DHS19 v Minister for Immigration
[2020] FCCA 359
•25 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHS19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 359 |
| Catchwords: MIGRATION – Application for protection visa – inconsistent and vague evidence on the part of the applicant – adverse credibility findings – fears of applicant unfounded – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.140 |
| Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 |
| Applicant: | DHS19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 765 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 20 February 2020 |
| Date of Last Submission: | 20 February 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 25 February 2020 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the First Respondent: | Ms Allen, Solicitor of Sparke Helmore |
ORDERS
The application for review filed on 30 August 2019 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 765 of 2019
| DHS19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India who first arrived in Australia on 25 October 2013 – he was then a dependant of his wife who held a Student Visa at the time. On 27 May 2014, the applicant applied for a Student Visa which was refused on 1 July 2014. On 8 October 2014, the wife’s Student Visa was cancelled. That cancellation had the effect of automatically cancelling the applicant’s secondary visa by reason of the provisions of s.140 of the Migration Act 1958 (Cth) (‘the Act’), which provision provided as follows:
“Migration Act – Section 140
Cancellation of Visas results in other cancellations
(1) If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.”
On 26 March 2015, the Migration Review Tribunal determined that it had no jurisdiction to review the cancellation decision. On 22 April 2015, the applicant requested ministerial intervention. That request was refused on 8 May 2015.
On 30 November 2015, the applicant and his wife separated. On 14 January 2016, the applicant applied for a Protection (Class XA) Visa. The applicant’s estranged wife and his son were not named as secondary applicants to such visa application.
On 26 April 2016, the applicant attended an interview with a delegate of the Minister. The applicant attended such meeting with the assistance of an interpreter.
On 10 May 2016, a delegate of the Minister refused to grant the protection visa to the applicant.
On 31 May 2016, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.
On 1 May 2019, the applicant appeared before the Tribunal with the assistance of an interpreter proficient in the Punjabi and English languages.
On 26 July 2019, the Tribunal affirmed the delegate’s decision.
On 30 August 2019, the applicant filed an originating application for review of the decision of the Tribunal. The grounds for review in such application were extensive, as follows:
“Grounds of Application
1. The first respondent did not act in accordance with the law in reaching at a conclusion to refuse my protection (Class XA) subclass 866 visa application.
I submitted an application for a subclass 866 Protection visa claiming protection in Australia. Paragraph 36 (2) (a) of the Migration Act 1958 (Cth.) provides that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Refugee Convention as amended by the Refugee Protocol. An alternative criterion for a Protection Visa (paragraph 36 (2) (aa) of the Migration Act is that the applicant is a non-citizen in Australia (other than a non-citizen who meets the criteria in paragraph 36 (2) (a) of the Migration Act 1958 (Cth.) 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.
My immigration history:
I arrived in Australia with my wife on 25 Oct 2013 and was immigration cleared on a Student (Higher Education Sector) (class TU, subclass 573) visa. My wife lodged another student visa application onshore on 27 May 2014 and included me in that visa application being a spouse. Our student visa application was refused on 1 Jul 2014. Our first student visa was cancelled on 8 Oct 2014. On 26 Mar 2015, Migration Review Tribunal outcome received - no jurisdiction to review cancellation of our student visa. 22 Apr 2015, we requested Ministerial Intervention of our student visa cancellation decision. 8 May 2015, Ministerial Intervention outcome - no power to intervene. 10 Jul 2015, child born in Australia. 30 Nov 2015, I got separated from my wife. 14 Jan 2016, I applied for a protection visa, which was refused by the department of immigration on 10 May 2016. The Administrative Appeals Tribunal affirmed the immigration department's decision to refuse me a Protection visa on 29 July 2019.
My claims for protection:
1. In 2012, I was involved in a land dispute with a local land mafia who want to encroach upon my family farm located at [Village A]. We are two children of our parents. I have a sister who is married and lives with her husband at her in-law's place. Being the only son, I am the sole heir of my ancestral property including the family farm situated at [Village A]. A local land mafia has been forcing us to sell our farm land at very cheap price. Our family has been doing farming since generations. The land mafia is planning to build a shopping mall at our land. Our land is strategically best piece of land for a commercial venture and have huge business potential. We have refused them not to sell our land. The land mafia is led by a local man named Jagdish, who is well connected with the then ruling Shiromani Akali Dal party in Punjab and enjoys patronage of senior politicians. The land mafia threatens poor and marginal peasants to sell their land for cheap to them and then they build multi million commercial real estate at the grabbed land and earn a lot of money. We have been threatened by them to sell the land or face dire consequences. They have even registered a false case against me. They tried to pressurize me by using different tactics. My wife came to study in Australia and we left India amid these circumstances to avoid risk to my life and liberty.
2. Being the sole heir of our ancestral property including this farm, they have been targeting me including the threats to kill me if I do not succumb to their wishes. I was falsely framed in a police case at the behest of the land mafia. There had been few incidents of clashes with people of land mafia at two occasions. I was injured in those confrontations. They constantly threatened to harm me if I do not sell my land to them at their desired price. Police did not act upon my complaints and did not take any action against their wrong doings because the political interference and influence of powerful bureaucratic connections they enjoy.
Argument in support of my claims for protection in Australia
I have been living in Australia since 2013 and it has been now almost six years I am away from India. The delegate of the Minister and the member at the Tribunal has stated in their decisions that there are inconsistencies in my statements made to them. I contend that I have narrated my circumstances to the best of my knowledge and ability and truthfully. Since it has been a long period of time since I left India, there may be minor inconsistencies when narrating the incidents but I have tried my best to narrate my side of the matter in a truthful and correct manner.
The Tribunal noted its concerns, such as (1) why I have not been killed in the 19 months prior to coming to Australia, (2) why the land mafia has not falsified the documents of ownership in relation to my land with the help of officials to encroach upon my land, (3) why my uncle and mother, who still live in the village, has not been kidnapped, harmed or threatened them by now in order to force me to hand over the land, (4) why the land mafia has not kidnapped my son and wife in order to force me to sell the land?
I would like to submit to the Hon'ble Court that I do not have answers to such questions but I am certainly concerned about the risks to my life and liberty if I ever return to India. I submitted to the delegate and the member of the Tribunal that they are very powerful people. I even gave name of the kingpin of the land mafia. Tribunal has failed to correctly look at my case and apply provisions of humanitarian law as per the Refugee convention and as contained in the Migration Act 1958. It overlooked the gravity of the risks involved in returning to India and the threats I have been getting from the land mafia.
Assessment of protection obligations under the Refugee Convention and/ or under the Complementary Protection provisions as contained in the Migration Act 1958 (Cth.)
Article 1A (2) of the 1951 Refugee Convention as amended by the 1967 Refugee Protocol, provides that a 'refugee' is a person who;
........owing to well-founded fear of being persecuted for reasons of race, religion, nationality, member 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 beside outside the country of his former habitual residence, is unable or, owing to such fear, is willing to return to it.
In determining if the applicant faces real risk of significant harm, delegate is guided by MIAC v SZQRB [2013) FCAFC 33 (20 March 2013), Lander and Gordon J, which stated (in part):
In our opinion, the [real risk] test is for s36 (2) (a) [of the Act].....is there a real chance that SZQRB will suffer significant harm.... were he to return to Afghanistan. [246]
There is real possibility that I will be harmed if ever I return to India. I believe the land mafia will spot me even if I relocate to any other part of India and cause harm to me. I contend the harm feared is well founded as provided in the Refugee Convention.
Finding of the decision-maker
The delegate of the Minister refused to grant me a Protection (Class XA) visa concluding that he is not satisfied that there was no evidence of significant harm which I would suffer in the foreseeable future, if I ever return to India. I contend the decision-maker has ignored the legal provisions as provided in the 1951 Refugee Convention and in the Migration Act 1958 (Cth.).
I pray to the Hon'ble Court to set the decision of the Administrative Appeals Tribunal aside and direct the Department of Home Affairs (formerly Department of Immigration and Border Protection) to consider my claims and decide my visa application in accordance with the provisions of the relevant law, namely 1951 Geneva Convention on Refugees and the Migration Act 1958 (Cth.).”
At [6] of its reasons, the Tribunal set out the applicant’s claims as follows:
·“The applicant was born on 30 June 1990 in [Village A], Punjab, India. He is of Punjabi ethnicity and is a Sikh. He speaks, reads, and writes in Punjabi; he speaks and reads in Hindi.
·The applicant married his wife on 10 May 2013; as noted above they separated on 30 November 2015 in Australia. The applicant's wife and son (born June 2015) both currently live in Australia as well.
·The applicant has a sister and mother still living in India. The applicant indicates that he is not in contact with his relatives in India.
·He only lived in one residence in Punjab from birth until his departure from India. He completed secondary school in March 2009 and worked on his family farm as a labourer in India from 2009 to 2013.
·Although there are two children (the applicant and his sister), the applicant is the only son in his family, and is therefore the sole heir to the family farm. In 2012, the applicant became involved in a land dispute with local land mafia, led by a man named Jagdish (J) who is connected with the ruling Shiromani Akali Dal party in Punjab, and has the patronage of Deputy Chief Minister Sukhbeer Singh Badal.
·The land mafia are attempting to force the applicant to sell the family farm for a low price, so that they can build a large shopping centre on the land. The family land is strategically the best piece of land for a commercial venture and has a huge business potential.
·This is what the land mafia does; they threaten poor and marginal peasants to sell their land for cheap and then they build multi-million dollar real estate.
·They tried to pressurise him by using different tactics and the land mafia registered a false police case against the applicant in court, and framed him in a police case. They have threatened to kill the applicant if he doesn't sell this land.
·There were minor clashes between the land mafia and the applicant. At one time, members of the mafia came to the applicant's farm when he and some supporters from the village were present. The mafia attacked the applicant and his supporters with lathis, and injured the applicant and his friend. The mafia threatened to kill the applicant next time.
·The applicant reported the matter to the police, but the police would not prosecute the case. Instead, the police called the parties and brought them to the station, and organised an informal settlement and let everyone go without further charges. The police made the parties sign an apology and warned them not to engage in further disputes. The applicant states that the station officer is close to the mafia, so he supported them over the applicant and therefore did not bring a case against the mafia.
·The applicant has been "constantly threatened to sell my land at the behest of the land mafia".
·His wife came to study in Australia; they left India to avoid their problems. The applicant did not try and relocate because he came to Australia with his wife.
·The applicant fears for his life and liberty as a result of the clashes, and the political and police patronage of the mafia (there is a strong nexus between them). The applicant fears that, if he returns to India, the mafia will physically harm him and entangle him in false disputes until he gives in and sells the land. The applicant cannot seek police protection as the police are corrupt and connected with the mafia, as is the Deputy Chief Minister. The mafia will go to any length to achieve their designs and he fears a risk to life and liberty.
·The applicant cannot relocate within India, as he is only a farmer with little education. He therefore lacks any employment opportunities outside of Punjab.
·The applicant lived in Brisbane from October to November 2013, before moving to Innisfail from 2013 to 2015. The applicant then moved to Cairns, where he currently resides. He claimed that he had been unemployed since his arrival in Australia (October 2013) until the time he signed his protection visa application form.
·He stated that he has asked a friend of his to compile evidence of his clashes with the land mafia and statements of eyewitnesses and he will supply this detailed evidence to support his claims as soon as possible [this was not done].”
At [7] – [9] of its reasons, the Tribunal referred to various findings of the delegate to the effect that the applicants written claims and testimony ‘were vague and lacking in relevant detail, and were mutually inconsistent in key respects’.
At [16] – [38] of its reasons, the Tribunal considered at length all of the applicant’s claims as to why he claimed that he had a well-founded fear of persecution should he be returned to India. Having done so, the Tribunal found that there were five substantial bases for finding that the applicant was not a witness of truth. [1] The Court finds that the Tribunal’s said assessment of the evidence, as so particularised by it, and its subsequent analysis of such evidence, was logical, clear, and demonstrative of its having engaged with the applicant’s arguments. Though it didn’t agree with the applicant’s claims, it made its findings in a careful and considered way, for the reasons given by it. It was balanced in its assessment of the evidence put before it by the applicant.
[1] At [20] – [22] (1), [23] – [25] (2), [26] – [31] (3), [32] (4) and [33] – [34] (5) of the reasons of
the Tribunal.
It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] - [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
At [39] of its reasons, the Tribunal did not accept any of the applicant’s claims of past harm or future fears. Specifically, the Tribunal did not accept that the applicant’s family land had been targeted by ‘land mafia’; that the applicant had been targeted or threatened to be killed; that the applicant was subjected to pressure tactics and harm; that the applicant had attended at a police station to make a complaint only to have the police not act on the complaint; that the applicant was forced to enter into a settlement; that the applicant had suffered injustice because of political/mafia/police connections; that the applicant had had a false case or false charges brought against him; or that the applicant had stayed with other people because of alleged threats to him. The Tribunal did not accept that the applicant or his family had supported an opposition party, nor that the applicant had been adversely affected for any political reason. The Tribunal further did not accept that the applicant had left India because he feared harm, or for any related reason.
Based upon its findings as to the applicant’s claims relating to past events, the Tribunal did not accept that the applicant would face a real chance or a real risk of suffering harm or adverse treatment in the future for any reason.
At [43] of its reasons, the Tribunal found that the applicant’s evidence about his work on farms in Australia between 2013 and 2015 was incredible. The Tribunal recorded that though the applicant had said that he had worked on farms between 2013 and 2015, the applicant’s application form recorded that he had been unemployed during that period of time. When asked about that discrepancy, the Tribunal recorded that the applicant was evasive in his answers, his saying that he was not really sure if he worked or not.
At [35] of its reasons, the Tribunal noted that there was no medical evidence supporting any claim that the applicant had suffered from any mental health condition which would have relevantly impacted upon his claim.
On the question of the adverse findings by the Tribunal as to the applicant’s credibility, such findings were logically consistent with the Tribunal’s assessment of inconsistencies in the applicant’s evidence. The Tribunal was entitled to make the findings that it did and it did not err in doing so. The Court in that regard relies upon the decision of Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2001) 74 ALJR 405 at [67] per McHugh J where it was said:
“[67] In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim — a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”
The applicant’s grounds of review are largely historical and otherwise irrelevant to the issues at hand. The only discernible claim of substance is that articulated under the heading ‘Finding of the decision-maker’, but even that claim goes only to the applicant seeking a merits review of the decision of the Tribunal. Even if construed as an allegation of unreasonableness on the part of the Tribunal, the applicant’s claims do not get close to reaching the threshold for any such finding by this Court. The decision of the Tribunal could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
Further it cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
The applicant has not demonstrated that the decision of the Tribunal was affected by jurisdictional error.
The application for review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 25 February 2020
0
3
2