CWY16 v Minister for Immigration

[2019] FCCA 1419

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWY16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1419

Catchwords:
MIGRATION – Judicial review – whether the Tribunal’s decision is affected by error – whether the Tribunal denied procedural fairness – adverse findings by the Tribunal – whether the First Applicant forged or fabricated documents.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a) and (aa).

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] 212 FCR 235.

SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331.

First Applicant: CWY16

Second Applicant: CXE16

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2162 of 2016

Judgment of: Judge McNab

Hearing date: 22 May 2019

Date of Last Submission: 22 May 2019

Delivered at: Melbourne

Delivered on: 2 July 2019

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondents: Ms Buhary

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed on 6 October 2016 be dismissed.

2. The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $5,219.

3. The title of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2162 of 2016

CWY16

First Applicant

CXE16

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 6 October 2016 the Applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 16 September 2016. The Tribunal affirmed a decision by a delegate (‘the Delegate’) of the First Respondent (‘the Minister’) not to grant the First and Second Applicants a Protection (Class XA, subclass 866) visa (‘the visa’).

2. The Applicant's grounds of application are:

   1. The decision of the Tribunal:

   (a) is affected by an error of law; and

   (b) denied the Applicant procedural fairness.

   2. I have made an application for assistance through Victorian legal aid and am waiting for a decision.

Background

1. The First Applicant is a citizen of India born on 1 December 1962. His wife is the Second Applicant. She is also a citizen of India, was born on 13 June 1967.

First Applicant’s previous applications

1. The First Applicant lodged a protection visa application on 14 May 2009 with the Second Applicant included as a dependent.

2. This application was refused by the Delegate on 3 August 2009. The First Applicant appealed the decision to the Refugee Review Tribunal, then to the Federal Circuit Court and subsequently to the Federal Court. The appeal was dismissed as incompetent.

3. The First Applicant sought special leave to appeal to the High Court, which was abandoned on 19 July 2010 for failure to comply with the requirements of the High Court rules. On 24 March 2011 the Applicant sought reinstatement of the special leave application which the High Court refused on 28 April 2011.

First Applicant’s current application

1. On about 14 April 2014 the First Applicant lodged a second protection visa application. This, again, included his wife as a dependent (being the Second Applicant). This application is the subject of this review.

2. The First Applicant’s claims for protection in his visa application is that he fears harm from a former customer of the business he was working for. The First Applicant alleges this former customer threatened to kill the First Applicant for exposing fraud. He also fears harm form a former employer who had forced him to commit tax fraud.

3. The Delegate advised the First Applicant on 23 April 2014 that he could request to attend an interview. This offer was not taken up by the First Applicant.

4. The Delegate refused the application one year later on 23 April 2015. The delegate found the Applicant's claims to be ‘extremely vague and have not been substantiated’.[1] The Delegate concluded that the claims were not credible and that the applicants were not owed protection.

   [1] Court book page 62.

5. The First Applicant sought review of this decision, lodging his appeal to the Tribunal on 12 May 2015.

6. The applicants were invited to attend a hearing before the Tribunal on 16 October 2015. The applicants notified the Tribunal that the First Applicant could not attend due to ‘back issues’ on 21 September 2015. On 22 September 2015 the First Applicant provided a completed hearing invitation form and attached a medical certificate.

7. The Tribunal advised the applicants that the hearing would not be postponed, but that it could occur via videoconference. The applicants accepted this offer, providing another completed hearing invitation form on 14 October 2015.

8. The applicants attended the hearing by videoconference from the Mildura Magistrate’s Court on 16 October 2015. The applicants were given until 21 November 2015 to provide further information in support of the application.

9. These documents were provided on 29 October 2015.

10. On 16 September 2016 the Tribunal affirmed the Delegate’s decision to refuse to grant a visa. This decision is now under review.

The decision of the Tribunal

1. The Tribunal’s decision record refers to the effect of the decision of SZGIZ v Minister for Immigration and Citizenship [2013] 212 FCR 235 (‘SZGIZ’).[2] SZGIZ recognises that an applicant may apply for a further protection visa based on criterion that does not form the basis of the previous unsuccessful application for a protection visa. It is this authority that has enabled the First Applicant to make a second application.

   [2] Tribunal’s decision record, 16 September 2016 [9]-[12].

2. The Tribunal considered Australia’s complementary obligations, stating:

   If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).[3]

   [3] Ibid [13].

3. The Tribunal referred to previous claims made by the applicants.[4] These claims arise from these events (quoted as is):[5]

   the first applicant claims he was an accountant by profession and he worked in a cement depot. One of the customers of that cement depot was a man by the name of Mr Salim,[6] who is affiliated with [the] Congress Party. Mr Salim forged a receipt and threatened to kill him.

   The first applicant claims his employer did not report the incident to the police in concern that it would cause further trouble and further claims Mr Salim threatened to kill him and his family because he discovered the forged receipt and reported it to management

   The first applicant states “on two occasions Salim Bhai’s thugs almost managed to get (him)” and claimed Mr Salim accused him of the downfall of his business and politics for which Mr Salim is looking for revenge.

   [4] Ibid [34]-[47].

   [5] Ibid [36]-[38].

   [6] It is unclear from the Tribunal’s decision whether Mr Salim also goes by Mr Asalim (who is mentioned later).

4. The First Applicant made further claims that since leaving India, ‘Mr Salim’s people went to [my] home many times since [I] fled’.[7]: As a consequence of this, ‘his children had to relocate in India to hide and the applicant states he knows if he returns to India he will be killed’.[8]

   [7] Tribunal’s decision record, 16 September 2016 [39].

   [8] Ibid [40].

5. The Tribunal canvassed the oral evidence given by both applicants at [48]-[65] of the decision record.

6. Post hearing, the applicants were provided with an opportunity to provide further evidence of their claims. The Tribunal noted the evidence that was provided at [66]-[67] of the decision record, and gave consideration to that evidence at [68]-[70] of the decision record.

7. The Tribunal ultimately found that it had ‘significant credibility concerns about the applicant’s testimony which are of central importance to the Tribunal’s assessment of the applicants’ claims for Australia’s protection obligations’.[9]

   [9] Ibid [81].

8. The Tribunal made an adverse finding on the First Applicant’s claims as to the truthfulness of a reference letter he provided in his application. The First Applicant alleged that this letter was a reference from his former employer. The Tribunal determined that the letter was a forgery.[10] The Tribunal made this finding on the basis that it was apparent there were ‘clearly different shades of white that are visible to the eye, indicating that the text and signature on the document were superimposed over the original text and signature with white correction fluid’.[11]

   [10] Ibid [83].

   [11] Ibid [83].

9. In providing the Tribunal with a fraudulent document, the Tribunal stated it was ‘invited […] to consider whether the other claims and oral evidence have been fabricated or other documents submitted were fraudulent’.[12]

   [12] Ibid [86].

10. The Tribunal then considered country information supplied by the Department of Foreign Affairs and Trade (‘DFAT’) which, as the Tribunal summarises, ‘states that […] a range of sources suggest that the manufacture and use of fraudulent documents is prevalent in India, including for migration purposes’.[13] The Tribunal had particular concern regarding the authenticity of, amongst other things, the dental appointment on 10 August 2008, a copy of a police complaint on 6 July 2013 and the handwritten note made by the daughter.

    [13] Ibid [87].

11. As a result of the concerns the Tribunal had regarding the possibility that the documents were forged (being the police complaint and the written note) and the applicants’ inconsistent evidence as to their daughter being ‘threatened, missing or kidnapped, attempted or otherwise’, the Tribunal found the claims to be a fabrication.[14]

    [14] Ibid [89].

12. The Tribunal considered claims that the First Applicant had been beaten at his work and had his front teeth broken.[15] The Tribunal had been provided with a copy of a dentist’s record dated 10 August 2008 which noted the First Applicant had a root canal.

    [15] Ibid [91].

13. The Tribunal noted that dentist’s letter did not mention working on the First Applicant’s broken front teeth: decision record [91]. This was relevant to his claim that he was beaten, had his teeth broken and attended the dentist to have them repaired.

14. The Tribunal noted that because the First Applicant had ‘blatantly and clumsily submitted a fraudulent reference letter from the applicant’s former employer, the Tribunal finds that the first applicant also fabricated the specific claim that he was attacked by Mr Asalim or by anyone associated by him in August 2008’.[16]

    [16] Ibid [91].

15. The Tribunal concludes at [92] and [93] of the decision record:

    In the context of its overwhelming adverse credibility findings that the applicants have fabricated other specific claims for protection, the Tribunal finds that there were no physical attacks on any of the applicants, threatening calls to the applicants prior to their departure and ongoing threatening calls to the applicants’ family members residing in Ahmedabad as claimed by the applicants. In summary, the Tribunal does not accept that any of the applicants were threatened or harmed in the past for the claimed reasons.

    Accordingly, the Tribunal finds that there are no substantial reasons for it to believe that the applicants face a real risk of significant harm of any kind as a necessary and foreseeable consequence of being removed from Australia for anywhere in India as the Tribunal finds little credible documentary, written or oral evidence to support the applicants’ claims arising from an organised criminal in Ahmedabad in the Indian state of Gujarat or anywhere in India who wants to harm the first or second applicant for the claimed reasons.

16. The Tribunal reiterates this position at [97] of the decision record when discussing – particularly the First Applicant’s – credibility:

    there is no substantial reasons for believing that the applicants, as a necessary and foreseeable consequence of being removed from Australia for India and returning to their home area of Ahmedabad, face any significant harm of any kind arising from any Muslim businessman with or without connection to both Indian congress Party, the BJP or any political party or movement motivated for any claimed reason or connections with criminals, organised or otherwise, for any of the claimed reasons.

17. Having found that the First Applicant’s position was terminated (contrary to what was stated in his fabricated reference letter), the Tribunal considered whether the First Applicant would face a real risk of significant harm due to his dismissal from his work.[17]

    [17] Ibid [99]-[104].

18. The Tribunal found the First Applicant would not face such a risk. The Tribunal noted that a significant period had passed since the date of his dismissal and that no action had been taken against the First Applicant in respect of malfeasance or tax fraud.[18]

    [18] Ibid [100].

Hearing before this court

1. The First Applicant appeared before the Court without representation and with the assistance of an interpreter. He appeared on behalf of the Second Applicant.

2. He made submissions that the documents he had submitted were not false, and the Tribunal was wrong in finding that they were.

3. He also submitted that the Tribunal's findings in relation to his dentistry records were incorrectly reasoned. He alleged that the beating did break his front teeth and that the beating also caused him to need root canal treatment.

4. The First Applicant also sought an adjournment of the proceeding so he could engage a lawyer. He stated his situation has changed since he made this application on 6 October 2016. He claimed he has recently befriended people who are able to assist him paying for legal representation.

5. He also asked the court whether it was possible for the Court to make orders giving him work rights so that he might fund his legal fees.

6. The Court considered and refused both applications. The application to adjourn to allow the applicants to seek legal representation was refused on the basis that the application was filed on 6 October 2016. The delay between filing and the final hearing has been extensive and has provided the applicants with an adequate opportunity to obtain legal representation.

7. The application to reinstate work rights was refused as the Court does not have the power to make orders in relation to his work rights. This was explained to the First Applicant.

Consideration

1. I am of the view there is no jurisdictional error apparent in the Tribunal’s decision. There does not appear to be any failure to accord procedural fairness nor is there any jurisdictional error apparent.

2. The Tribunal:

   a)set out the relevant legal framework against which it made its decision;

   b)considered both the written and oral claims made by the applicants both before, during, and after the hearing;

   c)dealt with the claims in a comprehensive way; and

   d)made credibility findings which are neither unreasonable or illogical having regard to the matters referred to in its decision.

3. The Court accepts that findings in relation to credibility are not immune from judicial review. However, in this case, there is no apparent illogicality or unreasonableness in the manner in which the Tribunal has approached its task in assessing the credibility of the applicants: see SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331 at [24]-[25].[19]

   [19] SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331 at [24]-[25] (Greenwood J)

4. The findings in relation to the dental records formed part of a number of separate findings regarding the First Applicant’s credibility. The Tribunal was entitled to find that the dentist’s letter of 10 August 2010 that refers to a root canal (and not to any other dental work) did not relate to the treatment of two broken teeth. That finding does not strike me as being illogical or unreasonable in the absence of evidence submitted on behalf of the Applicant explaining the record.

5. There is no apparent failure to accord procedural fairness and the First Applicant did not point to anything which would suggest there was any failure to give the applicants fair hearing before the Tribunal.

Conclusion

1. For these reasons the application is dismissed

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 2 July 2019