that the applicant is at risk of significant harm from the acquaintance or the criminals if he returned to Mongolia;[42] and
b)accepted that it may be difficult for the applicant to obtain employment in Mongolia, but found that the applicant had proven to be very resourceful with useful language skills that may enhance his employment prospects.[43]
[38] CB 185 [60].
[39] CB 185 [59].
[40] CB 185 [59].
[41] CB 185 [61].
[42] CB 185 [62].
[43] CB 185 [63].
The Tribunal therefore found that the applicant did not satisfy s.36(2)(aa).[44]
[44] CB 185 [66].
Present proceedings
These proceedings began with a show cause application filed on 20 November 2015. The applicant raises the following grounds of review:
1.The Tribunal erred in making an irrelevant consideration.
Particulars
a.At [47] The Tribunal noted that the previous question (12) asked about close relative living in Australia and question 14 asked about close relatives living outside Australia, the applicant responded that his lack of English made him misunderstand the question. The Tribunal did not accept his explanation because:
i. Throughout the hearing the applicant chose to answer many of the questions in English despite having the assistance of a Mongolian interpreter and
ii. did so in fluent English for the most part; and
b.He did not seek assistance when completing his second application for protection because he did not need to.
2.The Tribunal erred in failing to make a relevant consideration regarding the applicant's mental health.
Particulars
a.At [51] the applicant said he was under “mental treatment" and submitted a document titled “Review GP Management Plan Team Care Arrangement";
b.At [52] without asking the applicant about his mental treatment or medication the Tribunal made a finding based on its own observation of the applicant during the hearing that he was not prevented by any physical or mental problem from giving evidence and presenting arguments relating to the issues in his case; and
c.The Tribunal actively ignored the medical evidence before her and thereby failed to consider that the applicant's inconsistent evidence may have been the result of his mental health.
I have before me as evidence the applicant’s affidavit filed with his application and the court book filed on 2 February 2016.
Only the Minister prepared written submissions in accordance with orders made by a registrar. I invited oral submissions from the applicant today. He sought to present additional material bearing upon his claims for protection. I declined to receive those documents because they were the result of enquiries made by the applicant after the Tribunal decision. The applicant also sought to present two medical reports concerning him which had apparently been made by STARTTS. I declined to receive those documents because neither of them was available to the Tribunal and one of them post-dated the Tribunal decision.
There is no substance to the grounds of review advanced by the applicant. In that regard, I agree with the Minister’s submissions concerning those grounds.
The applicant's two grounds of review allege the Tribunal erred by failing to take into account relevant considerations and taking into account irrelevant considerations. For the reasons that follow, the application for review fails to demonstrate any jurisdictional error by the Tribunal.
Ground 1
By Ground 1, the applicant alleges that the Tribunal took into account irrelevant considerations, namely the Tribunal's observations as to the applicant's English language skills, and the applicant's previous statements that he had not required assistance in completing the current protection visa application form.
In considering the applicant's assertion that "his lack of English made him misunderstand the question" in the application form, the applicant's previous evidence that he did not need any help completing the application form[45] was clearly relevant. It was also not unreasonable for the Tribunal to have regard to its own observations of the applicant's English skills at the second Tribunal hearing as they were relevant to the issue of the applicant's claimed lack of English language skills.
[45] CB 179 [28].
Ground 2
By Ground 2, the applicant further alleges that the Tribunal failed to take into account a relevant consideration, namely the applicant's mental health, when considering the applicant's inconsistent evidence. In particular, the applicant asserts that the Tribunal actively ignored the medical evidence, did not ask the applicant about his mental treatment or medication and made a finding based on its own observation of the applicant at the hearing.
This is factually incorrect. At [51]-[52] of the decision record, the Tribunal explicitly considered the applicant's claim that he was mentally stressed and "under "mental treatment"", asked the applicant about this treatment and noted the documentary medical evidence provided by the applicant. As the applicant had "not provided the Tribunal with any current evidence in relation to his mental state or him undergoing counselling"[46] and appeared "articulate, composed and alert"[47] throughout the hearing, the Tribunal found that the applicant was not prevented from giving evidence or presenting arguments due to mental issues. This was a conclusion open to the Tribunal on the evidence before it.
[46] CB 183 [51].
[47] CB 183 [52].
Further, the Tribunal's adverse credibility finding largely relied on false and inconsistent evidence provide by the applicant prior to the Tribunal hearings.
The Minister properly raised an additional issue at [25] of his submissions.
The Minister notes that, applying the reasoning in SZGIZ, the Tribunal considered it was restricted to deciding whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Migration Act. In contrast, the delegate had considered the applicant's claims against the Refugees Convention criterion in s.36(2)(a) of the Migration Act. This is inconsistent with my approach in SZVCH v Minister for Immigration[48] (SZVCH). Given the current appellate authority in relation to SZVCH, the Minister submits that the Tribunal made no error in confining itself to only considering the applicant's satisfaction of s.36(2)(aa) of the Migration Act in the circumstances of this case.[49]
[48] [2015] FCCA 2950.
[49] An appeal from the judgment of SZVCH was heard by a Full Court of the Federal Court on 4 May 2016 and is currently reserved. Nevertheless, the Tribunal's reasoning is supported by the single appellate judgment of AMA15 v Minister for Immigration [2015] FCA 1424 at [48], which was endorsed by SZRAG v Minister for Immigration [2016] FCA 189 at [23] and is consistent with AOM15 v Minister for Immigration [2015] FCA 1285 at [9]. It was also found to be plainly wrong in SZQTJ v Minister for Immigration & Anor [2015] FCCA 3226 at [16] per Judge Street. See also my judgments in SZRSX v Minister for Immigration & Anor [2016] FCCA 622 at [22] and AXH15 v Minister for Immigration& Anor [2016] FCCA 617 at [13]-[17].
On the basis of current Federal Court authority, my decision in SZVCH could not be followed. However, the Minister’s appeal against my decision in SZVCH is currently subject to a reserved judgment of a full bench of five.
I have considered whether I should adjourn this matter pending the outcome of that appeal. I have decided not to do so because of the particular circumstances of this Tribunal decision. The applicant faced insuperable credibility problems before the Tribunal. He had previously claimed protection under a false name and false nationality. Although he asserted that the claims he now makes were truthful, he conceded before me today that his earlier protection claim in the United Kingdom, referred to by the tribunal at [60],[50] related to the same problems which are the basis for his current application. That application, like his earlier false application in Australia, was unsuccessful.
[50] CB 185.
The Tribunal clearly rejected all of the material factual claims made by the applicant on this occasion. This establishes, to my satisfaction, that the outcome would have been the same before the Tribunal had the Tribunal addressed the Refugee Convention criterion. Further, given the applicant’s migration history and the fate of his earlier claims to protection, it is most unlikely that a differently constituted Tribunal would have decided differently.
Accordingly I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) the application filed on 19 November 2015 be dismissed.
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the court scale as it applied at the time the application was filed. The applicant did not wish to be heard on costs. The applicant made no submissions on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the amount of $3,416, in accordance with in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules, as it applied at the time the application was filed
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 11 August 2016
0
7
2