CRC16 v Minister for Immigration

[2018] FCCA 2875

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRC16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2875

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – whether findings of the Tribunal were legally  unreasonable – whether erroneous findings were used to make adverse credibility finding – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 91R

Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089

Applicant: CRC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2018 of 2016

Judgment of: Judge Hartnett

Hearing date: 1 October 2018

Delivered at: Melbourne

Delivered on: 1 October 2018

REPRESENTATION

Solicitor acting as Counsel for the Applicant: Mr Imran

Solicitors for the Applicant: Imran Warraich

Counsel for the First Respondent: Mr Petrie

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2018 of 2016

CRC16

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 that was filed on 20 September 2016. That application is one for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 31 August 2016, wherein the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) to refuse to grant the Applicant a protection (Class XA) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The application as filed contained four grounds of application.  They were unparticularised.  The Applicant, at hearing, sought to proceed on amended grounds with particulars set out in a document lodged by the Applicant on 18 September 2018.  Although the Applicant did not formally amend his application, his Counsel indicated this day that the four unparticularised grounds as set out in the initiating application would not be proceeded with, and that the Applicant sought to proceed with two amended grounds as set out in the document filed by him on 18 September 2018, which included the Applicant’s written submissions.

3. The Applicant’s amended grounds are as follows:- 

   “(1)The Tribunal erred by making findings that were not based on probative evidence; and which were legally unreasonable.

   Particulars

   (a)Applicant’s uncle threatened him to revert to Hinduism prior to the Applicant’s departure from India in 2009.

   (b)Applicant will not face a real chance of serious harm, including systemic discrimination, due to his religious membership and beliefs.

   (c)Disinheritance by the mother is because of property dispute within the family.

   (d)Incidences of violence towards Christians represent a moderate risk of social discrimination and violence, although most Christians can go about their lives without incident.

   (e)Commitment to and knowledge of Christianity is superficial, his attendance in local missionary work and church attendance has not been constant and it is not marked by a deep sense of mission or purpose.

   (2)The Tribunal erred by misapprehending the evidence and then use its erroneous findings about the evidence to make negative credibility findings.

   Particulars

   (a)The Tribunal misapprehended evidence of the Appellant conversion to Christianity in relation to his subjective belief, and then used its erroneous findings about the conversion to make negative credibility findings against him.

   (b)The Tribunal erred by misapprehending evidence of the Appellant’s marriage and the genuineness of the marriage and his fear his return to India based on broke up of the said marriage and then used those findings to make negative credibility findings against them.

   (c)The Tribunal erred by misapprehending the evidence of the appellant’s mother regarding disinheritance and using those findings to make negative credibility findings against him to the extent it placed no weight on his evidence.”

4. The First Respondent sought a dismissal of the Applicant’s application and a costs order.  The First Respondent filed written submissions in respect of the earlier and unparticularised grounds on which the Applicant has now determined not to proceed with. In relation to the amended grounds now before the Court, Counsel for the First Respondent submitted that in essence those grounds were a recitation of the Tribunal’s reasons and went to the merits of the Tribunal’s decision.  The amended grounds therefore, it was argued, did not go to a basis on which jurisdictional error could be established in the Tribunal’s decision. 

5. Both parties referred the Court to the decision in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (‘CQG15’), and in particular paragraphs 36 to 44 therein. The Court is mindful that “Credibility is a matter par excellence for the Tribunal…”[1] is an expression that has been used in many judicial review applications.  However, as set out in paragraph 38 of the decision in CQG15, McKerracher, Griffiths and Rangiah JJ said, relevantly, as follows:-

   [1] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 citing Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405, 67-68.

   “… Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis.  While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as: 

   (a) failure to afford procedural fairness; 

   (b) reaching a finding without any logical or probative basis; 

   (c) unreasonableness;  and/or

   (d) jurisdictional error as discussed by Flick J in SZVAP”.

6. Jurisdictional error as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 is set out in paragraph 20 of that decision and is, relevantly, as follows:-

   “20   … adverse findings of fact founded upon credibility - like other findings of fact - may expose jurisdictional error. A finding of fact founded simply upon a conclusion that a witness is not to be believed is no more immune from judicial scrutiny than is any other finding of fact.

   21     In an appropriate case findings of credibility by an administrative decision‑maker may expose legal error.”

7. There is no allegation that the Tribunal failed to afford the Applicant procedural fairness.  What the Applicant attempts to do by way of relying upon the amended grounds is to assert that the Tribunal reached a finding without any probative basis, and that the findings made by the Tribunal are legally unreasonable.  Further, that the findings made by the Tribunal, erroneous in nature, were then used by it to make negative credibility findings in respect of the Applicant.

8. A consideration of the amended grounds of the Applicant requires not a recitation of the Tribunal’s findings, in a vacuum, as it were, but a consideration of those findings in the context of the evidence which was before the Tribunal and the findings which were reasonably open to the Tribunal on that evidence, absent any illogicality or unreasonableness.

Background

1. The Applicant’s migration history was set out in the delegate’s decision dated 23 October 2014.  That history is relevantly as follows:- 

   a)the Applicant arrived in Australia on 24 April 2009 as a dependent on his wife’s vocational education and training sector (subclass 572) visa.  He had arrived in Australia from Punjab in India, the Applicant being a citizen of India;

   b)on 14 June 2011, the Applicant lodged an application for a skilled graduate (subclass 485) visa.  The Applicant nominated his occupation as chef, and claimed to have completed a diploma in hospitality and management at the Holmes Institute between 2009 and 2011, although he has never held any study rights in Australia; and

   c)on 29 June 2011, the Applicant’s relationship with his wife ended in divorce.

2. On 17 February 2012, the Applicant was invited by the Department of Immigration and Border Protection (‘the Department’) to comment on the following adverse information in relation to his skilled graduate visa application:-

   a)he lodged his application with the assistance of S and S Migration.  S and S Migration had been found by the Department to have lodged applications to the Department containing false and misleading information;

   b)although the Applicant provided a reference number to indicate a successful skills assessment, Trades Recognition Australia (TRE) had no record of providing the Applicant with a skills assessment. 

3. The Applicant did not respond to the Department’s invitation to comment on adverse information.  On 14 April 2012, the Department refused the skilled graduate visa as the Applicant did not meet Public Interest Criterion (PIC) 4020(1) in that he had provided fraudulent information to the Department.  The Applicant sought review of the decision of the delegate and was invited by the Migration Review Tribunal (as it then was) to respond to the above adverse information.  No response was received by the Tribunal. On 26 September 2013 the Tribunal affirmed the decision of the delegate.

4. On 8 November 2013, the Applicant became an unlawful non-citizen following the cessation of his associated bridging A (subclass 010) visa. 

5. On 8 April 2014, some five months later, the Applicant lodged his application for the visa the subject of these proceedings.  He remains to the present time lawfully in Australia on an associated bridging C (subclass 030) visa.

6. In his visa application, the Applicant made the following claims:- 

   a)he converted to Christianity in 2008, following which he left India because his family, Hindu extremist groups and the Hindu community tried to change his mind “in every possible way”;

   b)he had been twice attacked by Hindu extremists before fleeing to Australia; 

   c)he had travelled to India in 2010 to attend his father’s funeral, but had been prevented from attending by his family, who allegedly beat him very badly; 

   d)were he to return to India he would feel the wrath for leaving Hinduism, which is viewed as the paramount crime and warrants the penalty of death;  and

   e)the authorities are unable and unwilling to protect him as they have been given bribes and have previously accused him of “fake crimes”.

7. Included with his application for the visa was an extract of the Punjabi marriage registry indicating that the Applicant and his former wife were married on 7 August 2007; a warrant issued by a magistrate; a newspaper article with a disinheritance notice; and an original baptism certificate.

8. The Applicant was invited to attend an interview with the delegate on 2 July 2014.  During the course of that interview, he made further claims which were as follows:-

   a)the Applicant was born Hindu and baptised to Christianity in India in 2008;

   b)the Applicant was in a love marriage to a Sheik woman in 2008 or 2009, which ended in divorce in 2011 due to the disapproval of the wife’s family of the Applicant’s religion;

   c)in 2008, the Applicant’s uncle verbally threatened to kill him if he did not revert to Hinduism.  The Applicant claims that since that threat, his uncle had stopped talking to him;

   d)his family filed two false claims against him with the local police, and he is now on the “wanted list”;

   e)were he to return to India, he would be arrested on arrival at the airport; and

   f)he is too scared to go to the police in India as they are corrupt.

The Tribunal

1. On 7 September 2015 and 14 June 2016, the Applicant attended hearings before the Tribunal to give evidence and make arguments in support of his application for the visa.  At those hearings, the Applicant provided the Tribunal with a letter from the Church of Jesus Christ of Latter Day Saints; an Aaronic priesthood certificate; and an Melchizedek priesthood ordination certificate.

2. By decision dated 31 August, the Tribunal affirmed the delegate’s decision.  In a carefully considered Statement of Decision and Reasons (‘the Decision Record’) the Tribunal made the following observations and findings as accurately and succinctly set out by the First Respondent in the First Respondent’s written submissions of 20 July 2018. 

3. Those Tribunal findings were as follows:-

   a)the Tribunal accepted a number of the Applicant’s claims, but noted its significant reservations regarding the credibility of other claims made by the Applicant;

   b)the Tribunal accepted a number of the Applicant’s claims regarding his conversion from Hinduism to Christianity and Mormonism.  Among other things, the Tribunal accepted that the Applicant had been baptised, that he regularly attends Sunday services, and that he was accepted into the Aaronic and Melchizedek priesthoods;

   c)the Tribunal accepted that the Applicant no longer became a “believing Hindi” while in India;

   d)the Tribunal found that, while the Applicant had converted to Christianity, his claims regarding specific denominations within Christianity, including Mormonism in particular, were inconsistent, lacked depth and were exaggerated;

   e)the Tribunal noted that it was not able to locate any country information that Mormons had been targeted for harm for religious or political reasons;

   f)the Tribunal did not accept that the Applicant’s uncle threatened him to revert to Hinduism prior to the Applicant’s departure from India in 2009;

   g)the Tribunal referred to recent DFAT information which provided that incidents of violence towards Christians represent a moderate risk of social discrimination and violence, although most Christians can go about their lives without incident.  The Tribunal noted that there were approximately 350,000 Christians in Punjab and approximately 24 million Christians in India.  The Tribunal found that there is less than a remote chance of persecution towards Christians in Punjab, and that peaceful co-existence is the norm;

   h)the Tribunal observed that the Applicant’s evidence during the hearing that he feared returning to India due to an outstanding warrant, which was unconnected with his religion, indicated that the Applicant did not have a personally held fear of returning to India for fear of religious persecution;

   i)the Tribunal found the Applicant would not regularly attend Mormon or other Christian services upon return to India so as to attract the attention of Hindu extremists, but would limit himself to religious activities consistent with his involvement in the church in India in the past;

   j)the Tribunal found the Applicant is not a high-profile Mormon who has a real chance of serious harm or a real risk of significant harm arising from this fact alone;

   k)the Tribunal stated that it placed “considerable weight” on the overall country information that most Christians in India carry on with their lives without incident;

   l)the Tribunal found that the Applicant will not face a real chance of serious harm, including systemic discrimination, due to his religious memberships and beliefs;

Allegations of past harm

m)the Tribunal accepted the Applicant had been disinherited by his mother as a result of a property dispute within his family;

n)the Tribunal accepted that the Applicant was accused of an offence relating to cheating and dishonesty inducing the delivery of property, and that a subsequent warrant was issued for his arrest;

o)the Tribunal found that the Applicant had fabricated his claim that a second offence and court order was lodged against him by his relatives based on a land dispute;

p)the Tribunal concluded that, due to inconsistent evidence, the Applicant was not threatened or harmed either in India prior to his departure, in 2010 in India during his return trip, or threatened by his uncle and cousins since being in Australia in 2010;

q)the Tribunal found that the disinheritance of the Applicant, and being ostracised by his mother, would not lead to the Applicant facing a real chance of harm amounting to serious harm should he return to India; 

Delay in applying for the visa

r)given the Tribunal’s various credibility concerns, the Tribunal was not persuaded with any of the Applicant’s explanations regarding why there was a delay in applying for the visa;

s)the Tribunal referred to the Applicant’s evidence that he thought he had been married in 2008, when the extract of the marriage register established that the date was in fact 10 August 2007, and found that the marriage was not a genuine spousal relationship.  In arriving at this conclusion, the Tribunal relied on its earlier credibility findings;

t)the Tribunal found that the marriage was a contrivance for migration purposes.  As such, the Tribunal concluded that as there was no genuine commitment between the couple on their arrival to Australia, the Applicant did not have personally held fears in returning to India based on relationship grounds;

u)the Tribunal found it inconsistent and doubtful that the Applicant’s wife only faced pressure to divorce once the parties had arrived in Australia.  The Tribunal also pointed out the short amount of time the Applicant and his former wife spent together while in Australia before separating. Together with the Tribunal’s credibility concerns, these findings further supported the Tribunal’s view that the Applicant was not in a genuine spousal relationship;

The outstanding warrant and harm in prosecution and punishment

v)The Tribunal accepted the Applicant had an outstanding warrant for his arrest relating to property and deception offences, but found that any punishment the Applicant may face would be unrelated to a Convention reason;

w)the Tribunal noted that the Applicant’s sisters would be available to assist him with bail;

x)the Tribunal found the Applicant would only face a fine or imprisonment on return to India as a result of the nonselective enforcement of a law of general application, and that this would not amount to persecution under s.91R(1)(c) of the Act;

Complementary protection

y)for substantially similar reasons to those relied upon in answer to the Applicant’s claims under the Convention, the Tribunal found that the Applicant did not satisfy the complementary protection criteria.

1. The Tribunal was entitled to consider the Applicant’s visa history, noting, in paragraph 123 of the Decision Record, that it was legitimate to take into account the Applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the Applicant’s claimed fear of persecution.[2]

   [2] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347.

2. The Tribunal, in its Decision Record, in relation to this consideration, said in particular, at paragraphs 124 and 125, the following:-

   “124. The applicant arrived in Australia in April 2009 as secondary applicant but did not apply for class XA protection visa until April 2014.  The Tribunal notes the applicant applied for a skilled graduate visa in February 2012 which was refused on the grounds the applicant submitted fraudulent documents.  It also notes the applicant remained in Australia as an unlawful non-citizen between November 2013 and his lodgement for a protection visa.  At the time of application for a protection visa the applicant was a Pentecostal Christian; he became an Aaronic priest in the LDS Church after this applicant [sic] was refused in October 2014.  The Tribunal enquired into the reasons the applicant delayed his protection visa application since arrival:  The applicant claimed he did not realise his life was in such serious danger until he returned to India for his father’s funeral in 2010, and that he was [sic] sought help from an agent to apply for a student visa although he had actually applied for a skilled graduate visa in 2012 and only found out at a later point in time that the agent had been acting fraudulently.  The Tribunal put it to the applicant that he signed off the application and nominated a particular skills or profession;  the applicant acknowledged he signed off.  It was also put to the applicant that he had not graduated in a diploma of hospitality at the time of applying for a 485 visa, and by signing the relevant forms may indicate to the Tribunal the applicant was involved or complicity in the fraud; the applicant insisted the agent acted without his knowledge. According to the applicant, another migration agent was employed to assist with appealing the refusal decision of the skilled graduate visa but the agent did not tell me about protection visas to explain his circumstances.  The applicant claimed he was only aware about protection visas when a friend informed him about protection visa very soon prior to his application.  The applicant further explained that his English was not strong.  As it was put to the applicant in the first hearing it is difficult to believe that the applicant was unaware of protection visas as a well-educated person, who can speak and read English and can understand complicated matters, including migration matter. The Tribunal also notes, the applicant did not use an accredited interpreter during the second hearing indicating the applicant’s relatively [sic] confidence and strength in English.  It is not plausible the applicant used to [sic] at least two migration agents for advice and assistance regarding his migration status given he claimed to have explained to them his circumstances.  The applicant claimed agents and/or lawyers only want to take his money and make things complicated for him and so concealed protection visas as a migration option for him, yet the applicant admitted he did not make an anonymous complaint to the relevant authority.  It is also stretching credulity that the applicant was unaware that he was ineligible for a skilled graduate visa and that he was unaware that he signed off an application which included a falsified qualification.  For these combined reasons and in the context of the Tribunal’s considerable credibility concerns regarding the applicant as a reliable witness, it does not accept any of the applicant’s explanations for the delay in applying for Australia’s protection obligations as credible.

   125. At the hearing, the Tribunal stressed several times to the applicant that if he had a genuine fear of harm, he could have lodged a protection visa with the department considerably earlier.  The applicant had many opportunities to withdraw his appeal to the Tribunal, differently constituted, in favour of a protection visa.  After his appeal, he spent many months as being an unlawful non-citizen before applying for protection.  Had the applicant had a genuine sense of urgency arising out of his claimed circumstances, the Tribunal considers that the applicant would have sought to lodge a protection visa application considerably earlier, and the delay leads to further considerations that his claims in this regard are not genuine.  Given the abovementioned credibility findings regarding the applicant’s evidence about his protection visa, the Tribunal finds that the applicant does not for any genuine personally-held fears of harm that Australia owes him protection obligations and finds that he was motivated to apply for protection as his migration options to lawfully remain in Australia had considerably narrowed.”

Consideration

1. The Tribunal considered each and every of the claims put before it by the Applicant. On the evidence before it, it was open to the Tribunal to find that the Applicant did not meet the refugee criterion in s.36(2)(a) of the Act, and nor did the Applicant meet the complementary protection criterion in s.36(2)(aa) of the Act.

2. The Tribunal correctly understood the Applicant’s claims and evidence, and gave the Applicant the benefit of two hearings, with over nine months between those hearings.  The Tribunal’s findings in respect of the Applicant’s various claims were open to it on the evidence that was before it.  The Tribunal’s findings regarding the prospect of harm to the Applicant by reason of his religious activities derive mostly from the independent country information which was before the Tribunal, and was information which the Tribunal gave considerable weight to.  There was nothing illogical in the reasoning process of the Tribunal, nor in the findings ultimately made as a consequence of that thoughtful reasoning process.  The questioning of the Applicant by the Tribunal, and thereby the testing by the Tribunal of the Applicant’s evidence, was a matter entirely appropriate for the Tribunal, as was the weighing-up exercise undertaken by the Tribunal of the Applicant’s evidence, inconsistent at times, and the other probative material that was before the Tribunal, in particular that as contained in independent country information.

3. The Tribunal was entitled to take into account, and did, the delay in the Applicant making application for a protection visa, and, in its totality, no jurisdictional error attends the decision of the Tribunal.  The application cannot succeed, and accordingly is dismissed, with a costs order to follow.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 17 October 2018