CQH16 v Minister for Immigration and Border Protection

[2017] FCCA 1498

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQH16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1498

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – refusal of protection visa – applicant fears return to India because of risk of suffering persecution as a consequence of being a party to an inter-faith marriage – Tribunal formed adverse view of applicant’s credibility – no jurisdiction error established – applicant not provided with documents prior to hearing on basis ministerial immunity claimed – documents released to court and claim for privilege withdrawn – documents have no bearing on applicants claim – no procedural unfairness accorded to applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 65, 476, 474, 438(1)(a)

Cases cited:
S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Chan v Minister for Immigration (1989) 169 CLR 379
Minister for Immigration v Guo (1997) 191 CLR 559
Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh [2016] FCAFC 183
re Minister for Immigration & Multicultural Affairs: Ex-parte Lam (2003) 195 ALR 502
Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627
Attorney General (NSW) v Quin (1990) 170 CLR 1
Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429

Applicant: CQH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 295 of 2016

Judgment of: Judge Brown

Hearing date: 21 June 2017

Date of Last Submission: 21 June 2017

Delivered at: Adelaide

Delivered on: 30 June 2017

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Mr d'Assumpcao

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Submitting Appearance

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 295 of 2016

CQH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for the issue of a constitutional writ to quash a decision of the Administrative Appeals Tribunal “the AAT” made on 22 August 2016.  The decision affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection not to grant the applicant a protection visa, pursuant to the provisions of the Migration Act 1958 “the Act”.

2. The applicant is a citizen of India, who arrived in Australia on 28 December 2008, pursuant to a student visa, which was valid until 11 April 2011.

3. The applicant applied for a second student visa in March of 2011, which was refused.  Thereafter, the applicant sought a review of the relevant visa decision in the Migration Review Tribunal, again, unsuccessfully.  This decision was subject to judicial review in this court, which was then known as the Federal Magistrates Court.

4. In May 2013, the court affirmed the decision of the Migration Review Tribunal, not to grant him a student visa.  In June 2013, the applicant unsuccessfully sought the intervention of the Minister for Immigration & Border Protection in respect of the issue of the visa. 

5. Following the Minister’s decision to decline to be involved, in June of 2013, the applicant applied for a protection visa, on the basis that his life would be in danger, if he returned to India and Australia owed him protective obligations, as a consequence of being a signatory to the Refugees Convention. 

6. The applicant is a Sikh.  He claims that prior to his arrival in Australia, whilst studying in India, he formed a relationship with a Hindu woman, Neha.  The two fell in love and formed a relationship.  However, due to their differences in religion, Neha’s family was disapproving of the relationship and the two were forbidden to meet. 

7. It is the applicant’s claim that Neha’s family was well connected and powerful, in the district in which he had lived in India and where members of his family continue to live.  In the context of the forbidden relationship, the applicant claims that he and members of his family were threatened, on numerous occasions, by members of Neha’s family. 

8. More significantly, approximately three or four months before leaving India for Australia, he claims that he was attacked by Neha’s two brothers and subjected to a serious knifing, which resulted in a significant wound to one of his fingers.  During this attack, the brothers told him that next time he would be killed. 

9. The applicant further claims that his parents continue to receive threats, notwithstanding he is no longer in India.  These threats include his parents being told “tell your son to stay away or we will kill him.”  Given this threat, the applicant claims his parents sought a meeting with the woman’s family, approximately six months ago, at which stage a similar threat was made.

10. As a consequence of these threats and the attack, the applicant claims that he applied for a student visa to come to Australia.  He has completed two vocational education courses, whilst in this country.  It is his case that he fears for his life and safety, if he is compelled to return to India.

Relevant provisions of the Migration Act

1. Pursuant to section 65 of the Act, the Minister is required to grant a protection visa, if satisfied that all relevant criteria attaching to that visa has been satisfied.

2. The relevant criteria are set out in section 36(2) of the Act. In particular, pursuant to section 36(2)(a), a person is entitled to a protection visa if he or she satisfies the definition of refugee contained in Article 1A(2) of the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”), which provides that a refugee is a person who:

   “…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

3. The High Court has established that this definition has both subjective and objective elements.  Does the applicant subjectively fear persecution and is that fear objectively well founded. 

4. In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned if he or she is returned to the country.  Necessarily these matters are predictive in nature.  They are often encapsulated under the rubric of the real chance test. 

5. In this context, the High Court has said as follows:

   “The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality.  That is an inquiry which requires close consideration of the situation of the particular applicant …

   Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality.  If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country.  Yet absence of past persecution does not deny that there is a real chance of future persecution.

   Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality.  That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. …”[1]

   [1]  S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 478 – 479 [72] – [73]

6. Accordingly, in this case, the Tribunal was required to assess what was the real chance the applicant in this case would suffer persecution, if returned to India. 

7. In cases such as Chan v Minister for Immigration[2] and Minister for Immigration v Guo[3] the High Court has indicated that a fear can be well-founded even if there is no certainty or even probability that it will be realised; or even though there is only a ten percent chance that persecution will occur.  However far-fetched possibilities of persecution must be excluded.

   [2]  Chan v Minister for Immigration (1989) 169 CLR 379

   [3]  Minister for Immigration v Guo (1997) 191 CLR 559

8. In addition, pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.  Subsection (2A) defines significant harm.  It includes being subject to torture; being subjected to cruel or inhuman treatment; and degrading punishment and treatment.  This is known as the complementary protection criterion.

9. Section 91R qualifies some aspects of the Refugees Convention. In particular, it defines what is meant by persecution.  Persecution must involve serious harm.  Section 91R(2) provides some examples of serious harm.  These include a threat to the person’s life and liberty; physical harassment and ill-treatment; and denial of subsistence.

10. The serious harm, to the applicant concerned, must arise for a reason relating to the race, religion, nationality, membership of a particular social group or political opinion of that person.  The fear of persecution must also be well-founded.

11. In Minister for Immigration & Citizenship v SZQRB [4] the Full Court of the Federal Court had held that the risk threshold for complementary protection under s.36(2)(aa) of the Migration Act is equivalent to the real chance test which applies with respect to Convention obligations enshrined in s.36(2)(a) of the Act, namely that there is a real chance that the person will suffer significant harm.[5]

    [4]  Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505

    [5] Ibid at 551 [248] per Lander & Gordon JJ and 557 [297] per Besanko & Jagot JJ

The jurisdiction of the court

1. Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”. The provision of the Constitution grants original jurisdiction, to the High Court, in matters of mandamus against any officer of the Commonwealth.

2. In his application, the applicant seeks that such a writ issue to the AAT, after its decision has been quashed, and it be directed to re-hear his application according to law. 

3. The jurisdiction conferred by section 474(1) of the Act, which stipulates that a wide variety of decisions, made under the Act, which are of an administrative nature are to be categorised as “a privative clause decision”.

4. Pursuant to the provisions of section 474 a privative clause decision is to be regarded as final and conclusive.  As such, it cannot be subject to challenge, review or appeal.  The decisions of the Tribunal, which the applicant seeks to review, in this case, are such privative clause decision as defined by section 474 of the Act.

5. However, the High Court has held that the provisions of section 476 do not prevent the review of decisions, made by the Tribunal, which are affected by jurisdictional error; have been made in bad faith; or in denial of natural justice.

6. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[6]

   [6]  See Craig v South Australia (1995) 184 CLR 163

7. In Minister for Immigration & Citizenship v Li[7] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker.  As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.

   [7]  Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]

8. It is important to note that, in exercising its jurisdiction under section 476(1) of the Act, the court is not authorised to conduct a merits review of the hearing in question or to substitute its own findings of fact for those of the Tribunal.

9. In Minister for Immigration & Ethnic Affairs v Wu Shan Liang[8] the High Court said as follows:

   “…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.”

   [8]  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ

The current application

1. The applicant has prepared his own grounds of review.  They are as follows:

   “From Paragraph 50 to 63, Tribunal officer stated reasons of the decision. It states that ‘I donot [sic] accept that he and his family have been threatened with the applicant's death for any reason, including the reason of an interfaith relationship. I donot [sic] consider he or his family have been targeted, threatened or harassed.’

   It also says ‘I consider that the stated absence of communications between Neha and the applicant and Neha's Family and the applicant's family over the recent months indicate that any risk the applicant may have faced is remote and that he thus faces no real chance of persecution.’

   Tribunal did not get any reports regarding this from any agency. They just took my interview and came to conclusion. I have not been legally represented. I have done everything on my own. In application I had written that I was attacked. I did not explain in detail about the cut I received but I told this to tribunal officer and showed them where it was. Tribunal made its mind on wrong facts and ignored the facts told by me. Officer stated that now there is no risk to me. So the officer wants me to go back get attacked and I am saved then come back and apply for protection. Member has made error in decision.”

The decision of the AAT

1. On 18 September 2015, a delegate of the Minister declined to grant the applicant a protection visa.  The delegate was not satisfied that Australia owed protective obligations to the applicant.  As a consequence of this decision, the applicant lodged an application for review in the Tribunal. 

2. On 21 July 2016, the applicant was invited to appear before the Tribunal to provide any relevant evidence, in respect of his case and present arguments arising from that evidence.  The applicant accepted this invitation and appeared before the Tribunal on 19 August 2016, with the assistance of a Punjabi interpreter. 

3. The Tribunal summarised its jurisdiction, in the relevant decision, and formulated the issue in this case to be as follows:  whether the applicant is owed Australia’s protection obligations.  In considering this application, the Tribunal had before it the departmental file, relating to the applicant’s protection visa application. 

4. In this context, it is necessary to point out that the Minister claimed that it would be contrary to the public interest for a number of pages of the departmental file to be disclosed to the Tribunal. Therefore, a certificate was issued, pursuant to the provision of section 438(1)(a) of the Act in respect of three folios of the file. I will return to the significance of these documents, in due course.

5. The Tribunal did not consider the applicant to be a credible witness, given that he had not applied for a protection visa until September 2013, which was more than two years after his earlier visa had expired.

6. The Tribunal also noted what it considered to be inconsistencies in respect of the applicant’s evidence relating to his contact with Neha and her family and his account of the stabbing incident initially to the Department and then to it. 

7. In all these circumstances, the Tribunal found as follows:

   ·It rejected any submission that the applicant was unaware of the existence of protection visas during the five years he had previously spent in Australia, prior to his application;

   ·In these circumstances, an adverse inference was drawn surrounding the circumstances of the current application, which was made because the applicant had, in effect, run out of other options to remain in Australia;

   ·In general terms, the applicant was found not to be a credible or truthful witness;

   ·In these circumstances, the Tribunal did not accept that the applicant had come to Australia, pursuant to a student visa, because he was then in fear of his life;

   ·In this context, the Tribunal noted that the applicant had not alluded to any of his protective concerns in his application to the Minister for ministerial intervention;

   ·The Tribunal did not accept that the applicant and his family had been threatened or targeted because of the applicant’s involvement in an inter-faith relationship;

   ·The Tribunal did not accept that the applicant had been physically injured, at the hands of Neha’s family;

   ·In all the circumstances, it was considered that any risk that the applicant would face harm, upon his return to India, was remote and therefore he did not face a real chance of persecution.

8. For these reasons, the Tribunal reached the following conclusions and affirmed the decision not to grant the applicant a protection visa:

   “For the above reasons, I am therefore not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason in India. Hence, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and the applicant therefore does not satisfy the criterion in s.36(2)(a).”[9]

The documents pertaining to the section 438(1) certificate – does the failure to produce these documents to the applicant amount to jurisdiction error?

[9]  See casebook at page 135 [61]

1. In Minister for Immigration & Border Protection v Singh[10] the Full Court of the Federal Court (Kenny, Perram & Mortimer JJ) directed that all documents in respect of which ministerial confidence was claimed but which might possibly be relevant to issues of procedural fairness should be placed in a sealed envelope, prior to any judicial review application. 

   [10]  See Minister for Immigration & Border Protection v Singh [2016] FCAFC 183 at [67]

2. This practice was followed by the Minister’s solicitor, in this particular case, in respect of the documents pertaining to the section 438(1) certificate, issued by the Minister on 21 October 2015.[11] 

   [11]  See affidavit of Claire Susan Stokes filed 16 June 2017 at paragraph 4

1. The Minister has subsequently waived his privilege in respect of these documents.  As a consequence, during the hearing of 21 June 2017, I was provided with the three folios of documents referred to. 

2. The documents in question were created shortly after the Minister’s delegate had declined to grant the applicant the protection visa sought by him.  Essentially, the documents reveal that the delegate utilised an incorrect template for her decision, which template referred to legislative provisions, which were no longer applicable. 

3. It is the Minister’s submission that the documents had possible relevance only to the delegate’s decision and any potential error was corrected when the Tribunal considered all the material afresh and applied the correct legislative provisions. 

4. In addition and more importantly, it is the Minister’s contention that the inability of the applicant to comment upon these documents, before the Tribunal, is immaterial as, for all practical purposes, he has not been accorded any procedural unfairness by this eventuality. 

5. In re Minister for Immigration & Multicultural Affairs: Ex-parte Lam[12] the High Court (McHugh & Gummow JJ) observed that:

   “… the particular requirements of compliance with the rules of natural justice will depend upon the circumstances.  Different procedures may be required, even of the same repository of power, from one situation to the next … ”

   [12]  See re Minister for Immigration & Multicultural Affairs: Ex-parte Lam (2003) 195 ALR 502 at [48]

6. In the same case, Gleeson CJ spoke of a concept he nominated as practical injustice.  He said as follows:

   “Fairness is not an abstract concept.  It is essentially practical.  Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

7. The Minister concedes that the documents in question were not disclosed to the applicant prior to the hearing before the Tribunal.  The Minister claimed public interest immunity on the basis that the documents in question were internal working documents and, as such, their disclosure would be contrary to the public interest. 

8. As previously indicated, the documents indicate that the delegate had used an incorrect template for her decision.  In particular, she had referred to incorrect legislation, which had been superseded by the provisions of the Migration Amendment (Resolving the Asylum Legal Caseload) Regulation 2015.

9. I find that the non-disclosure of these documents to the applicant has resulted in no practical injustice being accorded to him.  In my view, any issues potentially thrown up by these documents were wholly irrelevant to the issues, which the Tribunal had to consider.  As such, the applicant was not denied procedural fairness. 

10. In addition, the information relating to the incorrect template was of a purely procedural nature.  Essentially, it had no significance, so far as the applicant was concerned, that the delegate had used the incorrect template. 

11. In any event, the applicant did not act, in any way, in response to the certificate.  Accordingly, the issue of the certificate and the withholding of the documents covered by it had no implications into the manner in which the hearing took place before the Tribunal, particularly so far as its procedure was concerned. 

12. Essentially, the applicant was informed of all relevant issues before the Tribunal and was given an opportunity to comment upon those issues and provide any evidence relating to them.  The information covered by the certificate cannot, in any way, be considered to be information adverse to the interests of the applicant.[14]

    [14]  See Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627 at 639 at [34]

The specific grounds of review

1. The applicant appeared on his own behalf.  It is often very difficult to explain the legal concept of jurisdiction error to an unrepresented person.  In his oral submissions to the court, the applicant reiterated his view that the Tribunal had incorrectly found that he was not at risk of coming to serious harm, if returned to India, because of his relationship with Neha and the threats of violence made to him. 

2. It is a moot point as to how far the court is required to go to discern some possible ground of jurisdictional error, which has not been clearly articulated by an applicant concerned.  However, doing the best I can, I gather that the applicant’s complaints are as follows:

   ·Firstly, the Tribunal did not obtain any reports, presumably in the nature of country information, regarding the prevalence of persecution of individuals involved in inter-faith relationships, in India;

   ·Secondly, the Tribunal did not accept the applicant’s evidence that he and his family had been threatened because of his inter-faith relationship with Neha;

   ·Thirdly, the Tribunal had reached incorrect findings of fact and had erroneously formed an adverse view of his credibility.

3. The jurisdiction conferred upon the Tribunal, in this matter, was to inquire whether Australia owed protective obligations to the applicant because he had a well-founded fear of suffering persecution, if he returned to India.  In my view, the Tribunal acquitted the jurisdiction conferred upon it.  In doing so it made a number of findings of fact, after hearing evidence from the applicant, to determine this issue. 

4. It is the function of this court to determine whether the decision of the Tribunal was within its legal powers.  It is not the function of the court to examine the merits of that decision or to substitute its own view of the facts, as found by the Tribunal. 

5. In Attorney-General (NSW) v Quin, Brennan J said as follows:

   “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”[15]

   [15]  See Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35/36 referred to in Wu Shan Liang (supra)

6. Similarly, it is the function of the administrative tribunal concerned to make findings about the credibility of any witness or piece of evidence involved and not for the court to substitute its own view or finding in this regard. 

7. In re Minster for Immigration & Multicultural Affairs: Ex-parte Durairajasingham[16] the Tribunal concerned found one part of the particular applicant’s claim to be “utterly implausible”, which McHugh J categorised as:

   “… this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.”

   [16]  See Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407

8. In this particular case, the Tribunal was entitled to test the evidence of the applicant and was not bound to accept it uncritically.  The Tribunal did not accept the credibility of the applicant’s differing accounts of having been subjected to violence at the hands of Neha’s brother.  Specifically, it was noted that it was only recently that he had alluded to being wounded, on the hand, with a knife.

9. In addition, the Tribunal was entitled to draw adverse conclusions, in respect of the applicant’s overall credibility, from what it considered to be inconsistencies in his evidence relating to his recent contact with both Neha and his family.  The Tribunal was required to make such findings of fact, in the exercise of the jurisdiction conferred upon it.  In my assessment, these findings were open to the Tribunal, on the basis of the evidence available to it. 

10. In some circumstances, the failure to make an obvious inquiry about a critical matter, the fact of which is easily ascertainable, may be indicative of a failure to exercise jurisdiction.[17]  However, that was not the case in the current matter. 

    [17]  See Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25]

11. The Tribunal was not required to make the applicant’s case for him or to search out necessary evidence, which may have conceivably supported it.  Rather, it was the applicant to put forward his case, which he did, in answer to the invitation provided to him by the Tribunal.

12. For these reasons, I can discern no jurisdictional error in the decision of the Tribunal.  In my view, the Tribunal considered the applicant’s claim, as presented by him and determined, on its merits, to reject that case.  In so doing, it exercised the jurisdiction conferred upon it. 

13. In addition, the failure to provide the applicant with the various documents, in respect of which the Minister initially claimed public interest immunity, has resulted in no procedural unfairness to the applicant.

14. For all these reasons, the application is dismissed.  The first respondent seeks its costs, which will be granted according to the relevant scale in the sum of $7,260.00.

15. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         30 June 2017

[13] Ibid at [37]