CVD19 v Minister for Immigration

[2020] FCCA 660

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVD19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 660

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in India – applicant disbelieved – general grounds of review advanced – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36(2)

Cases cited:

AAJ17 v Minister for Immigration [2018] FCA 205

Abebe v Commonwealth (1999) 197 CLR 510

Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Immigration v SZIAI (2009) 83 ALJR 1123

MZZGB v Minister for Immigration [2014] FCA 1052

Applicant: CVD19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1834 of 2019

Judgment of: Judge Driver

Hearing date: 1 April 2020

Delivered at: Sydney

Delivered on: 1 April 2020

REPRESENTATION

The Applicant appeared in person by telephone

Counsel for the Respondents: Mr N. Swan by telephone

Solicitors for the Respondents: Mills Oakley by telephone

ORDERS

1. The application filed on 19 July 2019 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1834 of 2019

CVD19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 25 June 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 17 March 2020. 

Background and applicant’s claims

1. The applicant is a citizen of India born in May 1984.[1] He first arrived in Australia in May 2015 as the holder of a Business Visitor visa.[2] On 10 August 2015, he applied for a protection visa.[3] In support of his application, the applicant claimed, inter alia, that:

   a)in July 2005, the applicant was engaged in a fight with a Hindu Ikyavedi (HI) activist (Prasad) about the applicant having damaged a HI flag. After the fight, Prasad threatened that HI members would kill the applicant. He was then told by a friend that HI members had weapons, were looking for him, and were throwing stones at his house. The police also came looking for the applicant. Four or five days later, he surrendered to the police and was bailed. The applicant was found innocent of charges laid against him in 2007;

   b)two months later, the applicant was hurt when he was returning from a wedding. Prasad was present and threatened the applicant. The applicant made a complaint to the police, and he suffered difficulties. He then left India;

   c)later in 2008, he returned to India, but was harmed by HI members again. He was not harmed for another two years, but in 2011, Prasad again harmed him and his passport was taken;

   d)the applicant was married in July 2011. After this, he and his brother were again harmed by HI members. He was then living in Mumbai for a period of time and returned to Kerala, where he lived without issue between November 2012 and December 2013. In the new year, the applicant was attacked by Hindu persons. He returned to Mumbai, but was again harmed. He then returned to Kerala in July 2014, but was again attacked by HI and was hospitalised. The applicant then went to Japan, after his wife had given birth. He sought asylum in Japan, but was not allowed to enter the country; and

   e)the applicant then travelled to Australia. After his arrival, the Bharatiya Janata Party (BJP) killed an 8 year old child in Kerala.

   [1] Court Book (CB) 2

   [2] CB 183

   [3] CB 1-35

2. On 21 April 2016, the delegate refused to grant the applicant a protection visa.[4] On 10 May 2016, the applicant sought review of the delegate’s decision by the Tribunal.[5] A hearing took place before the Tribunal on 14 June 2019, at which the applicant was represented by his migration agent.[6] On 25 June 2019, the Tribunal affirmed the delegate’s decision.

   [4] CB 180-197

   [5] CB 199-200

   [6] CB 251-252

The Tribunal’s decision

1. The Tribunal commenced its reasons by summarising the relevant background,[7] the applicant’s claims,[8] and the evidence before it.[9] It also observed that there was a s.438 Migration Act 1958 (Cth) (Migration Act) certificate before it, but that the certificate was not valid and that the documents covered by it were not relevant to the review.[10]

   [7] CB 293 [11]-[17]

   [8] CB 292-293 [8]-[10]

   [9] CB 293-295 [18]-[20]

   [10] CB 295-296 [21]-[22]

2. The Tribunal held concerns about the applicant’s claims and evidence which “raise[d] serious doubts about his credibility”.[11] It was not satisfied that he gave a “full and frank” account of his activities in Kerala.[12] The Tribunal found that his account of the harm he suffered from Hindu activists was “improvised…and lacking credibility”.[13] The Tribunal also considered that the applicant’s conduct and experiences after 2007 raised credibility concerns.[14] The Tribunal explained that it had “significant doubts” about the truthfulness of the applicant’s claims and his need for protection.[15]

   [11] CB 296 [26]

   [12] CB 296 [27]

   [13] CB 297 [28]

   [14] CB 297 [30]

   [15] CB 298 [35]

3. The Tribunal did not accept that the applicant was involved in the 2005 flag incident, or that he or his family were subject to threats and violence as a result.[16] It did not accept that the applicant was subject to threats or intimidation from Prasad, or other Hindus, from July 2004 to March 2007.[17] It accepted that the applicant had been charged with inciting unrest in 2005, but found that he was acquitted in 2007 when the key witness stated that it was a case of mistaken identity.[18]

   [16] CB 300 [43]; 302 [56]

   [17] CB 301 [50]

   [18] CB 302 [56]

4. In light of credibility concerns it held about the applicant’s claims, the Tribunal did not accept that Prasad had stopped the applicant shortly after his acquittal, physically harmed the applicant and had taken his passport and documents. It also did not accept that the applicant reported this incident to the police, or that Prasad caused the applicant difficulties before he left for Malaysia and South Korea. It further did not accept that the applicant travelled to Malaysia and South Korea in response to any genuine fear of harm.[19] In relation to the applicant’s claim to have been harmed in July 2008, the Tribunal did not accept that this had occurred, and did not accept that Prasad, or anyone connected to him, had an adverse interest in the applicant at this time.[20]

   [19] CB 304 [64]-[67]

   [20] CB 305 [72]

5. The Tribunal did not accept that, in May 2011, Hindu activists pulled the applicant and his brother over, assaulted them, and stole their passports.[21] It did not accept that HI members broke the applicant’s car windows in July 2011,[22] or that his move to Mumbai, in 2012, was because he feared harm from HI in Kerala.[23] It further did not accept that the applicant had been assaulted in Kerala in July 2014.[24]

   [21] CB 306 [77]-[78]

   [22] CB 306 [79]-[80]

   [23] CB 307 [82]

   [24] CB 309 [94]

6. The Tribunal summarised its findings at [99]-[103]. It explained that it had accepted the applicant’s claim to be Muslim and to have faced criminal charges in 2007 for inciting unrest, but that it had concluded that the charges were a case of mistaken identity, with no further consequences. The Tribunal rejected all the applicant’s other claims of past harm, and also did not accept that, since he had arrived in Australia, BJP party members in India had been looking for him.[25]

   [25] CB 310 [100]-[103]

7. The Tribunal concluded that the applicant did not face a real chance of serious harm from his 2007 trial and acquittal. It also found that the applicant was not of any adverse interest to Prasad or Hindu activists, including after 2007.[26] It accepted that the applicant may have suffered in the past some degree of discrimination as a Muslim in India but did not accept that this amounted to persecution.[27]

   [26] CB 311 [106]-[107]

   [27] CB 311 [108]

8. The Tribunal concluded that the applicant did not satisfy s.36(2)(a) of the Migration Act.[28] In reliance on its earlier findings, the Tribunal also did not accept that the applicant met s.36(2)(aa) of the Migration Act.[29] The Tribunal thus affirmed the delegate’s decision.

   [28] CB 312 [114]

   [29] CB 312-313 [115]-[117]

9. This matter began with a show cause application filed on 17 July 2019.  The applicant continues to rely on that application.  There are three un-particularised grounds in it which I incorporate in this judgment. 

   1. The Tribunal constructively failed to exercise its jurisdiction

   2. Adverse credibility finding

   3. The Tribunal had failed to investigate the claim.

10. The application was accompanied by an affidavit filed with it which repeats the grounds of review.  I receive the affidavit as a submission.  I have before me as evidence the court book lodged on 19 September 2019.  A registrar made procedural orders in this case on 15 August 2019.  The matter was listed for a show cause hearing on 29 January 2020.  However, on 11 October 2019 I amended those orders by consent, listing the matter for a final hearing today.  I invited oral submissions from the applicant this morning.  He disagreed with the Tribunal’s adverse credibility findings.  He asserted the truth of his claims of past harm.  Those submissions, however, went only to the merits of the Tribunal decision. 

11. The Minister’s submissions adequately deal with the applicant’s grounds of review.  I agree with those submissions. 

Ground 1

1. This ground alleges that the “Tribunal constructively failed to exercise its jurisdiction”. Presumably, the applicant alleges that the Tribunal did so because it made a jurisdictional error. However, no particulars, or other explanation of the alleged error(s) by the Tribunal, have been provided. In the absence of any such explanation, the ground is meaningless. It appears to be no more than an expression of the applicant’s disagreement with the Tribunal’s decision which does not establish jurisdictional error.

Ground 2

1. This ground states “adverse credibility findings”. Again, no particulars are stated. It is readily apparent, from a fair reading of the Tribunal’s decision, that the Tribunal did not find the applicant to be a credible witness.[30] There is, however, nothing impermissible in the Tribunal rejecting a review applicant’s claims on the basis that he or she is not credible. The Tribunal is not required to accept uncritically any and all claims made by a review applicant or possess rebutting evidence before holding that a claim is not made out.[31] In the present case, the Tribunal gave a detailed, cogent and rational explanation for why it did not accept the applicant to be a credible witness. Its conclusions were ones that a rational and logical Tribunal could have reached on the available material.[32] No jurisdictional error is established in relation to the Tribunal’s credit findings. This ground, too, appears ultimately only to be an expression of the applicant’s factual disagreement with the Tribunal’s credit findings thereby inviting merits review.

   [30] See CB 269 [26] and CB 310 [99]-[103]

   [31] see AAJ17 v Minister for Immigration [2018] FCA 205 at [24] and the cases there cited

   [32] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131] and [135] per Crennan and Bell JJ

Ground 3

1. This ground has alleged that the Tribunal “has failed to investigate the claim”. Again, this ground is un-particularised. However, insofar as the ground suggests that the Tribunal has some general freestanding obligation to “investigate” or inquire into the applicant’s claims or circumstances that is not correct. It is for the review applicant to advance the necessary evidence to make out his or her claims.[33] In Minister for Immigration v SZIAI, [34] the High Court stated that “it may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”. The kind of jurisdictional error discussed as a possibility in SZIAI cannot be made out unless all of the qualifications referred to at [25] of SZIAI are made. That will only ever be in a “rare and exceptional case”.[35] Here, the applicant does not point to any “obvious inquiry”, “critical facts”, or show that it is “easily ascertainable”. None is apparent on the face of the Tribunal’s decision. No jurisdictional error by reason of a failure to inquire is established.

   [33] cf. e.g. Abebe v Commonwealth (1999) 197 CLR 510 at [187]

   [34] [2009] HCA 39; (2009) 83 ALJR 1123 at [25]

   [35] see MZZGB v Minister for Immigration [2014] FCA 1052 at [63] per White J

2. I note that at [21] and [22] of its decision, the Tribunal deals with a purported non-disclosure certificate.  On the basis of the Tribunal’s discussion of the certificate I agree that it was correct to treat the certificate as invalid.  I have not seen the document purportedly covered by the certificate, but I have no reason to doubt the Tribunal’s conclusion that no relevant material was covered by the certificate. 

3. I conclude that the applicant is unable to establish that the decision of the Tribunal is affected by any jurisdictional error. 

4. The decision is, therefore, a privative clause decision and the application must be dismissed.  I will so order.

5. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The Minister seeks a fixed cost order in the sum of $5,400.  That is substantially below scale.  The applicant did not wish to be heard on costs. I will so order.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  3 April 2020