CYR16 v Minister for Immigration
[2018] FCCA 3371
•15 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CYR16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3371 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a protection visa – applicant asserted that Administrative Appeals Tribunal did not consider all his claims and that its decision was thereby affected by jurisdictional error – Tribunal did consider all claims – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 424AA, 438 |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 CPW16 v Minister for Immigration and Border Protection (2017) FCA 1210 |
| Applicant: | CYR16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2766 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 15 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms N. Laing of Counsel |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 10 October 2016 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,600.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 17 December 2018 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2766 of 2016
| CYR16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant in this proceeding is a male citizen of Indonesia aged 25 years, having been born on 29 November 1992.
By Application filed in this Court on 10 October 2016 he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 14 September 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 24 March 2015 refusing to grant to the Applicant a Protection (Class XA) (subclass 866) visa (Protection visa) under s.65 of the Migration Act 1958 (Cth) (the Act).
Background
The Applicant arrived in Australia on 16 July 2014 as the holder of a Visitor (Class FA) (Subclass 600) visa. He applied for the Protection visa on 10 October 2014.
Claims for Protection
In his Protection visa application, he made the following claims to protection in answer to questions 43, 45, 46, 47, 48 and 49, as follows:
43.Why did you leave that country?
Corruption is a serious problem in Indonesia. I hate those corruptive government officers. They always ask money from us. My parents gave a lot of money for opening their small shop. I saw government officers asked my parents give money to them many times. I attended demonstrations against government corruption many times. I was arrested by police two times because I attended demonstration against the government. In June 2014, I attended a demonstrations against government corruption. Hundreds of people attended the demonstration. Police arrested at least 10 people. I escaped. I know those police want to arrest me. In order to avoid a risk of being jailed, I left out of Indonesia.
45.Have you experienced harm in that country?
Yes. I did experienced harm in Indonesia. Corruption is a serious problem in Indonesia. I hate those corruptive government officers. They always ask money from us. My parents gave a lot of money for opening their small shop. I saw government officers ask my parents to give money to them many times. I attended demonstrations against government corruption many times. I was arrested by police two times because I attended demonstration against government. In June 2014, I attended a demonstrations against government corruption. Hundreds of people attended the demonstration. Police arrested at least 10 people. I escaped. I know those police want to arrest me.
46. What do you feel might happen to you if you go back to that country?
I will be arrested by police if I go back to Indonesia because I attended demonstrations against government corruption.
47.Who do you think may harm/mistreat you if you go back?
Indonesian police and government may arrest me if I go back to Indonesia.
48.Why do you think this will happen to you if you go back?
I think this will happen to me because: corruption is a serious problem in Indonesia. I hate those corruptive government officers. They always ask money from us. My parents gave a lot of money for opening their small shop. I saw government officers ask my parents to give money to them many times. I attended demonstrations against government corruption many times. I was arrested by police two times because I attended demonstration against government. In June 2014, I attended a demonstrations against government corruption. Hundreds of people attended the demonstration. Police arrested at least 10 people. I escaped. I know those police want to arrest me.
49.Do you think the authorities of that country can and will protect you if you go back?
No. Indonesian authorities will arrest me. I hate those corruptive government officers. They always ask money from us. My parents gave a lot of money for opening their small shop. I saw government officers ask my parents to give money to them many times. I attended demonstrations against government corruption many times. I was arrested by police two times because I attended demonstration against government. In June 2014, I attended a demonstrations against government corruption. Hundreds of people attended the demonstration. Police arrested at least 10 people. I escaped. I know those police want to arrest me.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant was invited to an interview with the Delegate on 24 March 2015, but did not attend. The Delegate was, therefore, unable to make findings of fact in relation to the credibility of the Applicant’s claims and was not satisfied that the Applicant satisfied either the Refugees Convention criterion or the complementary protection criterion and accordingly, refused to grant a Protection visa to the Applicant.
Decision of Tribunal
The Applicant applied to the Tribunal for merits review of the decision of the Delegate on 28 April 2015 and appeared before the Tribunal on 2 September 2016 to give evidence and present arguments, assisted by an interpreter in the English and Indonesian languages. At [11] of its Decision Record the Tribunal stated as follows:
[11]As result of differences between the applicant’s written and oral claims, as well as flaws in his testimony, I have formed the view that the applicant was not a credible witness. I elaborate below.
From [12] – [16] of its Decision Record the Tribunal recorded the findings and reasons which led it to the view that the Applicant was not a credible witness. At [13], the Tribunal noted that although the Applicant’s claims were fairly simple in nature, his oral evidence at the Tribunal hearing was inconsistent with his written claims. At [14], the Tribunal considered and recorded different versions of events as given originally in the Applicant’s Protection visa application and at the Tribunal hearing.
At [15] of its Decision Record the Tribunal again recorded its perceived inconsistencies between oral evidence given the Applicant at the Tribunal hearing and in his Protection visa application. At [16], the Tribunal recorded that in addition to the foregoing discrepancies between his written and oral claims, his evidence at the Tribunal was variously “rehearsed” rather than “spontaneous”, “intentionally unforthcoming” and “intentionally evasive”, and he was making up his evidence “...as he went along”, rather than “being truthful and forthright”.
At [17] of its Decision Record the Tribunal recorded that the matters previously discussed, taken into account cumulatively, led it to conclude that the Applicant was not a credible witness. At [20], the Tribunal recorded that it rejected the Applicant’s protection claims and affirmed the Delegate’s decision not to grant a Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon are stated in an Attachment to the Application filed in this Court. I will take each paragraph of the Attachment as a Ground and they are renumbered for ease of reference and are as follows:
1. I couldn’t agree with DIBP and AAT’s decision because it is unfair and unreasonable. My real risk and danger have never been well considered. I know for certain that I will become a target being chased by police due to my involvement of demonstration against government if I return to Indonesia as the situation there never changed better. Some of my peers involved in the same tragedy are still being caught by police or under arrest.
2. AAT did not take account of my statement especially my explanation given in hearing about my fears of return.
3. AAT failed to prudently consider Indonesia, the country of tyranny, in which law and government are not in favour of those weakness and never protect those who have different voice with government and I am a victim in fighting democracy and safeguard my legal tight in society.
4. I came from Indonesia and have experienced persecution by involving myself in protest against corruption and being arrested. The police targeted me as the person not welcomed by government and putting threat on.
5. I was in risk due to constant threat and punishment from police and those who suffered in the similar situation with me had even received worse treatment by government. This has crushed down my confidence in seeking justice in my origin. I feel disappointed and lost sense of security living in Indonesia.
6. I long for freedom and democracy and this is why I seek protection in Australia as this the country treat me with indignity and justice. I am afraid that living in my origin will be nothing but persecution and vulnerability as I will be chased by police and failed to have secured life. I have no alternative but to escape for Australia to sake of my security and human right.
Consideration
Ground 1
Ground 1 appears to invoke a merits review of the decision of the Tribunal which is not available in this Court and seems to express mere disagreement with the decision of the Tribunal.
Ground 1 fails to establish jurisdictional error.
Ground 2
First, this Ground is expressed in a generalised and unparticularised form and does not identify how, and in what way, the Tribunal did not “take account” of his evidence and claims. This Ground fails at a factual level. In my view, it is quite clear that the written claims of the Applicant, as made by him in his Protection visa application, were meaningfully considered and taken into account by the Tribunal, which in fact used those written claims and contrasted them against his oral evidence at the Tribunal hearing.
The Applicant has not identified the parts of his Protection visa application which he alleges in this Ground were not taken into account and I cannot for myself discern any of his claims which were not taken into account by the Tribunal. The Applicant has not tendered any transcript of the Tribunal hearing to establish that the Tribunal did not take his written claims into account at the Tribunal hearing, notwithstanding that by order 3 of this Court of 4 November 2016 the onus of providing a transcript was upon him.
In my view, Ground 2 fails to establish jurisdictional error.
Ground 3
Again, this Ground fails to assert a meaningful basis for a finding of jurisdictional error, and invites merits review and is not made out.
Ground 4
This also is not a meaningful assertion of jurisdictional error, but constitutes a re-agitation and recapitulation of his claims which the Tribunal has already rejected. This Ground fails to establish jurisdictional error.
Ground 5
This is not a meaningful Ground for an assertion of jurisdictional error and accordingly fails to establish jurisdictional error.
Ground 6
This again is but a recapitulation of the Applicant’s claims for protection and is not made out.
I have looked at the Decision Record for myself. It is, of course, the case that credibility findings of a Tribunal are not beyond judicial scrutiny. Credibility findings remain “findings of fact the same as any other fact”: CPW16 v Minister for Immigration and Border Protection (2017) FCA 1210 at [15] per Flick J.
However, in this case, I do not consider that the findings of the Tribunal in relation to the Applicant’s credit, or otherwise, could be said to be unreasonable or without a logical, rational or probative basis, or founded on objectively minor matters. Nor could they be regarded as “blanket, reflex or exaggerated adverse credit findings”: see AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143 per Allsop CJ, Kenny and Bromwich JJ at 145 [11]. Rather, they seem to me to be findings which were legally open to the Tribunal on the material before it.
A Final Matter – s.438 Certificate
There is a s.438 certificate (s.438 certificate) point in this case raised by the Minister as a model litigant and not relied upon by the Applicant in any of his Grounds. At [18] of the Decision Record of the Tribunal, the following was stated:
[18]In reaching my conclusion about the applicant’s credibility, I have not given any weight to the information that was provided by a person to the Department that the applicant’s protection claims were false, and that the applicant was in fact a drug dealer in Indonesia who had stolen money there and feared ‘mafias’ if he returned to Indonesia. The identity of the person and information which could identify the person is the subject of a non-disclosure notification under s.438 of the Act. However, there is no information before me about the identity of the person. Pursuant to s.424AA of the Act, I invited the applicant to comment on or respond to the information which the person had provided to the Department about the applicant. The applicant denied he had been a drug dealer or that he had stolen money, and said that he did not fear any mafias in Indonesia. I have decided to give the information provided by the person no weight because the person is not identified, the person’s motivation in disclosing the information is unknown to me, and the allegations made by the person are untested and unsubstantiated.
The existence of a non-disclosure certificate has resulted recently in findings of error in some cases where applicants have been found to have been denied procedural fairness, namely: MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1 per Beach J; Singh v Minister for Immigration (2016) 313 FLR 1 per Judge Jarrett; BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522 per Robertson J; and the Full Court of the Federal Court decision of BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36.
In this case, the “information” the subject of the s.438 certificate is said at [18] of the Decision Record to have been given by the Tribunal to the Applicant under s.424AA of the Act. At the hearing in this proceeding, the Minister put into evidence the document which was the subject of the s.438 certificate and was given by the, what I will call, ‘informant’ to the Department.
At the hearing, the Applicant did take up this issue and did submit that the Tribunal was influenced by what the informant had said, and affected by what the informant had said, and he in fact stated from the Bar table that he considered, believed or knew that the informant was actually the person whom he asserted had helped him with his Protection visa application. The Applicant denied orally at the hearing today that the information that the informant had given was true. I have read the informant’s email to the Department and it is clear that the informant made allegations which could have affected the Tribunal in coming to its decision.
However, the Tribunal has stated and given what are obvious and common sense reasons for deciding as it does at [18] of its Decision Record that it would give the information provided by the informant no weight because the person was not identified or known to the Tribunal and the motivation of the informant in making the allegations and giving the information to the Department was unknown to the Tribunal and the allegations made by the informant were untested and unsubstantiated.
There is no evidence before me which has any tendency to suggest that the statement of the Tribunal in this regard should not be accepted, or that the Tribunal was insincere in making the statement that it had given this information no weight. The Applicant’s claims on the face of the Decision Record were rejected based on credibility findings with respect to the Applicant himself and not any issues or factual matters or circumstances raised by third parties, including the informant.
In my view, the Tribunal clearly did not act on the information the subject of the s.438 certificate and that information does not appear to have had any impact on the outcome of the review, and so there was no practical unfairness caused by anything associated with the information provided by the informant and the s.438 certificate.
Accordingly, the information the subject of the s438 certificate did not impact on the outcome of the review and, in my view the s.438 certificate and its existence did not result in any jurisdictional error: see VZV15 v Minister for Immigration and Border Protection [2017] FCA 1522 at [2] – [4] per Robertson J and the Full Court decision in BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36 at 43 – 44 [30] – [34] per Kenny, Tracey and Griffiths JJ.
I finally note that my view of the s.438 certificate in relation to this case accords with the views of his Honour Judge Street of this Court in DME16 v Ministerfor Immigration and Border Protection [2017] FCCA 2056, in particular at [22], and see also the decision of Her Honour Judge Jones of this Court in ALF16 v Minister for Immigration and Border Protection [2018] FCCA 1596. I am informed from the Bar table in response to an enquiry made by me during the hearing that both these decisions are under appeal in the Federal Court, but I do not consider that they are clearly wrong and my view accords with the views expressed in them.
Accordingly, in my view no jurisdictional error would have been established if the circumstances relating to the s.438 certificate in this case had been relied upon and raised by the Applicant.
Conclusion
It accordingly follows that, in my view, the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 26 November 2018
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