DHB16 v Minister for Immigration

[2017] FCCA 2988

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHB16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2988

Catchwords:
MIGRATION – Protection visa – delay in applying for protection visa – adverse credit findings – weight – whether Tribunal failed to ask itself the correct question – no error demonstrated – application dismissed.

Legislation:

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

Cases cited:

Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal and Ors (2011) 193 FCR 57
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: DHB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 370 of 2016

Judgment of: Judge Heffernan

Hearing date: 7 November 2017

Date of Last Submission: 7 November 2017

Delivered at: Adelaide

Delivered on: 5 December 2017

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Ms Milutinovic

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed 3 November 2016 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 370 of 2016

DHB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 10 October 2016 which affirmed an earlier decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) Visa (‘Protection Visa’).

2. The applicant is self-represented and while he claims to have a reasonably good command of English, he had the assistance of an interpreter in the Punjabi and English languages.  His application filed on 3 November 2016 identifies the following grounds of application (copied verbatim):

   “Tribunal Member made wrong finding in the case.  In paragraph 39.  I had clearly said and acknowledged by the member that I was threatened in India.  In paragraph 79 member stated “The applicant gave a sworn evidence and the tribunal accepts that neighter the applicant nor his family have been threatened due to the applicants DSS involvement”  Tribunal contradicts with its own statement.  Member also failed to put weight on the fact that We were attacked in the book stall.  It was my good luck that I was inside and got saved. Tribunal member asked wrong questions like what was the “name of group that attacked book stall and kind of injuries victims received”.

   The group of attackers dont have a name and people received different kinds of injuries and their was chaos everywhere.  Tribunal gave more importance on wrong questions and made jurisdictional error in the decision.”

3. On 30 November 2016, the Registrar gave the applicant leave to file any amended application by 10 February 2017.  In addition, the applicant was given leave to file and serve further material, including a transcript of the proceedings before the Tribunal, if he sought to rely on such material.  The applicant has neither filed an amended application nor any further material for the consideration of the Court.  The Registrar also ordered the applicant to file any outline of submissions 14 days prior to the hearing of the matter.  No outline has been filed.  The applicant relies on his affidavit dated 3 November 2016.  That document annexes a copy of the decision record of the Tribunal, and repeats the grounds of application as set out in the initiating document, but otherwise adds nothing of substance to these proceedings. 

Background

1. It is appropriate to set out the chronology of the applicant’s visa application prior to his Protection Visa application as his history was a matter to which the Tribunal referred when considering the applicant’s claims and evidence with respect to the Protection Visa.  I note that the applicant confirmed at the Tribunal hearing that he agreed with the chronology as set out below.

2. The applicant is a citizen of India who arrived in Australia on 8 February 2009 on a student visa.  At the time of the Tribunal hearing he was 31 years old.  He was granted a second student visa that was valid until 12 November 2011.  He then applied for a third student visa but that application was refused on 17 May 2012.  Between that time and the date of the Tribunal hearing, the applicant has held a series of bridging visa. 

3. The applicant applied for a merits review relating to a cancellation decision by the Migration Review Tribunal (‘MRT’).  The MRT confirmed the decision of the delegate from November 2012.  The applicant then lodged an appeal from the MRT decision in the Federal Magistrates Court.  The Court upheld the MRT decision in July 2013. 

4. In August 2013, the applicant wrote to the Minister seeking intervention in his case.  As the Tribunal noted, that letter made no reference to protection claims.

5. As he had sought Ministerial intervention, the applicant was granted a Bridging Visa E.  As the Tribunal noted, and as the applicant agreed at the Tribunal hearing,[1] at the time of granting him the Bridging Visa E, the relevant departmental officer noted that the applicant had informed the Department that he would make voluntary arrangements to leave the country in the event that his request for intervention by the Minister was unsuccessful.

   [1]     Court Book (‘CB’) p 110 at [32].

6. The applicant was granted a further Bridging Visa E on 27 August 2013.  That visa was valid until 27 November 2013.

7. On 26 November 2013, the Tribunal noted that the applicant spoke with an officer of the Department and indicated that he did not wish to return home but that he did not want to apply for a refugee visa.[2]  The Department granted the applicant a further Bridging Visa E which was valid until 26 February 2014, and continued to provide bridging visas as required.

   [2] CB p 110 at [26].

8. The Minister advised on 19 May 2014 that he would not intervene in the applicant’s case.  He spoke with the Department at about this time but did not mention anything about the prospect of obtaining a protection visa.[3]  It was only when the Department started to demand that he attend and produce his ticket for departure as evidence of his intention to leave the country, that the applicant made his application for a Protection Visa on 24 June 2014.  As a result of that application, he was then granted subsequent bridging visas.

   [3] CB p 110 at [28].

9. For reasons not identified by the Tribunal, the initial Protection Visa application was apparently invalid and a subsequent application was made in September 2014.

Tribunal hearing and findings

1. The Tribunal identified that the applicant claimed to fear that “extremist Sikhs and Hindus” would “kill him” if he were to return to India.[4]  This was on the basis that he was a follower of a sect known as Dera Saccha Sauda (‘DSS’).  He claimed that many people had joined the sect because of him and for that reason “extremist people” believed that he was converting people and as a result they wanted to kill him.[5]  He claimed that the authorities would not protect him because of “politics”.  He further claimed that friends of his in India had been hurt but that police had failed to take appropriate action.

   [4] CB p 111 at [36].

   [5] CB p 111 at [37].

2. The Tribunal noted and set out in detail the nature of the claims for protection made by the applicant when he appeared before it.[6]  In particular, it noted that on the applicant’s case he had not experienced any threats since he had arrived in Australia and that he confirmed that he feared harm from extremist Sikhs but not from Hindus.[7]

   [6]     CB p 113 at [45]-[49].

   [7]     CB p 113 at [48]-[49].

3. The Tribunal considered a range of country information with respect to DSS, including news reports and the sect’s own website.[8]  The Tribunal specifically raised with the applicant that the country information suggested that with the exception of a brief period of violence in 2007/2008 at the time of an election, it had been unable to find any country information relating to threats of harm or acts of harm against ordinary DSS followers.  The applicant’s response to this was simply that there were some issues and situations that have not been reported in the media.[9]

   [8]     CB p 113 at [50] to p 115 at [61].

   [9] CB p 115 at [61].

4. The Tribunal identified its concerns about the delay in the applicant applying for the protection visa and gave him an opportunity to comment on this.[10]  The Tribunal did not accept his explanation for delay in applying for a protection visa, in particular his claim to have a lack of knowledge about the availability of such visa.  It concluded that that indicated he did not have a genuine fear of persecution in India.

   [10]    CB p 115 at [62]-[68].

5. The Tribunal accepted that the applicant had been involved with DSS since High School and intermittently at University.  It further accepted his evidence that he had never been involved in the political aspects of DSS.[11]  It did not accept that he had ever been personally harmed or threatened by extremist Sikhs.  It found that there was no evidence that the applicant would be targeting for violence by extremist Sikhs.

   [11] CB p 116 at [71].

6. The Tribunal rejected the applicant’s evidence as to “the book stall incident” in what was essentially an adverse credit finding based on the applicant’s inability to describe the incident with any precision.[12]

   [12] CB p 116 at [74].

7. The Tribunal found that if the applicant were to return to India, he would not engage in any activities that would put him in danger of an attack by extremist Sikh groups.  The Tribunal was satisfied that the applicant would not be in any danger upon his return to India.  It drew adverse credibility findings based on the five year delay in applying for the protection visa, particularly given the applicant’s frequent contact with the Department during that period.[13]  The Tribunal gave weight to the fact that the applicant did not make an application for the Protection Visa until after he had exhausted all other options with respect to his student visa and had been without a substantive visa for almost three years. 

   [13] CB p 116 at [77].

8. The Tribunal accepted the applicant’s evidence that neither he nor his family had ever been threatened or physically injured due to his history of involvement with DSS.[14]

   [14]    CB p 117 at [79]-[80].

9. The Tribunal was not satisfied that the applicant faced any risk of harm because of his imputed or actual religious views, based on his own evidence.  For that reason, it was not satisfied that he had a well-founded fear of persecution for a convention reason should he be required to return to India.  The Tribunal used the same finding to satisfy itself that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to India there was a real risk that he would suffer significant harm.  For that reason, it was satisfied he did not attract the complimentary protection obligations.

Submissions

1. The applicant made submissions to the effect that the Tribunal had erred, but his submissions were essentially directed at agitating issues of fact.

2. The first respondent submitted that there was no error of approach taken by the Tribunal and that the grounds disclosed no jurisdictional error.  It submitted that the findings with respect to the “book stall incident” were open to the Tribunal and that ‘weight’ was a matter for the Tribunal.

Consideration

1. There are three aspects of the single ground identified by the applicant, all of which are misconceived.  For the sake of clarity, I will deal with each aspect as a distinct ground of application.

2. The applicant’s contention that the Tribunal’s finding at paragraph 79 was contradictory to earlier findings it had made on the evidence must be rejected.  The earlier evidence identified by the applicant at paragraph 39 of the Decision Record was not a finding of fact made by the Tribunal, but rather an extract from the Decision Record of the delegate that set out evidence the delegate regarded as inconsistent.  The Tribunal’s finding that neither the applicant or any member of his family had been threatened as a result of his involvement with DSS was based on evidence the applicant himself gave to the Tribunal.[15]

   [15]    CB p 113 at [45]-[48].

3. The Tribunal was entitled to take note of the delegate’s consideration of evidence before it that he had been threatened as well as the delegate’s doubts that that was the case.

4. Having rejected the applicant’s evidence as to “the book stall incident”, it was clearly open to the Tribunal to make the finding that neither the applicant or his family had been threatened.  There was nothing internally inconsistent or self-contradictory with this approach.  I dismiss this ground.

5. The applicant’s complaint that the Tribunal did not accord sufficient weight to “the book stall incident”, must be rejected.  Firstly, the Tribunal did not accept that that incident had occurred as alleged by the applicant.  Secondly, as a general proposition, the amount of weight to be accorded to a particular piece of evidence is a matter for the Tribunal.[16]  It was clearly open to the Tribunal to make a finding that the incident did not occur because of its assessment that the evidence of the applicant was vague, lacking in detail, and that the matter had been raised for the first time before the Tribunal.  I dismiss this ground.

   [16]    Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

6. Finally, there is no substance in the applicant’s complaint that the Tribunal asked itself the wrong questions with respect to “the book stall incident”.  I am satisfied that the Tribunal considered the applicant’s evidence and assessed his claim by reference to the requirement of s.36(2)(a)(aa) of the Migration Act 1975 (Cth) (‘the Act’).  The Tribunal set out in its Decision Record the relevant law including the refugee criterion and the complimentary protection criterion in a manner that was unexceptionable.[17]  I accept the submission of the first respondent that the Tribunal properly applied the correct framework of analysis and it had made findings open to it on the evidence.  It was appropriate for the Tribunal to test the evidence of the applicant and it is well established that a Tribunal need not accept uncritically evidence given to it by an applicant.  The applicant was given an opportunity to put evidence and present argument before the Tribunal and he did so.  It was for him to make his case, and I am not satisfied the Tribunal took an incorrect approach to assessing the evidence before it.  The Tribunal rejected aspects of that evidence and the claims he made.  That does not of itself support a conclusion that the Tribunal must have asked itself the wrong questions.  It was appropriate for the Tribunal raise questions as to the specific circumstances of attack and injuries sustained by persons involved in “the book stall incident”.  The findings were open to the Tribunal.  I dismiss this ground.

   [17]    CB pp 107 - 108.

7. The applicant is clearly dissatisfied with the decision of the Tribunal, but in reality he has approached these proceedings with a view to seeking a merits review, which is not the function of this Court.[18]  As the Full Court observed in NAHI:[19]

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal.  In many cases, those exceptions were purely on the basis that the appellants disagree with the findings.  In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal.  To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act.  As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed.  Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

   [18]    Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal and Ors (2011) 193 FCR 57 at [16].

   [19]    NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].

8. Those comments are apposite here.  Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 5 December 2017