DDY17 v Minister for Immigration
[2018] FCCA 2788
•27 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDY17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2788 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal made a finding on insufficient evidence or no evidence – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 SZUTO v Minister for Immigration and Border Protection [2018] FCA 1267 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413 |
| Applicant: | DDY17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2218 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 27 August 2018 |
| Date of Last Submission: | 27 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms A Davyskib of Minter Ellison Lawyers |
ORDERS
The application made on 14 July 2017 and amended on 9 January 2018 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2218 of 2017
| DDY17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) on 14 July 2017 and amended on 9 January 2018, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 June 2017, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The applicant is a citizen of Indonesia (CB 14). He arrived in Australia as the holder of a visitor visa on 26 November 2014 (CB 14). He made his application for a protection visa on 17 December 2014 (CB 1 to CB 31).
The applicant claimed to fear harm in Indonesia from “corrupted” police officers, gangs and government officers because of what he said were his political views. The applicant claimed to be “against corrupt government policy and corrupted government officers” (CB 19.7).
Further, the applicant claimed that he had been arrested following complaints he made to the Indonesian police about other Indonesian police officers who “accept money from local gangs to protect drug dealing”. He claimed to have been arrested in September of 2014 and “tortured”. He said he was released in October of 2014 (CB 19.7).
Following his release, the applicant claimed that he was constantly harassed by police and local gangs. He feared that they would kill him if he returned to Indonesia (CB 19.7).
The applicant was invited to attend an interview with the delegate on 18 May 2015 (CB 58.6). He did not attend the interview. The delegate refused the application for the protection visa on 20 July 2015 (CB 54 to CB 63). The applicant then applied for review to the Tribunal on 21 August 2015 (CB 64 to CB 70). The applicant was invited to, and attended, a hearing before the Tribunal on 4 April 2017 (CB 78 to CB 91).
Following the hearing, on 13 April 2017, the Tribunal wrote to the applicant and invited him comment on, or respond to, certain information (CB 109 to CB 111). The applicant responded to the Tribunal’s letter on 11 May 2017 (CB 112 to CB 113). The Tribunal affirmed the delegate’s decision on 9 June 2017 (CB 114 to CB 124).
For a large number of reasons, the Tribunal “did not find the applicant credible” ([12] at CB 120). This included that when asked from whom he feared harm in Indonesia, it was only after prompting by the Tribunal that the applicant claimed to fear harm from Indonesian police. This was despite stating that he “feared he could be killed by them if he returned to Indonesia” in his protection visa application ([13] at CB 120). The Tribunal also found that the applicant’s evidence regarding his fear of harm from the “Jack Gang”, and the police, to be “unforthcoming and confused”. Further, he had “contrived” some of the problems that he said he had in Indonesia ([15] at CB 121).
The Tribunal examined the applicant’s evidence and found that he was not recounting events as if he had actually experienced them. The Tribunal also found that if it was the case that the applicant had been watched and followed for months before he wrote the letter of complaint to the police, then it would be reasonable to expect that he would refer to this in his protection visa application. It found that the applicant appeared to have “invent[ed] the evidence about being watched and followed” ([15] – [16] at CB 121).
The Tribunal also found the applicant’s evidence regarding the people he claimed were selling drugs at the resort at which he worked, to be “hesitant and contradictory”, and further, the Tribunal found that the evidence he gave about how he came to discover that they were selling drugs was “vague and hesitant” ([17] at CB 121 to CB 122 to [18] at CB 122).
The Tribunal also found that the applicant gave oral evidence that was inconsistent with his claims in his protection visa application in relation to his evidence about what the police knew about the people who sold drugs. The Tribunal also found that the applicant had “altered his evidence” in regard to evidence he gave to the Tribunal on how police involvement in drug dealing had come up in his hospitality studies, and that his evidence regarding a phone call that he said he had received after sending the letter to the police had “changed” ([19] at CB 122 to [21] at CB 123).
Further, the Tribunal also found that the applicant had a publicly accessible Facebook account which indicated that he lived in Australia. The Tribunal found this information was inconsistent with the applicant’s claim that he “had not told anyone he was in Australia” and inconsistent with his statement that he “feared the gang may send someone to harm him” in Australia, if his whereabouts were known ([22] at CB 123 to CB 124).
Based on all of these matters, the Tribunal found that the applicant was not credible and that his protection claims had been “invented”. The Tribunal rejected his claims “in their entirety” ([23] at CB 124). The Tribunal therefore found the applicant did not meet the criteria for the grant of a protection visa ([24] – [25] at CB 124).
Before the Court
The parties first appeared before a Registrar of the Court on 12 October 2017 and various orders were made for the progress of the matter, including that the applicant have leave to file and serve any amended application and further evidence by way of affidavit. The applicant filed written submissions and an amended application, albeit out of time, on 9 January 2018.
The parties also appeared before the Court for directions on 11 April 2018. Leave was granted for the applicant to rely on his amended application and the matter was set down for final hearing. The Minister was also given the opportunity to file and serve written submissions, which he filed on 20 August 2017.
At the final hearing, the applicant appeared in person. He was assisted by an interpreter in the Indonesian language. The Minister was represented by a solicitor. The applicant explained that his arguments were contained in his written submissions which explained the ground in the amended application (see below). He also said that a “friend” who was studying law had helped him to draft his documents.
Consideration
A number of matters emerge from the applicant’s oral submissions to the Court. First, the applicant made constant reference to the decision by the “Minister”, or the “immigration department” and did not identify the Tribunal, or its decision. As the Minister correctly submitted, this Court has no jurisdiction to review the decision of the Minister, or his delegate. However, it is appropriate, as the Minister also submitted, to understand the applicant to have directed his complaints to the Tribunal, and the decision of the Tribunal, which is in evidence before the Court.
Second, the applicant appeared to assert that the Tribunal should have accepted a “little bit” of his claims. As noted above, the reason for the Tribunal’s rejection of the applicant’s claims was its disbelief of the applicant. That is, it found that the applicant was not telling the truth.
It is the case that the Tribunal is under no legal obligation to accept anything or everything that an applicant claims merely because the applicant has claimed it (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J and Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J).
Third, the applicant also complained that he was “uncomfortable” with the Tribunal’s decision. It is the case that an applicant’s lack of “comfort”, or even an applicant’s sense of grievance, with a Tribunal decision, is not sufficient such as to say the Tribunal made a “legal mistake” (jurisdictional error).
The amended application to the Court is in the following terms:
“The Tribunal erred in its findings of fact that the Applicant will not be harmed by government officers, police officers, Robby Sidarta, any gang or gang members for the reasons he has claimed if he returns to Indonesia. There is insufficient evidence for the Tribunal to make a conclusive statement that the Applicant will not be harmed. There should be differentiation in finding that there is not a real chance of the happening of an event as compared to finding or concluding that the event will not happen at all. Where the Tribunal makes a finding of fact and there is insufficient or no evidence to support the finding or the finding is irrational, there is jurisdictional error.”
Whoever drafted this ground for the applicant appears not to have grasped, or understood, the consequences of the Tribunal finding that the applicant was not credible, and that his claims to fear harm were an “invention”.
The central question for the Court now is whether the Tribunal’s finding in relation to the applicant’s credibility, and the findings that informed that ultimate finding, were reasonably open to the Tribunal on the material that was before it. The answer to that question, is that on the evidence before the Court, the Tribunal’s findings were reasonably open to it.
The Tribunal gave detailed and comprehensive reasons to explain its conclusion on the applicant’s credibility and did so with specific reference to the evidence before it. For the most part, this was the applicant’s own evidence that he had given to the Tribunal. The Tribunal’s reasons were intelligible and coherent and in their terms, were adequate such as to be the apparent basis for the conclusion that the Tribunal came to (SZUTO v Minister for Immigration and Border Protection [2018] FCA 1267 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413).
In this light, there was no error in the Tribunal rejecting the applicant’s factual account as to why he said he feared harm if he were to return to Indonesia.
The complaint in the applicant’s written submissions is that the Tribunal made an “unfounded conclusion” that he would not face harm on return to Indonesia ([18] of the applicant’s written submissions). That submission cannot be accepted. The basis for the Tribunal’s conclusion was its assessment of the applicant’s evidence. In expressing its conclusion, the Tribunal was entitled to rely on the findings that it had expressed earlier in its decision record (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26).
To the extent that the applicant’s ground asserts that the Tribunal’s findings were irrational, that must also be rejected. On any plain reading of the Tribunal’s decision record, its reasons were rational, and for that matter, they were reasonable and logical (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367). The findings of the Tribunal cannot be characterised as irrational simply because the applicant, and his “friend”, do not agree with them.
The applicant also complains that the Tribunal made its decision on “insufficient evidence”, or no evidence at all. The applicant, and his “friend”, who drafted the documents for him, seem not to have understood that the evidence on which the Tribunal based its adverse findings was the applicant’s own evidence. This was evidence which the Tribunal variously found to be “unforthcoming”, “confused”, “changeable”, had the appearance of “invention” in its presentation, “hesitant”, “contradictory”, and “vague” and that he was unable to answer a simple question directly.
The applicant has not put any transcript of the Tribunal hearing in evidence before the Court. On the only evidence that is available to the Court (the references in the Tribunal’s decision record), all of these findings were reasonably open to the Tribunal.
The applicant’s written submissions (at [16]) also ask that the Court give him the “benefit of the doubt” in relation to the inconsistencies in his evidence. It is trite to say that this Court has no power to substitute its own findings of fact for those of the Tribunal. I note again that those findings were all reasonably open to the Tribunal and for which it gave an intelligible and rational explanation probative of the evidence before it.
If the applicant’s submission seeks to argue that the Tribunal (rather than the Court) should have given him the “benefit of the doubt”, then in the circumstances, as they have been put before the Court, the Tribunal was under no such obligation. The Tribunal’s findings were emphatic and certain. Its findings were not attendant with such doubt as to have necessitated consideration of the “What if I am wrong? test” (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559, Minister for Immigration and Multicultural Affair v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 and A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296).
Conclusion
I cannot see that the Tribunal’s decision is affected with jurisdictional error. It is appropriate therefore to dismiss the application before the Court. I will make the appropriate order.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 27 September 2018
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