CSS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1874
•16 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CSS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1874
File number(s): SYG 1773 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 16 August 2021 Catchwords: MIGRATION – Protection (Class XA) (subclass 866) visa – whether the Tribunal fell into jurisdictional error by giving excessive weight to irrelevant material – whether the – whether the Tribunal properly considered evidence in support of the applicants’ claims – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 424AA, Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
Fox v Percy [2003] HCA 22
Kopalapilli v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) HCA 1.
Number of paragraphs: 35 Date of last submission/s: 5 August 2021 Date of hearing: 5 August 2021 Place: Parramatta Solicitor for the Applicants: The Applicant appeared in person assisted by an interpreter Solicitor for the Respondents: Mr Gardner appeared on behalf of the First Respondent. ORDERS
SYG 1773 of 2019 BETWEEN: CSS19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
16 AUGUST 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant to pay the first respondent’s costs fixed in the amount of $5,600.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of India. The applicant first arrived in Australia on 18 September 2008 on a Higher Education Sector (subclass 573) visa. On 20 January 2011, a delegate of the Minister cancelled the applicant’s visa. The applicant sought merits review at the then Migration Review Tribunal (“MRT”). On 28 November 2011, the MRT affirmed the decision to cancel the applicant’s student visa.
The applicant’s bridging visa expired on 4 January 2012. The applicant remained unlawfully in Australia until 17 March 2016, when he lodged an application for a Protection (Class XA) (subclass 866) visa. The applicant claims to fear returning to India as a follower of Dera Sacha Sauda (“DSS”) and the Indian Congress party. On 5 August 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a protection visa.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 18 June 2019, The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal’s decision is both lengthy and detailed in its reasons. The Tribunal’s decision contains numerous footnotes referencing the various pieces of evidence and relevant country information.
After setting out the relevant history, the Tribunal detailed the applicant’s claims and evidence at paragraphs 10 through to 19. The Tribunal notes, at paragraph 17 of its decision, the concerns it had with the applicant’s credibility and his evidence. These concerns were put to the applicant pursuant to s 424AA of the Migration Act 1958 (Cth) (“the Act”).
At paragraph 21 of its decision, the Tribunal accepted that the applicant and his parents were, and continue to be, followers of DSS. The Tribunal accepted that if returned, the applicant will continue to be a follower of DSS, but did not accept that he will be an activist and go out onto the streets to protest or actively support DSS. The Tribunal reasons that the applicant and his parents have not done so previously in India and the applicant has not done so in Australia.
The Tribunal did not accept that the applicant, nor his family, had faced problems in India due to their support for DSS or the Congress party.
Paragraphs 20 through to 37 of the Tribunal’s decision deal with an assessment of the applicant’s credibility and that of his witness. At paragraph 22 of its decision, the Tribunal noted that the applicant, in his Protection visa application, indicated that he did not experience harm prior to leaving India, although, he claimed that his parents and friends did after he left. At the hearing, the applicant claimed that he had been beaten twice by Sikhs in 2007. The Tribunal did not accept the applicant’s claim that he did not read the application before he signed it. The Tribunal determined that the applicant’s inconsistencies were significant.
At paragraphs 23 through to 34 of its decision, the Tribunal highlighted a number of other concerns that indicated that the applicant was not a credible witness. These included the applicant continuing to remain in India for over a month after his visa to enter Australia was granted, whilst residing at the family home until his departure. The Tribunal was also concerned as to the applicant’s delay in applying for a protection visa, of over seven years (including three years after his student visa had lapsed and he remained in Australia unlawfully), which the Tribunal regarded as being inconsistent with his claims to fear harm. The Tribunal also took account of some information that had been consistent and a country information submitted in support of his claims. The Tribunal found that this did not outweigh significant credibility concerns. At paragraph 30, the Tribunal noted that it considered the applicant’s claim of depression and anxiety to the extent that it had altered his mind because of the difficulties faced and this had affected his ability to provide evidence consistently as to his claims. The Tribunal noted there was no independent medical other evidence before the Tribunal as to this affecting his ability to provide evidence consistently or his memory was impaired. The Tribunal did not accept that this fact explained or excused his inconsistent evidence. At paragraph 34, the Tribunal was also concerned the applicant did not wish the Tribunal to continue to make an attempt to contact his cousin as a witness or seek to adjourn the matter or make any other steps to contact him.
Paragraphs 38 through to 61 of the Tribunal’s decision deal with a detailed review of the relevant country information in relation to followers of DSS. This included country information which confirmed that the DSS operates freely throughout India. At paragraph 52 of its decision, the Tribunal concluded, on the basis of the relevant country information, that it did not accept that the applicant would be killed, kidnapped, threatened, harassed, harmed, beaten, picked up by police, have to pay bribes, be intimidated, have his property damaged or will be prevented from following or attending DSS gatherings. In make this finding, the Tribunal noted that it found that the applicant’s family have not been activists and involved in protests in the past, nor will they in the future.
At paragraph 60 of its decision, the Tribunal did not accept that the applicant would face harm as a result of his support for the Congress party. There was a risk of political violence between rival supporters during parliamentary and state elections, especially in states where the results are tightly contested. However, in general, elections in India are peacefully conducted.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are set out in an Initiating Application filed with the Court on 12 July 2019. They are as follows verbatim:
Ground one
The Second Respondent (The Tribunal) made jurisdictional error by giving excessive weight to a consideration of irrelevant material while affirming its decision not to grant the protection visa.
Particulars
(a) At paragraph 22 and 23 the Tribunal erroneously took into account the inconsistency between the information provided on the application for a protection visa particularly when asked "Did you experience harm in that country" to which the applicant ticked no, and the information provided at the Tribunal hearing in which he stated that he had bean beaten twice because of his religious and political beliefs. It is for these reasons that the Tribunal does not accept that the applicant or his family were ever of any interest to the Sikhs, Sikh organisations, ,police or authorities, including being harassed, beaten, punched, repeatedly taken to the police station, having to pay bribed or being harmed on account of their belief in Dera Sacha Sauda (DSS) and support for the Congress party.
(b) Tribunal on Paragraph 30, mention that no independent medical record was provided to prove the medical condition of the applicant which is incorrect, the doctor's medical report was provided at the time of application of RRT to the Tribunal.
Ground Two
The Tribunal committed jurisdictional error by giving inadequate weight to a consideration on likelihood of harm if the applicant returns to India.
Particulars
•The applicant was before the Tribunal to sought to review the decision to refuse the applicant a protection visa.
•At paragraph 31 the Tribunal accepts that some information has been consistent over time including that the applicant fears return as a DSS follower and that his family faced harm after his departure from India.
•A fear of persecution is well-founded if there is a ‘real chance’ of being persecuted. In regards to what constituted a ‘real chance’ Dawson J stated: “ … a fear can be well-founded without any certainty, or even probability, that it will be realised ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent”.
•Similarly, according to McHugh J: “A fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur ... an applicant for refugee status may have well- founded fear of persecution even though there is only a 10 per cent chance that he will be persecuted. Obviously, a far-fetched possibility of persecution must be excluded”.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter in the Punjabi language. Prior to the commencement of the Court hearing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that the first respondent’s written submissions had been interpreted to him. The Court also ensured that the applicant was in possession of a pen and paper so that he could take notes during the course of the hearing should he so wish to.
Due to health restrictions as a result of the COVID-19 pandemic, the hearing was conducted by telephone. At the commencement of the hearing, the Court carefully explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained how the hearing would be conducted.
Despite Court Orders, no written submissions or other material was supplied in support of the applicant’s case. In an Affidavit dated 12 July 2019, the applicant repeated the claim that he was a follower of DSS and the Indian Congress party and feared that he would be persecuted if he returned to India. The applicant told the Court that there were two pieces of evidence that the Tribunal did not consider, being an Affidavit and a medical practitioner’s certificate. Following the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. The applicant stated that he provided all the relevant evidence to the Tribunal and he wished the Court to look at his case again.
THE FIRST RESPONDENT’S SUBMISSIONS
The legal representative for the first respondent stated that there was no such material as referred to by the applicant in his oral submissions. The first respondent submitted that all relevant evidence was before the Tribunal and no evidence was overlooked by it.
Ground one alleges that the Tribunal erred in giving weight to “irrelevant material”. Particular (a) identifies this irrelevant material as the Tribunal’s consideration of inconsistencies in the applicant’s evidence at paragraphs 22 and 23 of its decision. It was submitted that these inconsistencies are one of a number of inconsistencies and concerns recorded by the Tribunal about the applicant’s credibility in paragraphs 22 through to 35 of its decision. The Tribunal considered the applicant’s evidence, both written and orally at the hearing, the applicant’s uncle’s evidence and independent country information before coming to its decision. The Tribunal gave substantial and cogent reasons for rejecting the applicant’s claims. It is submitted that the reasons disclose a proper and unbiased evaluation of the material before it and that there is nothing in the reasoning in relation to the applicant’s credibility that would suggest any error in its overall approach.
To the extent that the applicant wishes to impugn the Tribunal’s adverse credibility findings, the first respondent submitted that these were findings of fact for the Tribunal to determine: see ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) HCA 1 at [67].
Significantly, the Tribunal recorded that it considered the Tribunal’s ‘Guidance on the Assessment of Credibility’ policy document, including allowing for “the possibility of discrepancies arising because of genuine lapses of memory [and] nervousness”, together with cultural differences in making its findings. The Tribunal took into account a number of factors that weighed against its adverse credibility findings, including the applicant’s mental health conditions, the fact that some evidence had been consistent and independent country information provided by him. In these circumstances, the First Respondent submitted that the Tribunal’s credibility findings could not be said to be illogical, irrational or legally unreasonable: see DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [3].
At Particular (b), the applicant complains that the alleged “irrelevant material” was the comment by the Tribunal at paragraph 30 of its decision that there was “no independent medical evidence… provided to prove the medical condition of the applicant”.
The first respondent submitted that the applicant’s characterisation of the Tribunal’s reasons at paragraph 30 of this decision is incorrect. Contrary to the applicant’s complaint, the Tribunal’s reasons at paragraph 30 disclose that it considered the applicant’s claim of depression and anxiety and whether this had affected his ability to provide consistent evidence. However, in the absence of independent medical or other evidence before the Tribunal “as to this affecting his ability to provide evidence consistently or his memory being impaired”, the Tribunal did not accept that the applicant’s mental health conditions explained or excused the concerns which, cumulatively, had led the Tribunal to find that he was not a reliable witness.
It was submitted by the first respondent that the Tribunal was correct to find that there was no evidence before it as to the effect of the applicant’s mental health conditions on his ability to provide consistent evidence. This was a finding that was plainly open to the Tribunal and could not be said to be illogical, irrational or unreasonable.
Ground two alleges that the Tribunal erred in giving “inadequate weight” to its consideration of the likelihood of harm if the applicant were to return to India. In particulars, the applicant notes that the Tribunal’s findings, at paragraph 31 of its decision, which accepted that some of the evidence of the applicant had been consistent over time. It is well settled that the weight that the Tribunal attributes to various pieces of information before it is a matter for the Tribunal: see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [97]. Properly understood, this ground amounts to no more than an emphatic disagreement with the Tribunal’s decision and constitutes an invitation to the Court to engage in impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259 at [6].
CONSIDERATION
It is well-established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]. No jurisdictional error will occur, if the Tribunal’s findings were open to it on the evidence and materials before it and the reasons it gave, including adverse credibility findings. A credit finding is sound if it was “open to the [Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility”: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.
The Court has considered the claim made by the applicant in his oral submissions, and referred to in particular 1(b), that the Tribunal did not consider a medical certificate and an Affidavit.
A search of the Court Book confirms no medical certificate is contained therein, nor any Affidavit. At paragraph 30 of its decision, the Tribunal explicitly considered the applicant’s claim in his application of mental health issues but noted, however, that there was no evidence by way of a medical report before it. At paragraph 8 of its decision, the Tribunal set out, in full, the material that was before it. In these circumstances, the Court is not satisfied that the Tribunal failed to take account of any material that was before it.
In the applicant’s particulars, the applicant makes reference to the medical report being provided to the MRT. The Court notes there have been previous proceedings in relation to the cancellation of the applicant’s student visa. That material was not before the Tribunal, nor should it have been as it does not relate to the applicant’s protection visa application. If the applicant wished to rely upon that material, it should have been provided to the Tribunal as part of his case. It was not. No error arises as a result.
Ground one broadly complains as to the Tribunal’s adverse credit findings. The Tribunal’s adverse findings as to the applicant’s credibility were a matter for it. The Tribunal had the advantage of comparing and contrasting the applicant’s claims in his written protection visa application compared with the oral evidence given at the hearing. That is a significant advantage for the Tribunal as compared to this Court: see Fox v Percy [2003] HCA 22 at [41].
A fair reading of the extensive reasons in the Decision Record indicates that the Tribunal canvassed the applicant’s evidence, then fairly compared and contrasted it to evidence he gave previously in his protection visa application. The Tribunal found that the inconsistencies were significant. This is a finding that was open to the Tribunal. That finding is not subject to any irrationality, illogicality or legal unreasonableness, noting that legal unreasonableness will only occur in rare circumstances and the test for it is stringent : see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [28]. Particular (a) of ground one has no merit.
As pointed out by the first respondent, at paragraph 29 of its decision, the Tribunal specifically noted that it had taken into account the possibility of discrepancies in the applicant’s evidence arising due to a genuine lapses in memory, nervousness and the matter in which the responses can differ depending on the nature and manner in which the question is asked. Notwithstanding, the Tribunal turning its mind to this possibility, and ultimately, the Tribunal was satisfied that the applicant was not a credible witness. In so doing, at paragraph 30 of its decision, the Tribunal also specifically considered the claim that the applicant’s memory was affected through mental health issues. The Tribunal correctly noted, however, that no medical evidence was presented to support the applicant’s claim and quite rightly rejected it. There is nothing illogical, irrational, or legally unreasonable in this finding. Particular (b) has no merit.
Ground two can be fairly described as a claim of general disagreement with the ultimate conclusion of the Tribunal. The Court is satisfied that the Tribunal gave proper consideration to the risk of harm should the applicant be returned to India. In doing so, it considered both the applicant’s evidence and that of his witness, together with a detailed examination of relevant country information that was available to it. The Tribunal noted that the applicant had not claimed initially that he had experienced difficulties prior to his departure, but it was only later that he did so at the hearing. The Tribunal rightly determined, based on the entirety of the evidence, that whilst accepting that the applicant was a supporter of the DSS and the Congress party, country information indicated that he would not face threats such that he was at a real risk of serious harm or real risk of significant harm under the refugee criteria and complimentary protection criteria. These findings were open to the Tribunal on the evidence that was before it and the reasons it gave.
The Court is satisfied that the Tribunal correctly applied the real chance test and found against the applicant. In these circumstances, the complaint of the applicant in ground two is no more than an emphatic disagreement with the outcome and seeks to engage the Court in impermissible merits review. Ground two has no merit.
As the applicant is unrepresented, the Court has carefully perused the Decision Record of the Tribunal but can find no unarticulated jurisdictional error.
CONCLUSION
The application is dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 16 August 2021
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