COW16 v Minister for Immigration

[2018] FCCA 341

FEDERAL CIRCUIT COURT OF AUSTRALIA

COW16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 341

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – where Tribunal found Applicants were not credible or reliable – Tribunal’s findings were rational and reasonable – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5,36,422B, 476.

Migration Regulations 1994 (Cth), cl.1.12(1)(a).

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) HCA 6.

First Applicant: COW16

Second Applicant: COX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1960 of 2016

Judgment of: Judge Hartnett

Hearing date: 5 February 2018

Delivered at: Melbourne

Delivered on: 5 February 2018

REPRESENTATION

The Applicants: In Person

Solicitor appearing as Counsel for the First Respondent: Ms Kowalewska

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1960 of 2016

COW16

First Applicant

COX16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application by the Applicants for judicial review of a decision of the Migration Refugee Division of the Administrative Appeals Tribunal (‘the Tribunal’) affirming a decision of the delegate of the Minister of Immigration and Border Protection not to grant to the Applicants’ protection (Class XA) visas (‘the visas’).

2. The First Applicant purports to raise two grounds for judicial review in the application filed 13 September 2016.  The grounds as stated therein are as follows:-

   “1. I applied for PROTECTION VISA after my student visa application and review finishied (sic) to department of immigration which was refused.

   2. Then I apply to AAT for review of that decision. Which is affirms by tribunal on 26/8/2016”

3. As can be seen from the above, there are no particulars pleaded in the grounds of application as filed by the Applicant. 

4. In an affidavit affirmed by the First Applicant on 5 September 2016, the First Applicant deposed that:-

   “…I think immigration department and AAT did not provide opportunity to prove my claim.”

5. On 15 March 2017, the Court made orders including an order that on or before 8 January 2018 the Applicants file and serve an amended application with proper particulars of grounds and any written submissions. The Applicants have not filed nor served any submissions, and nor did they amend the application so as to provide particulars of the grounds as stated, or in any other way amend the application.

Background

1. The First Applicant claimed to be born on 31 July 1981 in Ahmedabad in the Indian State of Gujarat and claimed before the Tribunal to be a citizen of India.  The Second Applicant claimed to be born on 1 March 1982 in Ahmedabad in the Indian state of Gujarat and claimed to be a citizen of India.  The First Applicant claimed to belong to the Rajput caste, while the Second Applicant claimed to belong to the Hindu Suthai caste before her marriage, but before the Tribunal considered herself part of the Rajput caste.

2. The Applicants claimed before the Tribunal that they were married on 21 August 2008 in India and that the marriage was not arranged by their respective parents. A marriage certificate issued by the Government of Gujarat was on the Tribunal’s file indicating the marriage was solemnised on 21 August 2008 in Gujarat.  The Applicants claimed to have no children. They both claimed to speak, read and write in Gujarati and Hindi and to speak and read the English language.  Both claimed to belong to the Hindu religion.

3. The Second Applicant applied for a (Class TU) subclass 572 student visa for vocational education on 15 April 2009, which was valid until 17 August 2011.  The First Applicant was a secondary or subsequent visa holder to the Second Applicant’s student visa, as he was accepted as the spouse of the Second Applicant. 

4. The Second Applicant applied for a further subclass 572 visa on 11 August 2011 with the First Applicant as a subsequent Applicant.  Those visas were refused by the Department of Immigration and Border Protection (‘the Department’) on 16 September 2011 as the Second Applicant failed to comply with condition 8202 as the primary visa holder to her previous student visa. Condition 8202 was the condition requiring the Second Applicant to maintain her enrolment in a registered course. After this refusal decision, the Applicants appealed the decision to be reviewed by the Tribunal, differently constituted. 

5. On 28 March 2013, the Tribunal, differently constituted, affirmed the decision of the delegate of the Minister to refuse the student visa.  On 19 April 2013, the Applicants applied to the Federal Circuit Court of Australia to have the decision reviewed. Their judicial review application was dismissed on 11 November 2013.  An appeal thereafter by the Applicants was dismissed by the Full Court of the Federal Court of Australia on 5 May 2015.

6. The First Applicant lodged his application for a (Class XA) protection visa on 7 October 2014.  The Applicant and his spouse were granted bridging visas (Class WC) on 7 October 2014.  Further bridging visas (Class WC) with work rights were granted to the Applicant and his spouse on 24 November 2014.  Those visas, at the time of the Tribunal hearing remained in effect.

7. The delegate’s decision in respect of the protection visas, the subject of these proceedings, was made on 25 February 2015.  The delegate found the First Applicant to be not credible.  The delegate said in that decision record that:-

   “…the minimal and vague information stated in the applicant’s claims raise strong doubts in my mind as to the genuineness of the applicant’s claims.”

   Further:-

   “…it is probable, in my view, that the applicant has applied for a Protection visa to remain, or prolong his stay, in Australia.”

8. During the period from the First Applicant’s arrival in Australia until his application for a protection visa was lodged by him, he travelled to India on three occasions:-

   a)between May and June 2010;

   b)between 3 May 2011 and 29 May 2011; and

   c)between 2 February 2012 and 14 February 2012.

   During the period from the Second Applicant’s arrival in Australia, until her application for a protection visa, she travelled to India on three occasions:-

   a)between September and October 2010;

   b)between 12 January 2012 and 14 February 2012;  and

   c)between January and February 2014. 

Applicants’ claims

1. The First Applicant made written protection claims, and the Second Applicant made oral protection claims, at the Tribunal hearing.

2. The First Applicant claimed to fear harm from his paternal uncle in Gujarat, from whom his family borrowed money in 2009, to help him settle in Australia.

3. In his written claims, provided as part of his visa application, the Applicant claimed:-

   a)that his parents experienced problems with his uncle in 2011, who demanded repayment of the loan immediately, in spite of the earlier agreement to pay it back gradually;

   b)that when the First Applicant travelled to India for a family wedding, in 2012, his uncle came to his family home with some men and started a fight, and the First Applicant and his father were physically abused;

   c)that his uncle tried to kill him;

   d)that a complaint was lodged with the local court, by the uncle, demanding that the First Applicant’s father sell his land and repay the loan;

   e)that the Applicant’s uncle is well-connected with the local police and mafia and he bribed them to harass the First Applicant’s family; and

   f)that as a result, the First Applicant was advised not to return to India, as his uncle had threatened to kill him.

4. The Second Applicant gave oral evidence to the Tribunal, that she feared harm from the First Applicant’s uncle, as she had received two death threats from him.

5. At the hearing before the Tribunal, the Applicants having been invited on 8 July 2016 to attend a scheduled hearing at the Tribunal to present evidence and give arguments on their review applications, such hearing which they attended on 25 July 2016, the First Applicant claimed that he did not seek protection in Australia at an earlier time, because he was not aware of the availability of protection visas, and that he had been told “it was only for Muslims” and “gaining protection visas was not easy”.

Tribunal Decision

1. The Tribunal Statement of Decision and Reasons (‘the Decision Record’) is a considered and well-reasoned Decision Record. The Tribunal sets out the evidence of the First Applicant and, subsequently, that of the Second Applicant. The Tribunal then sets out those questions put to each of the Applicants by the Tribunal.  The Tribunal notes the post-hearing submissions filed by the Applicants.

2. The Tribunal found that the Applicants were not credible or reliable witnesses and that their evidence was “considerably vague, inconsistent and misleading”.

3. The Applicants presented “a number of weak and inconsistent claims” for protection, arising out of fear of persecution from the members of the First Applicant’s family, over outstanding debts.

4. The Tribunal accepted that the Applicants were nationals of India, for the purposes of the Convention, and that India was a receiving country, under sub-s.36(2)(aa) and s.5 of the Migration Act 1958 (Cth) (‘the Act’).

5. The Tribunal accepted that the couple were in a genuine spousal relationship, despite its significant reservations that the couple had fabricated their marriage for migration purposes. The Tribunal, being so satisfied, found that the Second Applicant satisfied cl.1.12(1)(a) of the Migration Regulations 1994 (Cth) and, accordingly, that she had membership of the same family unit as the First Applicant, for the purposes of the application for review before it.

6. Under the heading “Credibility Findings” the Tribunal set out those matters it was required to bear in mind, before it should make an adverse finding in relation to a material claim made by any Applicant.

7. The Tribunal, however, as set out in paragraph 86 of the Decision Record, was concerned with the Applicants’ “confused and inconsistent reasons provided to the Tribunal regarding their travel history to and from India since arriving in Australia”.  The Tribunal found that the First Applicant’s behaviour, in returning to India on separate occasions, after claiming to have accumulated debts and to have experienced threats of serious harm:-

   “…very significantly undermines his claim that he has been targeted by his uncle, falsely or otherwise, to have owed a substantial amount of money.”

   Further, the Second Applicant’s behaviour in returning to Gujarat on occasions, for periods of six weeks, given her claim to have personally received threatening telephone calls, undermined her claims that she had been targeted by her husband’s uncle.

8. The Tribunal found the Applicants did not satisfy the criterion set out in s.36(2)(a) of the Act or the alternative criterion in s.36(2)(aa) of the Act and affirmed the decision not to grant the visas, as a consequence of the following findings, as accurately set out in the First Respondent’s submissions and adopted herein:-

   “18. The first applicant’s claim that a serious incident occurred when there was an altercation with his uncle in 2011, was inconsistent with the second applicant’s claim that the threats of serious harm occurred in either 2013 or 2014.

   19. In the context of the first applicant’s claim, to have received 50 – 100 threatening telephone calls from his uncle, the Tribunal found implausible the claim that the first applicant’s uncle had stopped making threatening calls to the second applicant when requested to do so because ‘in the applicant’s culture the uncle would have obliged that request’.

   20. The second applicant’s oral evidence, about the threats made to her was found to be vague, and the Tribunal did not accept that the applicant’s explanation for being unable to provide evidence of the calls made. The Tribunal went in (sic) to find that the applicants had fabricated their claims about receiving telephone threats from the first applicant’s uncle.

   21. A statement and First Incident Report (FIR) dated 2011, which led to the first applicant being held in police custody for a night on account of false accusations made against him was provided to the Tribunal by the first applicant in support of his claim that he and his family were in dispute with a man called Gunuji. The Tribunal noted that the first applicant’s uncle, a brother of the applicant’s father, was named Gunuji, but the FIR referred to a man named Gunuji from the Chauhan caste, whereas the first applicant claimed to be from the Kshatriya Jatput caste. Further, the first applicant’s name was not mentioned in the FIR.  Only a translated copy of the complaint was provided, and not the original document. The Tribunal placed little weight on the documentary evidence provided by the first applicant, and did not accept that his claimed arrest had occurred.

   22. The first applicant failed to provide to the Tribunal court documents regarding the applicant’s alleged counter claim that he was forced to hand over land, under duress by the applicant’s brothers, despite having an ample opportunity to do so.

   23. The Tribunal did not accept the first applicant’s explanation that his uncle did not harm his brothers or his father, or that they did not relocate to another part of India, in response to his threats, because the uncle assumed that the stolen money was being used by the applicants to build a business in Australia.  Further, as the applicants had made six return trips to India, the Tribunal did not accept that they had no capacity to pay the debt and rejected the claim that their uncle would not accept the payment of debt by instalments as implausible, given the size of the claimed debt. The Tribunal was not satisfied that the applicants owed any monies which they did not have the capacity to pay, or that the alleged debts have led to past incidents of threats.

   24. The Tribunal found that the applicants’ claims, regarding their outstanding debts, were ‘an elaborate contrivance to augment the applicants’ otherwise weak claims for protection’.

   25.   The Tribunal noted a delay in applying for protection.  Given the Tribunal’s concerns about the applicants’ credibility, it did not accept the first applicant’s explanation that they were not aware of the existence of protection visas, and found that the delay in applying for protection was a strong indication that they did not have credible claims.”

Consideration

1. Insofar as the Applicants’ grounds of review refer to the delegate’s decision, such application is incompetent.  The Court does not have jurisdiction in relation to primary decisions.[1]

   [1] Section 476(2) Migration Act 1958 (Cth).

2. The First Applicant’s complaint that the Tribunal did not provide him with an opportunity to prove his protection claims, as set out in his affidavit filed contemporaneously with the application, is not particularised and is without merit, as is the entire application.

3. The Tribunal dealt with each and every of the claims made by the Applicants and made findings of fact open to the Tribunal on the materials and evidence before it. The Tribunal’s conclusions were rational and reasonable,[2] and the Tribunal complied with its hearing obligations under Part 7, Division 4 of the Act, that being “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.[3]

   [2] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) HCA 6.

   [3] Section 422B Migration Act 1958 (Cth).

4. The application is dismissed and costs shall follow the event.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 15 February 2018