DGR16 and Ors v Minister for Immigration and Anor (No.2)

[2018] FCCA 910

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGR16 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 910

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of Minister for Immigration and Border Protection not to grant Protection visa – whether Tribunal failed to bring to applicant’s attention claim he did not state in his oral evidence but did state in his written application – whether any failure to do so amounted to jurisdictional error – whether the Tribunal took into account irrelevant considerations – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2A), 424A

Cases cited:

Minister for Immigration and Citizenship v SZLFX [2009] HCA 31

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

First Applicant: DGR16

Second Applicant: DGS16

Third Applicant: DGT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3020 of 2016

Judgment of: Judge Manousaridis

Hearing date: 6 April 2018

Date of Last Submission: 6 April 2018

Delivered at: Sydney

Delivered on: 17 April 2018

REPRESENTATION

First applicant in person and as litigation guardian for the third applicant, assisted by an interpreter

Second applicant in person assisted by an interpreter

Solicitor for the first respondent: Mr L Dennis of Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3020 of 2016

DGR16

First Applicant

DGS16

Second Applicant

DGT16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, who are Indian nationals, apply for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (Protection visa).

Background

1. The first applicant (applicant) came to Australia in 2007 on a student visa to study a Certificate III in Commercial Cookery, and completed various courses between 2008 and 2009. In November 2009 the second and third applicants, who are the applicant’s wife and son respectively, came to Australia on Tourist visas.

2. On 21 February 2012 the applicant was granted a 457 visa for a period ending on 24 April 2014. The 457 visa was cancelled in March 2014.

Claims for Protection

1. On 23 May 2014 the applicants applied for a Protection visa.[1] The second and third applicants, who did not make any protection claims of their own, applied as members of the family unit of the applicant.[2]

   [1] CB80

   [2] CB259, [5]

2. The applicant first stated his claim for protection in a written statement that was provided to the delegate (Statement).[3] He there claimed he is “a victim of workplace abuse and fraud by my 457 sponsor”. That claim, as summarised by the Tribunal, was based on the following:[4]

   [3] CB102-109

   [4] CB260, [9]

   a)In October 2012 the owner (by which I understand the applicant intended to mean the sponsor) told the applicant he was transferring ownership of the company that employed the applicant to another person, but the applicant’s visa would continue under the same company.

   b)The applicant did not receive a group certificate from the new owner. When he asked about it the new owner told him he had insufficient funds to pay his tax and superannuation and demanded the applicant give him $15,000, which he said he would return to him. The applicant arranged to give him $13,000 from friends, but the new owner did not give him a group certificate.

   c)On 12 December 2013 the sponsor demanded $40,000 from the applicant and threatened to kill the applicant and his wife if the applicant refused to pay or attempted to return to his country. The next day the sponsor was drunk and again demanded the money.

   d)The sponsor sexually harassed the applicant. The applicant felt shame and stress. He asked for, and the sponsor gave the applicant, leave for a few weeks. The sponsor threatened the applicant, stating if he did not return to work with the money he would arrange with his associates in India a “death plan” for the applicant and his family.

   e)The sponsor had a photograph of the applicant and his family which he took from the applicant’s house when he was there to borrow a car. He had marked the photograph with a cross sign.

   f)When the applicant returned to the restaurant four weeks later, it was shut down. No one had any information for the applicant. He was stressed and believed the sponsor would harm his family.

   g)The applicant began to look for another sponsor because his 457 visa was due to expire in April 2014. The applicant discovered, however, that his sponsor had already cancelled his visa.

   h)In May 2014, after he told the story to the Department of Immigration and Border Protection (Department), the applicant received a telephone call from an unknown number. It was the applicant’s former sponsor. The sponsor demanded the money, and threatened to kill the applicant and his family.

   i)The applicant is afraid to return to his country because the former sponsor has his eyes on the applicant and is waiting for the applicant to return; and the applicant’s country is full of corruption where it is easy to perform such criminal activities if you have money and power.

Before the Tribunal

1. As set out in the Tribunal’s reasons for decision the applicant and the second applicant gave evidence. Relevant to application before me is the Tribunal’s discussion with the applicant about a number of what the Tribunal considered to be “inconsistencies, contradictions and omissions in his written and oral evidence”.[5] First, in the Statement the applicant claimed the new owner asked the applicant to pay $15,000 but the applicant said he paid $13,000. Second, in his evidence before the Tribunal the applicant said he paid $2,000 to the sponsor, and the new owner asked the applicant to pay him $50,000. Third, in the Statement the applicant claimed the sponsor had sexually harassed him, but he did not mention that to the Tribunal.

   [5] CB263, [25]

2. According to its reasons for decision the Tribunal “explained that these inconsistencies and omissions may contribute to reasons why the Tribunal has doubts about his truthfulness and the credibility of his claims”. The applicant said he was not represented “at the time”, and that that would explain mistakes or omissions.[6] The Tribunal agreed to allow the applicant one week after the hearing “to provide any further evidence, explanation or submissions”.[7] The applicant’s agent provided to the Tribunal a letter dated 20 September 2016, but that did not deal with any inconsistencies the Tribunal brought to the applicant’s attention during the hearing.[8]

   [6] CB263, [25]

   [7] CB263, [26]

   [8] CB251

The Tribunal’s Reasons

1. The Tribunal did not accept the applicant’s claims that his sponsor demanded money from him, or that his sponsor threatened the applicant because the applicant failed to pay money, or that he or his family’s lives would be at risk of harm from his sponsor or his associates if the applicant and his family were to return to India.[9] The Tribunal relied on a number of matters.

   a)The Tribunal found there were a number of omissions in the applicant’s evidence and inconsistencies between the Statement and his oral evidence to the delegate that, cumulatively, the Tribunal considered to be significant and material.[10] Here the Tribunal referred to the applicant giving inconsistent accounts of the amounts of money his sponsor and the new owner demanded from the applicant, and the amounts the applicant claimed he paid.[11]

   b)In the Statement the applicant said the sponsor sexually harassed him, but the applicant did not refer to this when giving evidence to the Tribunal, even when the Tribunal asked him if there were any other incidents.[12]

   c)The Tribunal had difficulty accepting the plausibility and credibility of the applicant’s claim that the sponsor would threaten and demand payment from him after he ceased working for him, and after the applicant’s 457 visa had been cancelled. [13]

   d)The Tribunal found it significant that the applicant had not pursued any complaint about the alleged demands or threats against him to any relevant authority in Australia.[14] The applicant gave inconsistent explanations why he had not complained to authorities in Australia about these matters.[15]

   e)The Tribunal found suspicious that, just after the applicant visited the Department and was told his visa had been cancelled, the applicant claimed he had received two telephone calls in which threats were made to him.[16]

   f)The applicant said he had not heard from his former sponsor after the two telephone calls, and that his family in India have had no contact or have received no adverse interest from the sponsor.[17]

   [9] CB264, [33]

   [10] CB264, [34]

   [11] CB264, [34]

   [12] CB264, [34]

   [13] CB264, [35]

   [14] CB265, [36]

   [15] CB265, [37]

   [16] CB265, [39]

   [17] CB266, [40]

2. Because the Tribunal rejected the applicant’s claims that his sponsor demanded money from him and that his sponsor threatened him or his family with harm on his return to India, the Tribunal did not accept the applicant’s sponsor, his associates or anyone else will harm the applicant or his family upon return to India. For this reason the Tribunal was not satisfied there is a real chance the applicant will face serious harm if he were to return to India in the reasonably foreseeable future.[18]

   [18] CB266, [42]

3. The Tribunal also considered the applicant’s claim that he fears for his son, who had been in Australia for the past six years, and the difficulty for him of returning to India. The Tribunal accepted that the applicant’s son has been in Australia since 2009, and, given his young age and stage of education, his returning to India now may be disruptive and difficult for him. The Tribunal was not satisfied, however, that disruption to education, financial hardship or other such difficulties or challenges amount to serious harm for the purposes of the s.36(2)(a) of the Migration Act 1958 (Cth) (Act).[19]

   [19] CB266, [43]

4. Given its findings, the Tribunal found it unnecessary to consider whether the applicant’s claimed fear of harm is for a Convention reason;[20] and, it was not satisfied there are substantial grounds for believing there is a real risk the applicant[21] or the applicant’s son[22] will suffer significant harm as defined in s.36(2A) of the Act if the applicant and his son were to return to India.

   [20] CB266, [44]

   [21] CB266, [48]

   [22] CB267, [49]

Grounds of Application

1. The grounds of application are as follows:

   1.Failing to Consider Relevant Matters – the Tribunal erred in law in arriving at the decision by failing to consider relevant matters in failing to afford an opportunity to the Applicant to respond to relevant matters.

   2. Considering Irrelevant Matters – the Tribunal erred in law by considering irrelevant matters.

   Particulars of Failing to Consider Relevant Matters

   a) The Tribunal failed to ask the Applicant to specifically comment on his failure to mention the alleged sexual harassment by his then sponsor in his oral evidence during the hearing before the Tribunal, a matter of fact which was contained in the Applicant’s written submissions which were filed in the Tribunal.

   Particulars of Considering Irrelevant Matters

   a) The Tribunal erred by seeking an explanation from the Applicant as to the basis of his former sponsors threats against the Applicant and his family and the failure by the Applicant to respond to the same.

   b) The Tribunal erred by making a finding that the Applicant was not telling the truth about the demands and the threats made by the sponsor based on the failure by the Applicant to report the sponsor to any authority in Australia including the Police.

2. It is apparent that the particulars stated in the first paragraph (a) are intended to be particulars to ground 1.

3. At the hearing before me the grounds set out in the application were interpreted to the applicant, and I invited the applicant to make submissions in relation to the grounds. Apart from stating he did not understand the first ground, the applicant made no submissions in response to the grounds as they were interpreted. The applicant, however, did make submissions that relate to the first ground.

Ground 1

1. Ground 1 claims the Tribunal failed to ask the applicant to comment specifically on his failure to mention the alleged sexual harassment by his sponsor in his oral evidence during the hearing before the Tribunal.

2. The applicant did not tender into evidence at the hearing before me a transcript of the hearing before the Tribunal. The applicant, however, relied on an affidavit in which he deposes as follows:

   The Member did not ask me in relation to my sexual harassment claim, I was too nervous to remember mentioning this when the Member asked if there were any other incidents I would like to draw the attention to. However, this important information was specifically stated in my written statement. And during the hearing, the Member did not ask me to comment on the same when this information was already available to the Member.

3. The applicant was not cross-examined; and the question arises whether I should, on the basis of the applicant’s affidavit, accept that the Tribunal did not ask the applicant to “comment on the same”, but which I take the applicant to intend to refer to his having claimed in his Statement that he had been sexually harassed. That, in part, turns on what, if anything, the Tribunal in its reasons records it asked the applicant about his claim based on sexual harassment.

4. The only passage in the Tribunal’s reasons which is at least potentially relevant to determining whether the Tribunal asked the applicant about the claim based on sexual harassment he made in the Statement is the following:[23]

   The Tribunal also discussed with the applicant the following inconsistencies, contradictions and omissions in his written and oral evidence which, taken together, may also [have] contributed to concerns about the truthfulness and credibility of his claims. In his statement he referred to being asked by [the new owner] to pay $15,000 initially, and that he paid him $13,000. However in his oral evidence to the Tribunal today he referred to and provided a document indicating that his original sponsor . . . asked him for money and he paid him $2000, and then [the new owner] asked him to pay $50,000 In his written claims he also referred to being sexually harassed by his sponsor, but he did not mention that to the Tribunal. The Tribunal explained that these inconsistencies and omissions may contribute to reasons why the Tribunal has doubts about his truthfulness and the credibility of his claim. In response the applicant said that he was not represented at that time and this may explain any mistakes or omissions. The Tribunal noted that he has been represented again in his review application and he has had a substantial amount of time to provide explanations or submissions, and he has not.

   The Tribunal agreed to allow a period of one week after the hearing for the applicant to provide any further evidence, explanation or submissions.

   [23] CB263, [25], [26]

5. The words “these inconsistencies” is reasonably capable of being construed as a reference to the inconsistencies the Tribunal identified in this passage, including the applicant’s having claimed in the Statement that he was sexually harassed by his sponsor, but not mentioning that to the Tribunal when giving oral evidence. In these circumstances I am not prepared to accept the applicant’s evidence that the Tribunal did not bring to his attention that in his Statement he claimed he was sexually harassed but said nothing about that before the Tribunal.

6. Even if, however, the Tribunal did not bring to the applicant’s attention these matters, that would not reveal any jurisdictional error by the Tribunal. That the applicant had failed to give evidence to the Tribunal about a matter the applicant had given evidence in a statement he submitted in support of his application for a Protection visa is not information that fell within s.424A of the Act. That is so because it is not information that on its terms contains “a rejection, denial or undermining of the” applicant’s claim to be a refugee.[24]

   [24] Minister for Immigration and Citizenship v SZLFX [2009] HCA 31, at [22]

7. There is another matter to note. In his affidavit the applicant deposed that the Tribunal member asked the applicant whether there were any other incidents to which the applicant wished to draw the Tribunal’s attention, but the applicant “was too nervous to remember mentioning this”. As the Tribunal noted in its reasons, however, the applicant was given an opportunity to provide within one week after the hearing “any further evidence, explanation or submissions”;[25] and, although the applicant’s agent provided to the Tribunal a letter, it did not deal with any inconsistencies the Tribunal brought to the applicant’s attention during the hearing.[26]

   [25] CB263, [26]

   [26] CB251

8. It is also appropriate that I mention that at the hearing before me the applicant made a number of complaints about the conduct of his representative. The applicant said his representative had assured him he would make submissions about the applicant’s claim based on sexual harassment, and that the applicant would be asked about this claim. The applicant also made a general complaint that his representative did not help him. The applicant made these statements from the bar table.

9. Even if the applicant were to have made these statements under oath, I would have given them no credit. The applicant filed an affidavit at the time he filed his application for judicial review that deals with a number of matters. The applicant there says nothing about any advice his representative gave or failed to give to the applicant, or about the representative’s conduct. In any event, even if I were to accept the applicant’s assertions, that would not reveal serious conduct on the part of the applicant’s representative such as would justify a finding that the representative acted in bad faith and, for that reason, the Tribunal’s jurisdiction remained “constructively unexercised”.[27]

   [27] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [14], [51]

10. Ground 1, therefore, fails.

Ground 2

1. Ground 2 claims the Tribunal took into account two irrelevant considerations. The first is that the Tribunal sought “an explanation from the Applicant as to the basis of his former sponsors threats against the Applicant and his family and the failure by the Applicant to respond to the same”. This appears to be a reference to the Tribunal’s asking the applicant for an explanation why, as the applicant claimed, after the applicant’s 457 visa had been cancelled, the sponsor telephoned the applicant and told him that if the applicant returns to India he will arrange for someone to harm the applicant and his family, because he is rich and can do that.[28]

   [28] CB262, [17]

2. In his affidavit to which I have already referred the applicant refers to the Tribunal member having asked the applicant what would be the basis of the former sponsor threatening the applicant if the applicant’s visa had already been cancelled. The applicant deposed he “did not know the answer to this question as I am not my sponsor, I would not know his motive to threaten or harm me”.

3. It was reasonably open to the Tribunal to ask the applicant whether he had any understanding of why the sponsor would threaten him after the applicant’s visa had been cancelled. It was reasonably open to the Tribunal to consider implausible, as it did, that a former sponsor, for no apparent reason, would threaten a visa holder he or she had sponsored. The Tribunal’s question was directed to giving the applicant an opportunity to provide to the Tribunal some explanation that was otherwise not apparent about why the applicant’s sponsor might have made such threat. The Tribunal did not rely on the applicant’s not offering any explanation for the sponsor making threats as a reason for considering implausible the applicant’s claims that his former sponsor had threatened him; the Tribunal simply relied on the inherent implausibility of the applicant’s claim that his former sponsor did threaten him after his 457 visa had been cancelled.

1. The second matter ground 2 claims the Tribunal took into account which it ought not to have taken into account is the applicant’s not reporting to authorities in Australia the threats the applicant claimed he received from his sponsor.[29]

   [29] CB262, [18]

2. The Tribunal proceeded on the basis that, had the applicant in fact been the victim of unlawful threats, he would have reported his having received threats to the relevant authorities unless there was a credible reason for not doing so. It was reasonably open to the Tribunal to rely on such a generalisation. The Tribunal found the applicant did not report the threats to the authorities, and it did not accept as credible the explanation the applicant gave for not doing so (namely, stress).[30] In those circumstances it was reasonably open to the Tribunal to rely on the applicant’s not reporting to the authorities the unlawful threats of which he claims to have been a victim as a reason for not accepting the applicant’s claim that he had received threats.

   [30] CB262, [18]

3. In his affidavit the applicant deposes that he did not report the threats to authorities because he feared the sponsor would retaliate. It is not apparent from the Tribunal’s reasons that the applicant made this claim to the Tribunal. In its reasons for decision the Tribunal records that when asked whether the applicant made any complaints to the police or the “Workplace Ombudsman” or anyone else after the delegate put the applicant on notice of this, the applicant said he had still not made any complaint “because he did not think he was at risk from these people in Australia but only in India”.[31] The Tribunal also recorded that the applicant’s representative mentioned in a post-hearing submission that the applicant was seeking advice in relation to reporting the sponsor to officials in Australia, but the Tribunal noted that “no further information, explanation or submissions about this have been made”.[32] This part of the applicant’s affidavit, therefore, discloses no jurisdictional error by the Tribunal.

   [31] CB265, [37]

   [32] CB265, [37]

4. The applicant also deposed that he told the Tribunal member that the sponsor threatened him that if he goes back to India the sponsor would ask his associates to harm the applicant and his family because he sabotaged “his plan of profiting from visa sponsorship from the business he took over from my previous boss and I refused to pay money he demanded”. This in part repeats what the applicant said to the Tribunal; but it also states, in part, matters that it does not appear he stated to the Tribunal. This part of the applicant’s affidavit, therefore, discloses no jurisdictional error because it either contains matters the applicant stated to the Tribunal and which the Tribunal considered and rejected; or it contains matters which the applicant did not state to the Tribunal.

5. Ground 2, therefore, also fails.

Disposition

1. The applicant has failed to show the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  17 April 2018