CLQ15 v Minister for Immigration
[2017] FCCA 341
•1 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLQ15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 341 |
| Catchwords: MIGRATION – Judicial review – impermissible merits review. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A) |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | CLQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2594 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 16 February 2017 |
| Date of Last Submission: | 16 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 1 March 2017 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Young |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for judicial review filed 23 November 2015 be dismissed.
The applicant pay the respondent’s costs fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2594 of 2015
| CLQ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision by the Administrative Appeals Tribunal to affirm decision of the delegate to refuse the applicant’s application for a protection (Class XA) visa. The applicant appeared without legal representation but with the assistance of an interpreter. The applicant has been in Australia for some 16 years. He first applied for a protection visa in 2001. That protection visa was refused, and his appeal processes were unsuccessful.
The applicant was able to apply for a second protection visa on the basis of the decision of the Full Court of the Federal Court of Australia in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71. The effect of that Full Court decision is that, because at the time the applicant applied for his first protection visa the complementary protection criteria in s.36(2)(aa), of the Migration Act 1958 (Cth) (“Migration Act”) had not come into force, he was permitted to apply for a second protection visa on the basis of the complementary protection criterion. The applicant’s claims for review are not particularised, which is not surprising given that he prepared it without the assistance of a lawyer. He complains that he and Mr Sathan Singh are from the same village but that the Tribunal did not believe him. He feels the Tribunal did not look at his case properly. At the hearing the applicant said that he applied for protection in Australia because Australia is a safe country. He referred to his history in Australia and said he has been working the same farm for the past 16 years. He tried to get a passport from the Indian consulate in 2013 but they would not give him one. He complained about that the Tribunal finds that his family are safe and then sought to rely on paperwork he brought to the Court.
At the hearing before me the applicant submitted that his parents only stay in their house in their village and that they asked about his whereabouts. He said he cannot go back to India because it is not safe and that Australia should be considering the fact that he has lived here for 16 years because his country is not safe. He says he told the Tribunal everything but that they did not believe him. He made reference to the country information not being right and that India is not a safe country even today.
The complaints that the applicant raises are really seeking that this Court engage in an impermissible merits review.[1] To the extent that the applicant says in his application for judicial review that the Tribunal did not consider all his claims, he did not provide any particulars of that in his application, and in his oral submissions really what he was complaining about was that the Tribunal did not believe what he told them. The nature of a judicial review is limited to considering whether or not the Tribunal has made a jurisdictional error. It is not the role of the Court to re-assess the applicant’s case on its merits. To the extent that the applicant was in essence seeking to rely on further evidence today, that is also not permissible, as that would involve the Court engaging in merits review.
[1] Abebe v Commonwealth (1999) 197 CLR 510; SZRRN v Minister for Immigration & Citizenship [2014] FCA 77 at [44].
It is clear from the delegate’s decision, which commences at page 99 of the Court Book, that the delegate was not satisfied about the applicant’s credibility, and because of those concerns the delegate was not satisfied that the applicant had a profile as having connections with the Babbar Khalsa (“BKI”) which is a Sikh militant organisation, which the Indian government views as a terrorist and antigovernment group.
The delegate did not accept that the applicant would face a real risk of serious harm if he returned to India owing to any actual or implied political opinion imputed to him and found that there was nothing to suggest that he had a fear of serious harm based on his race, nationality or membership of a political group. The applicant by virtue of the delegate’s decision was on notice that these issues, in particular his credibility overall, were the issues of concern to the delegate.
Indeed, those same issues concerned the Tribunal. The applicant had the assistance of a migration agent at the time he applied for the review to the Tribunal of the delegate’s decision. As is clear from the Court Book, his migration agent obtained a postponement of the hearing before the Tribunal in the first instance, because it fell on a day of religious significance to him. He received both a hearing invitation for the first scheduled hearing and then a further hearing invitation, which appears at Court Book, 140, for the second hearing. His migration agent responded to the invitation, and there is a letter from his agent at Court Book, 142, where she says she has been instructed by her client not to attend the hearing. That of course is a matter for the applicant.
The applicant attended the hearing and gave evidence. The Tribunal decision commences at Court Book, 152. The Tribunal accurately sets out the legislation, the applicable legislation, including the ministerial direction that it was required to consider, and then summarises the applicant’s claims commencing at [20] of that decision. The applicant claims that he was a childhood friend of a Mr Satham Singh, who was a member of BKI.
In the next several paragraphs the Tribunal sets out the evidence that the applicant gave and the concerns that the Tribunal put to him, giving the applicant an opportunity to respond with respect to aspects of his evidence which the Tribunal found, as it records at [77], to be implausible and lacking in detail. For example, the Tribunal found that it was not credible that a 24-year-old man would want to be friends and have dinner with a 14-year-old. The applicant said that Mr Singh was still at high school, which would have meant he was in high school at the age of 24. When this was put to the applicant, he was not able to explain the discrepancy. This was also not consistent with country information which generally supports the fact that Indian secondary school caters for children between approximately 12 and 18 years of age. That is one example of the credibility concerns that the Tribunal had. It outlines several others.
The Tribunal found that the applicant’s claims were contradictory, and at [86] the Tribunal sets out the various claims of the applicant that it rejects. As a result of its adverse credibility findings and the country information, the Tribunal was not satisfied that the applicant had a profile where upon return to India he would be profiled as being a sympathiser of the BKI.
The Tribunal also rejected the applicant’s claims that he would be targeted for harm on return to India because he is a Sikh. Again the Tribunal also referred to country information in that regard. The Tribunal also referred to the evidence that the applicant gave that in 2013 he attempted to obtain an Indian passport from the Indian consulate but was refused the passport.
At [85] of the decision the Tribunal says that the applicant said he had wanted to return to India to see his family and he was prepared to offer the Australian government a $35,000 bond if he was able to leave the country and be able to return. Before the Court, the applicant said that in 2013 he was arrested by immigration and placed in detention for two weeks, and was required to give a $35,000 bond on his release. He did say that he had approached the Indian consulate and attempted to get an Indian passport but was refused.
The Tribunal found that his action in trying to obtain a passport to see family are not the actions of someone was afraid of returning to their home country. This was one of the reasons but by no means the only reason that the Tribunal found that the applicant was not a credible witness. The assessment of the applicant’s credibility is a matter that is exclusively for the Tribunal to determine and not the Court.[2] It is apparent from reading the Tribunal decision that the findings that the Tribunal made were open to it.
[2] Exparte Durairajasingham (2000) 168 ALR 407; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547.
The applicant in the hearing complained about the country information that the Tribunal relied on. The applicant did not submit any country information to the Tribunal, noting that he did have a migration agent assisting him. In any event, the choice and weight to be placed on country information is again a matter for the Tribunal.[3] This is not a case of an applicant providing country information and submissions that the Tribunal has not considered.
[3] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
Having considered the Court Book and the submissions, I am satisfied that the Tribunal complied with its obligations under division 7, part 4 of the Migration Act. I am also satisfied that the Tribunal properly carried out its statutory task and did not commit a jurisdictional error, therefore I dismiss the application.
Counsel for the Minister indicated that if successful, the Minister was seeking costs in the sum of $5,800 which is less than the amount allowed for under the scale.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 1 March 2017
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