CTU15 v Minister for Immigration

[2017] FCCA 1413

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTU15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1413

Catchwords:
MIGRATION – Application for judicial review – protection application – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Cases cited:

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114

First Applicant: CTU15

Second Applicant: CTV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2845 of 2015

Judgment of: Judge Riethmuller

Hearing date: 11 April 2017

Date of Last Submission: 11 April 2017

Delivered at: Melbourne

Delivered on: 23 June 2017

REPRESENTATION

The Applicants appeared In Person

Counsel for the First Respondent: Mr Hosking

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2845 of 2015

CTU15

First Applicant

CTV15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the “Tribunal”) on 20 November 2015 to affirm the decision of a delegate of the First Respondent not to grant the applicants Protection (Class XA) visas.

2. The applicants are citizens of India who arrived in Australia on

   
   

   30 November 2008 as holders of student visas.  CTU15, the applicant husband, and CTV15, the applicant wife, have a daughter who lives in India.  On 19 September 2014, the applicants applied for the Protection visas.  On 6 February 2015, a delegate of the First Respondent refused to grant the applicants visas.

3. On 26 February 2015, the applicants applied to the Tribunal for review of the delegate’s decision.

4. On 27 August 2015, the applicants appeared before the Tribunal to give evidence and present arguments with the assistance of a Hindi interpreter.  On 20 November 2015, the Tribunal affirmed the delegate’s decision not to grant the applicants visas.

The Applicants’ Claims before the Tribunal

1. The substance of the applicants’ case relates to their fear of serious harm arising from their involvement with the Dera Sacha Sauda (DSS).  At the Tribunal hearing, the applicants gave evidence separately.

2. The Tribunal summarises the applicant husband’s protection claims as follows:

   20.  [CTU15] has made the following protection claims in his original protection visa application:

   He is a supporter of the Dera Sacha Sauda.  He claims to be a ring leader in 2006-2007 clashes with Sikhs.

   In 2007 Haryana police beat him and burnt his body with hot iron rods and harassed him in the police station under pressure from Sikhs.

   He claims to have been ‘noticed’ by Sikhs and he may be killed which would increase Sikh votes in Haryana elections.

   The applicant fears the Sikh community and Akali Leaders

   The applicant fears he cannot be protected because he is not rich or politically powerful.

3. The Tribunal summaries the applicant wife’s evidence as follows:

   78.  She claims to fear for herself and also her husband.  She claimed she fears more for herself.  She explained that she fears returning because she has lived in Australia for 7 years and it is safe.  Her community said its ok for her to return but not her husband.  She fears being single if her husband is killed because in Hindu culture she is nothing without her husband.  She claims to be afraid of various Sikh groups who are targeting her and her husband because he supports the Guru and the DSS.  She claims there are fifty branches in different states.

4. The Tribunal questioned the applicants in relation to their versions of the events that occurred in India and identified several inconsistencies between the applicant husband and the applicant wife, and between the applicants’ initial claims in their visa application and what was stated at the Tribunal hearing.

Tribunal’s Findings

1. The Tribunal found that they key issues pertaining to the applicants’ claims were not credible (at [108] of the Tribunal’s decision).

2. The Tribunal had regard to the applicants’ delay in applying for a protection visa, saying:

   109.  The Tribunal has considered the delay in the applicants making their protection visa application.  Their explanation was that they were unaware of this visa.  However, the Tribunal notes that the applicants arrived in Australia in 2008 and this application was made six years later.  The primary applicant confirmed at hearing that his friend told him about options to move to Canada or Australia, the Tribunal considers that the Applicant was therefore aware that Australia offered a range of visa options and given the length of time the applicants were in Australia, they would have had ample time to investigate further options.  The Tribunal does not accept that the applicant took six years to become aware of his rights to apply for protection.  The Tribunal notes that the applicants are educated people who have successfully managed their own immigration applications to date.  The Tribunal finds that the applicants are not credible witnesses.

3. The Tribunal made further adverse credibility findings in relation to the applicants’ inconsistent evidence about their involvement with the DSS (see [110] – [112]), as well as the inconsistencies between the applicants’ initial claims for protection and what was stated at the Tribunal hearing (see [118]).

4. The Tribunal considered the fact that the applicants left their daughter in India, and stated ‘[i]f, as the applicants claim, the primary applicant could be killed on return, the Tribunal considers it highly unlikely that the applicants would leave their child in India to risk harm’ (see [116]).

5. The Tribunal had regard to relevant country information and found that ‘it would be unlikely that the applicant would be targeted because of any association with the DSS by his family or friends’ (see [123]).

6. In relation to the applicant husband’s evidence, the Tribunal ultimately found:

   122.  As the Tribunal has found that the primary applicant’s claims lack credibility, the Tribunal for these reasons does not accept that the applicant was involved in clashes and identified as a DSS supporter or that he was involved in two further attacks as he claimed and that police have asked him to report after the incidents or that local politicians harassed him.

7. In relation to the applicant wife’s evidence, the Tribunal ultimately found:

   130.  The Tribunal asked the secondary applicant about her knowledge of the DSS.  Her answers lacked detail and were general.  She stated that you should not harm people, engage in violence and you must take Gods name in the morning and the evening.  She was unable to provide any detail about the values of the DSS and their work and provided no information on the Guru and had no knowledge of his past.  The Tribunal does not accept that the secondary applicant is a DSS follower.

   131.  The Tribunal has considered the applicant’s claims that she is fearful that her husband will be killed because he is on the hotlist and then she will be a single woman in India and face harm herself.  Given that the Tribunal does not accept the primary applicant is on the hotlist, the Tribunal does not accept the secondary applicant’s claims that she may be widowed.

8. The Tribunal concluded that the applicants do not face a real risk of significant harm if they returned to India now or in the reasonably foreseeable future, and affirmed the decision of the delegate not to grant the applicants protection visas (see [132] – [136]).

Grounds

1. The applicants raised four grounds in their written application filed on 22 December 2015:

   1.  The decision making power of the Department was not properly exercised and therefore the Department’s decision was not made in accordance with the law and consequently the Tribunal’s decision was also affected.  Thereby the Department made an error of law and in consequence the Tribunal was affected by this error of law.

   2.  The Department failed to take into account relevant considerations and consequently the Tribunal’s decision was also affected by this failure.  The applicant duly submitted both written submission and oral evidence.  The supporting evidence was not properly considered by the Department and the tribunal decision also was affected.  Therefore the tribunal decision should be quashed by this court on jurisdictional error.

   3.  The Department failed to consider the most current available information when considering the question which the law prescribed and failed to engage in an active intellectual process to forces the Applicant’s risk of persecution if he returns to his home country. The applicant raised evidence about his well-founded fear of persecution based on his religious and political ideology.  His evidence shows that if he returned to India he will be killed by Sikhs extremists.  He was famous in Hindu community and engaged in a Hindu group called Dera Saach Saudra (DSS).  This group promotes values of Hindu philosophy and organized for helping poor, disadvantaged people in the community including women and people with disabilities.  He has experienced the harm and he witnessed the attacks occurred in 2007 and 2008.  In 2007 event, 500 people were attached and he was fortunate enough to save his life.  Threats are continuing from Sikhs and Akali Leaders.  The applicant’s fear is not based on mere reasons.  He has real risk of being targeted based on his past involvement with DSS and he states that he is on the “Hot List” for Sikhs.

   4.  The Department’s decision was so unreasonable that no reasonable decision maker could have arrived at it.  The applicant will be killed if he returns and the applicant have no other country to stay except Australia.  He has never returned to India after he arrived in Australia in 2008.  His wife had to travel to India few times alone based on his life threats.  He has a little daughter in India where the applicant has significant reason to travel to his country and he is unable to return on the life threats.  The tribunal and the Department disregard the applicant’s real life threats and arrived at an unreasonable decision.

2. This matter commenced before me on 31 January 2017 where the applicants attended and made submissions.  The main issue in contention was the applicant husband’s claim that the Tribunal, in their decision, failed to consider/make findings in relation to the injuries that he allegedly sustained on his leg as a result of an attack during the clashes in 2007.

3. The matter was adjourned for a copy of the transcript of the Tribunal’s decision to be obtained. On 7 April 2017, a representative of the First Respondent filed an Affidavit annexing the Tribunal’s decision.

4. In substance, the real argument that the applicant had was that the Tribunal did not discuss an injury to his leg that he said he suffered as a result of being attacked during a rally.  In the transcript of the hearing that has been provided (at p.18) the following exchange took place:

   MR KUMAR:  I was present there when they broke my friend’s legs and they told me also that, “You are quite active.”  They had injured my on my leg also.  I have a mark from that injury still.  I can show you that injury.

   MS WESTAWAY:  I don’t need to see that.  Thank you.  Which friend was it that was injured?  Was it the friend that introduced you to the Dera?

5. The reference to an injury also appears at p.20 of the court book, where the applicant said in his application form:

   THE HARYANA POLICE HAVE BEATEN ME, BURNT MY BODY WITH HOT IRON RODS AND HARRASSED ME IN POLICE STATIONS ON PRESSURE OF SIKH COMMUNITY.  I HAVE BEEN BEATEN BY SIKHS IN 2007 DURING CLASH BETWEEN SUPPORTERS OF DERA SACHA SAUDA AND SIKHS.  I HAVE DANGER TO MY LIFE.

6. At p.98 of the court book is a copy of his affidavit sworn in these proceedings, wherein he sets out that the police beat him:

   14. I do not feel safe or have confidence in the willingness or ability of the authorities to protect me from the persecution.  This comes from my real life experience and I have lost my confidence on the authorities.  In 2007, Haryana police beat me and burnt my body with hot iron rods and harassed me in the police station due to the pressure from Sikhs.

7. Significantly, the Tribunal recount that the applicant did suffer an injury and they say at paragraph [70]:

   70. The Tribunal asked the applicant again if he ever experience attacks or threats again as the applicant spoke of only one at the temple.  The applicant stated that two further attacks occurred.  Once occurred where he hurt his leg and a third attack was minor and stones were thrown at him.  The second attached occurred at a small function 20km away from his village. The third attack occurred 15klm away from the second event.

8. The transcript also noted the evidence of the applicant wife, at paragraph [85]:

   85. She was not there when he was attached.  Her husband went to hospital for his leg injury.

9. The Tribunal do not discuss the injury beyond these two references.  The Tribunal do not appear to reject the proposition that the applicant has marks on his leg that would be consistent with having an injury, nor do they reject that at some point he may have suffered an injury to his leg.  The Tribunal instead focused upon the version given by the applicant and the circumstances of his conduct. 

10. Most significantly, the Tribunal note that at the hearing before it the applicant changed his version of events.  The Tribunal recount:

    118. The Tribunal has also given consideration to the fact that the applicant’s claims in the original protection visa application and those given at hearing are not consistent.  For example, details in the visa application was a claim that the primary applicant was beaten and threatened to be cut up and that he was attacked at the police station.  However at the hearing, the primary applicant rejected these claims and stated that they did not happen.  The applicants explanation was that the wife and husband filled in the form and that they must have made a mistake and the primary applicant claimed he was stressed.  These claims which were initially made and then rejected at hearing led the Tribunal to conclude that the applicants are not credible witnesses and that the applicant was not threatened to be cut up or that he was attacked at the police station.

11. Thus, to the extent that the claim related to injuries caused by the police, it had been disavowed by the applicant at the hearing, and quite properly rejected by the Tribunal, as explained in paragraph [118], and as formally rejected in paragraph [121] (second dot point) of their decision. 

12. The injuries could only be potentially corroborative of the claim that at some point he was injured in the way demonstrated as he claimed before the Tribunal.

13. Ordinarily, it would be likely that evidence of an injury, even if not determinative on an issue, would show physical evidence consistent with a version of events given.  However, it must also be borne in mind that minor injuries or marks are commonly the result of life experiences both in the workplace and in sport, and may often add little to the fact-finding process under consideration.  In this case, the fact-finding process focused closely upon the versions of events that the applicant gave.  There is no evidence that the injuries are of such a nature as to indicate how they were caused.

14. The credibility issues were significant.  Firstly, the applicants have a daughter of nine years of age who they left in India.  The applicant said that she stays with relatives in India.  The applicant’s explanation for leaving his daughter in India, when he was so fearful that attacks and harm would occur, is that he was told that there are many struggles in Australia and a friend advised him not to bring his daughter.  As the Tribunal explains:

    116. The Tribunal has also considered the fact that the applicants left their young daughter in India for the duration of their time in Australia.  If, as the applicant’s claim, the primary applicant could be killed on return, the Tribunal considers it highly unlikely that the applicants would leave their child in India to risk harm.  In putting this to the applicants, the Tribunal has considered their response that no one knows of the relationship between the applicants and the child and that “perhaps they do not target children” to lack credibility.  The also stated that they had no family in Australia to help with the child and they may face many struggles.  The Tribunal does not accept the rationale of the applicants given the seriousness of their claims in regards to their fear.  The Tribunal does not accept as credible the primary applicant’s claim that he may be killed if he returned to India based on the fact that they have left their daughter their.

15. Secondly, the applicants’ case was that the applicant wife has travelled back to India on two occasions.  This appears inconsistent with the fear of harm that the applicant has if he was concerned that he or his family would be targeted. 

16. Thirdly, as set out above, the applicants version of events changed significantly, seriously undermining his credibility. 

17. Fourthly, the applicant claimed that he was “spared” in the 2007 attack, but would not be safe next time, which in the context of the case the Tribunal found to be “unrealistic and not credible”: see paragraph [119].

18. Fifthly, the Tribunal noted that the applicants lived in India for a year after the claimed events and were not harmed: see paragraph [117]). 

19. Sixthly, the Tribunal noted that the applicants gave inconsistent versions of events as to the number of times that the applicant husband would attend meetings of the DSS (he saying weekly, and his wife saying once or twice per month):  see paragraphs [110] and [111]. 

20. Finally, the applicant appeared unable to provide any meaningful information about the values of DSS, its history, or why its ideology resonated with him, and nor was he familiar with any negative publicity concerning the guru: see paragraph [113].

21. When reviewing the decision as a whole, it seems that in the particular circumstances of this case that the Tribunal was focused upon the credibility of the applicant’s version of events and his claim to have involvement with the DSS. 

22. The Tribunal proceeded on the assumption that the applicant had a minor injury consistent with the version that he had given (as they noted it was the evidence in both paragraphs [70] and [85]).  The existence of the injury was not rejected.  In the context of this case that matter did not assume significance in their decision-making in light of the numerous significant matters referred to above that told strongly against his credibility and, unsurprisingly, led to the Tribunal rejecting his evidence.

23. Having regard to the overall circumstances of this case and the particular reasoning of the Tribunal, whilst it would have been preferable for the Tribunal to make a specific finding about his injury, and, indeed, view the injury as he offered, I am ultimately not persuaded that it was a piece of evidence of such significance, in the sense discussed in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 or Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 as to result in a finding of jurisdictional error on the part of the Tribunal in this particular case.

24. The applicant also raised three other issues with respect to the Tribunal’s decision.  Firstly, the applicant said that the Tribunal had not recounted that he was advised that he did not need to make a protection visa application when he first came to Australia on a student visa.  A review of the transcript does not indicate that this was said to the Tribunal.  The applicant was not able to point to any statement in the transcript to show that the Tribunal was given this information by him. 

1. In these circumstances, it is not an error of the Tribunal to have failed to refer to that claim as it was never a claim put to the Tribunal.  To the extent that this amounts to one of the applicant’s grounds, it must, therefore, be rejected.

2. The applicant also claimed that his father had told him not to return to India.  Again, a review of the transcript does not disclose any reference by the applicant to his father telling him this, only references to him being told this by his friends.  The decision-maker in the Tribunal decision has had careful regard to these claims, saying:

   40. If he returned to India he fears he will be killed by the group against the Dear Saach Saudra.  He claims they know him and his friend confirmed during a phone call when the applicant stated he was that he was planning to come back he was informed that the situation has arisen again and that there are riots and he should stay in Australia.

   …

   75. The Tribunal asked the applicant if he has returned to India since being in Australia.  The applicant claimed he had planned to go back to meet friends and family 4 years ago but he was told my friends that it would be safer not to return.

   In these circumstances, I find no error on the part of the Tribunal.

3. Thirdly, the applicant said that the Tribunal had failed to have regard to the fact that he had not returned to India for eight years as the result of his fears of harm.  This was discussed in the transcript, relevantly at pp.9.15, 10.27, and 60.05.  However, it was also referred to on numerous occasions in the Tribunal’s decision, notably at paragraphs [30], [35] to [37], [69], [89], and [116].  It is clear that the Tribunal had careful regard to this issue and argument, not only with respect to the evidence before it, but also with respect to the reasoning that the Tribunal gave.

4. For these reasons, I do not find that the applicant can succeed on this argument.

5. I therefore dismiss the application.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 23 June 2017