DGU16 v Minister for Immigration

[2017] FCCA 1774

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGU16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1774

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether Tribunal erred by failing to give proper consideration to claims – whether Tribunal erred in making decision without original documents – whether Tribunal incorrectly considered misinterpretation by Interpreter – no jurisdictional error – application dismissed.

Legislation:

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

Cases cited:

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2

SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35

Applicant: DGU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 546 of 2016

Judgment of: Judge Smith

Hearing date: 6 June 2017

Date of Last Submission: 6 June 2017

Delivered at: Perth

Delivered on: 18 August 2017

REPRESENTATION

The applicant appeared in person by video link.

Solicitors for the Respondents: Mr D. Ireland, Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY AND PERTH

PEG 546 of 2016

DGU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia on an Indian passport on 28 April 2015. At the time he had a tourist visa; however, after being questioned by Immigration officers at the airport, that visa was cancelled and the applicant was taken into immigration detention.

2. On 2 July 2015, the applicant applied for a protection visa. He claimed to fear harm if he returned to India based on the following:

   a)an influential and wealthy politician alleged that the applicant was responsible for the drowning death of his son for political and religious reasons. He has vowed to kill the applicant;

   b)the applicant faces discrimination for some, or all, of the following reasons:

   (i)he is an orphan, or person whose father is unknown;

   (ii)he is a member of the lower caste;

   (iii)as a Sri Lankan; and

   (iv)as a Christian;

   c)the applicant faces discrimination as a stateless person.

3. On 19 July 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision.

4. The applicant attended a hearing conducted by the Tribunal on 17 August 2016 and the Tribunal handed down its decision on 4 October 2016 affirming the decision of the delegate.

Tribunal’s decision

1. The Tribunal first dealt with the applicant’s nationality. This issue arose essentially because the applicant claimed that he was born in Sri Lanka and taken to India by his parents when he was very young.  The applicant was then abandoned by his parents and grew up as an orphan. He claimed that he obtained his passport fraudulently. Having had regard to the Indian law on the question of nationality, as well as the applicant’s claims and the evidence relating to that issue, the Tribunal concluded that the applicant was an Indian citizen in accordance with Indian law. It found that the applicant was not a Sri Lankan national.

2. The Tribunal rejected the applicant’s claim concerning the drowning of the influential person’s son.  It also rejected the suggestion that such a person was pursuing the applicant in the belief that the drowning was political or religiously motivated.

3. The Tribunal then considered the applicant’s claims concerning discrimination on various bases. As it had concluded that the applicant was a citizen of India, the Tribunal did not consider whether the applicant faced discrimination because he was stateless. While the Tribunal accepted that the applicant may have experienced some problems of a minor nature as a Christian, it did not accept that he had suffered any measurable harm or any discrimination amounting to persecution or significant harm for any of the reasons claimed by him.

4. Finally, the Tribunal applied its findings of fact to an assessment of the criteria for the grant of a protection visa.  It concluded that the applicant did not satisfy either the criterion in sub-ss.36(2)(a) or 36(2)(aa) of the Migration Act1958 (Cth) (Act). For that reason, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.

5. The applicant now seeks judicial review of the Tribunal’s decision. Review by this Court of the Tribunal’s decision is limited to circumstances where the Tribunal’s decision is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506; [2003] HCA 2 at [76] to [77] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). In this context, the Court must beware of turning a review of the reasons of the Tribunal upon proper principles into a reconsideration of the merits of the decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6.

6. The grounds raised by the applicant in support of his application, do not amount to anything more than a request that the Court ignore the proper scope of its power to review the Tribunal’s decision, and to enter into an assessment of the merits of the Tribunal’s decision. The application must be dismissed with costs.

Consideration

First Ground: Jurisdictional error made in reviewing protection claim

1. The first ground in the application is that the “assessor has made jurisdictional errors in reviewing my protection claims”. There is no explanation of what those jurisdictional errors are and the ground may be left to one side.

Second Ground: Tribunal did not consider important claims

1. The second ground is that the Tribunal did not give “consideration (to) important claims (the applicant) made.” Some clarification of this ground arises from the applicant’s written submissions which raise a number of issues.

2. The first argument in the applicant’s submissions is that the Tribunal failed to “assess the significant harm” the applicant faced from the politician whose son died by drowning “just because I was unable to produce them the evidence of newspaper clipping.” The relevant part of the Tribunal’s reasons is at [51]:

   [51]The Tribunal has a number of concerns with this claim and the supporting evidence:

   …

   ·The applicant claims that he had a press clipping about the incident from the Tamil Nadu newspaper Daily Thanthi which the immigration service provider Serco had taken, and which is now subject to a complaint and ongoing investigation. (He provided copies of correspondence with Serco regarding his request for this.) He believed that most of the Tamil Nadu dailies covered the incident. Although the applicant kept copies of his other lost documents (his school certificates) and provided a newspaper report on the murder of a Christian boy in northern India, he indicated only vaguely that he would look to see whether he could obtain further copies of the reports on this incident. To date, the Tribunal has received no further material.

3. This passage shows that the failure by the applicant to produce newspaper reports to substantiate his claims concerning the death of the boy, was a part of the reason for which the Tribunal rejected this claim. It was not the sole, or even the major reason. In any event, that failure provided a logical basis for the Tribunal’s doubts about the claim: the applicant said (only vaguely) that he might be able to obtain further copies but did not. The applicant says that all his documents were lost by Serco and yet he kept copies of only some of those documents.

4. It may be that Serco lost the applicant’s documents and that that was a good reason for the applicant’s inability to produce the newspaper reports. However, that was not the only inference available on the evidence. Certainly, nothing in this argument establishes that the Tribunal failed to consider the claim concerning the consequences of the accidental death of a boy. In those circumstances, this argument really only amounts to a criticism of the merits of the Tribunal’s decision.

5. The second argument in the applicant’s submissions also concerns the claim about the politician and [51] of the Tribunal’s reasons. The applicant argues that the Tribunal “failed to realize the fact that (he) was deliberately freed from the custody of police with the support of the politician.” This claim was never made to the Tribunal and does not support any conclusion that the Tribunal failed to consider a claim, or otherwise fell into jurisdictional error.

6. The third argument needs to be set out in full:

   In para 51, the Tribunal says that I have told the member that my persecutor is not a politician, but he was doing some illegal mining. Here I would like to clarify that I have clearly given in my submission and said during the interview to tribunal that his ultimate intention is not to inherit a good position in politics but he uses his politics power with a support of a BJP minister to execute some illegal business like mining, sale of drugs etc. …

7. At [51] of its reasons, the Tribunal explained that it had concerns about the applicant’s evidence about the claim concerning the dead boy because his evidence about the father of the boy had changed. That was clearly correct. In his visa application, the applicant described the father as “a leading BJP politician”; in a submission made to the Tribunal the man was described as “the right hand of Mr [name] who is in power as an MP and Minister”. What the applicant now says was his evidence is consistent with the description of the evidence in [51] of the Tribunal’s decision. This argument does not raise any error in the decision.

8. The fourth argument in the submissions is:

   The member of Tribunal failed to assess my torture and trauma I fear to face in India if I live there without my school certificates which were lost due the mismanagement of the department of Immigration Detention Centre.

9. The applicant did write to the Tribunal saying that he “can not survive without my original school certificates.” However, that statement had no bearing on what might happen to the applicant in India. It was written to the Tribunal after the hearing, at which the provision of further information (and the loss of documents by Serco), was discussed. The only reasonable inference in that context is that the applicant needed his original documents to prove his case. There was no claim that had to be considered by the Tribunal in order for it to fulfil its task of reviewing the delegate’s decision.

10. The fifth argument is that the Tribunal failed to confirm the applicant’s identity. In this respect, the applicant also makes submissions about his passport and voter’s ID. The Tribunal did make a finding about the applicant’s identity, relevantly, that he was an Indian citizen: [45]. This argument and the submissions about the applicant’s passport and voter’s ID only take issue with the merits of that finding.

11. The sixth argument in the applicant’s submissions is that the Tribunal failed to assess “my discrimination and mistreatment due to my family status and my religious faith”. The Tribunal did consider those claims: [53] – [60]. The applicant’s complaint is that the Tribunal did not accept his claims. That is not an argument that raises any jurisdictional error.

12. The Tribunal did not fail to consider any claim made by the applicant. The second ground is rejected.

Third Ground: Decision made without important original documents

1. The third ground is a complaint that the decision made by the Tribunal was without “important original documents which were lost while in detention (due to Serco mismanagement).” This ground does not establish any jurisdictional error. Plainly enough, if the applicant could not obtain the documents, neither could the Tribunal. If the Tribunal did not have them, it could not consider them in conducting the review. There is no suggestion of fraud, or any other conduct, that stultified the process of review: cf. SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 at [49]; [2007] HCA 35. This ground is rejected.

Fourth Ground: Tribunal erred by taking into account Interpreter’s misinterpretation

1. The fourth ground is that the Tribunal erred by “taking into account some misinterpretation made by the interpreter”. At the hearing of this matter, the applicant submitted that the interpretation of his evidence before the Tribunal was inaccurate in that, contrary to what the interpreter said, he had not given evidence that Church members in Melbourne had told him where his father was living. This submission correlates to what the Tribunal noted at [19] of its reasons:

   [19]… At the Tribunal hearing, the applicant initially appeared to state that he got some information from Tamil churches in Melbourne that his father was living there. When pressed for details, he clarified that he had not in fact approached any churches yet, but intended to do so. (The applicant and the interpreter agreed that there may have been an interpreting error if there was any suggestion that he had already made enquiries.) …

2. Errors in interpretation may cause the Tribunal’s decision to be affected by jurisdictional error in a number of ways. An applicant may be deprived of a real opportunity to give evidence, or the Tribunal may not take an applicant’s real evidence into account. Essentially, if an error causes the process of review to be unfair there will be jurisdictional error.

3. Here, accepting that there was an error in interpretation as submitted by the applicant and described at [19] of the Tribunal’s decision, no jurisdictional error resulted from that error. That is because the Tribunal was aware of the error, and the applicant’s true evidence, and considered that evidence. Later at [19] the Tribunal stated:

   … He said that his real intention was to visit Tamil churches in Melbourne to find his father, even though he had not made enquiries so far. In response to the Tribunal’s surprise, …

4. This passage shows that the Tribunal acted on the corrected interpretation. The Tribunal’s surprise was not at the change in interpretation, but rather, because the applicant had not yet attempted to contact his father.

5. This ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     18 August 2017