DNM18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 428
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DNM18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 428
File number: SYG 1886 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 2 June 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Assessment Tribunal – refusal to grant protection visa – whether Tribunal failed to make findings in relation to complementary protection assessment –whether Tribunal took into account irrelevant considerations – whether Tribunal misconstrued applicant’s claims – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 36, 476, 477 Cases cited: Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
SZSGA v Minister for Immigration and Citizenship [2013] FCA 774
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 25 May 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr B Wilson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 1886 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DNM18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
2 JUNE 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
Before the Court is an application filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 6 June 2018 the Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (protection visa).
For the reasons explained below, I have found that there is no jurisdictional error in the Tribunal decision and I dismiss the application to the Court.
BACKGROUND
The applicant is a citizen of India who arrived in Australia in June 2009 as a dependent on his wife’s student visa. The applicant became an unlawful non-citizen in July 2012 and was located by immigration officials on 4 November 2014.
On 5 November 2014 the applicant lodged an application for a protection visa.
The applicant’s claims for protection were set out in a statement that accompanied his protection visa application. The applicant claimed to fear:
(a)harm from his family if he returned to India due to his conversion to Christianity;
(b)arrest by the police as a result of his association with his friend B, who was murdered, and B’s group, in circumstances where members of B’s group killed another person S as retribution for B’s death; and
(c)harm from his ex-wife’s family as a result of his separation from his ex-wife.
On 23 October 2015 a delegate of the Minister made a decision not to grant the applicant the protection visa.
The applicant then lodged an application to the Tribunal for review of the delegate’s decision on 12 November 2015.
On 5 June 2018 the applicant attended a hearing convened by the Tribunal to discuss his claims for protection.
On 6 June 2018 the Tribunal affirmed the decision of the delegate not to grant the applicant the protection visa.
TRIBUNAL DECISION
The Tribunal made adverse credibility findings against the applicant as a result of the delay in seeking protection after his arrival in Australia, the applicant’s immigration history, information provided by the applicant at a compliance interview the day before he lodged his application for a protection visa and various inconsistencies between his written claims for protection and his oral evidence to the Tribunal.
The Tribunal’s findings of fact were summarised at [40] of the Tribunal’s reasons. The Tribunal said:
The Tribunal therefore does not accept that the applicant is a genuine Christian, that he has experienced any harm on the basis of religious practice or that he will experience any harm on the basis of his religion if he were to return to India. The Tribunal accepts that the applicant may have attended in some religious activity in Australia across the whole gamut of religious belief, but does not accept that any serious harm will come from that participation. The Tribunal does not accept that the applicant has previously been threatened by his wife’s family over the dissolution of his marriage, and does not accept that he will be harmed by his wife’s family if he was to return to India. The Tribunal does not accept that the applicant was a member of a group of friends [B] or that he has been targeted by police or any of the friends of [S] as a result of [S]’s death. The Tribunal does not accept that the applicant will be harmed if he were to return to India. The applicant is not a witness of truth.
Based on these findings, the Tribunal was not satisfied that the applicant met the refugee criteria in s 36(2)(a) of the Migration Act. As the applicant’s claims were rejected on the basis that he was not a credible witness, the Tribunal also found that the applicant did not satisfy the complementary protection criteria in s 36(2)(aa) of the Migration Act.
PROCEEDINGS IN THIS COURT
The applicant commenced proceedings in this Court by way of an application filed on 6 July 2018, within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act.
The applicant advanced three grounds of application, reproduced below without alteration:
1.The Second Respondent Administrative Appeals Tribunal – Migration and Refugee (AAT) in addressing the Applicants claim for complementary protection failed to adequately consider the risk that the applicant will suffer significant harm if he returned to Indian
Particulars
Paragraphs 20 - 23
2.The AAT relied on irrelevant information when assessing the grounds for protection in relation the Applicants religious beliefs.
Particulars
Paragraphs 24 - 31
3.The AAT in addressing the Applicants claim misconstrued his claim in relation with [his friend B], and came to a conclusion that he would not be harmed through the situation which occurred in India.
Particulars
Paragraphs 34 – 38
On 8 October 2021 a Judge of this Court made an Order requiring the applicant to file and serve any amended application, any affidavits, any supplementary court book and written submissions by 8 December 2021. The applicant did not file any documents in accordance with this Order. The Minister filed an outline of submissions on 8 February 2022.
The applicant’s grounds were prepared at a time when the applicant was represented by a lawyer. That lawyer ceased acting for the applicant in April of this year and the applicant was self-represented at the hearing. Unfortunately, the grounds of application are not particularised in any way that would enable the Court to meaningfully understand the precise error alleged. The applicant was afforded an opportunity at the hearing to explain the grounds or otherwise tell the Court what he believes the Tribunal did wrong and I have taken his oral submissions into account in considering the grounds.
CONSIDERATION
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief by this Court, the applicant must establish that the Tribunal decision is affected by jurisdictional error. The Tribunal will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 (MZAPC) at [29].
The High Court identified a number of examples of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said at [14] that if the decision-maker:
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The examples of jurisdictional error set out in Craig are not exhaustive: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [81].
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the opportunity of a successful outcome: SZMTA at [45].
Ground 1
The assertion in ground 1 is that the Tribunal failed to adequately consider the risk that the applicant would suffer significant harm if he returned to India in assessing his claims for the purposes of the complementary protection criteria. Nothing raised by the applicant in his oral submissions directly related to this ground, so I can only understand this ground based on what is in the written application. The particulars of this ground set out in the written application simply direct attention to [20]-[23] of the Tribunal’s reasons. These paragraphs read:
20.Even if the Tribunal accepted that the applicant mistakenly thought that he was currently on a visa, and that such a visa would eventually provide a pathway to permanent residency in Australia so that he would not have to return to India, the Tribunal would reject such an explanation as a reason to adequately explain the delay in applying for protection. The applicant was on a temporary visa and there was no guarantee that he would be able to successfully remain in Australia. The Tribunal has difficulty accepting the applicant, who on his evidence left India because of what had happened to him and was fearful about a return to India, would leave things to chance by applying for temporary visas on the hope that he would eventually obtain permanent residency. Further, he had spoken to his brother in law who arranged for the applicant to see a migration agent for the 485 application. It is incredulous to believe that the applicant would not have said to this agent that he could not return to India and that agent not advise the applicant to apply for a protection visa.
21.That being said, the Tribunal does not accept that the applicant had any such belief that he was lawfully in Australia until compliance officers attended on him. As made clear in the compliance attendance on 4 November 2014, the applicant knew that he did not have a valid visa. He was in Australia unlawfully and liable to removal. The Tribunal has great difficulty in accepting that the applicant, who left in India and was fearful of returning, would remain unlawfully in Australia and not take steps to regularise his migration status and apply for protection here if his fear was genuine, especially given that he had the assistance of a migration agent organised by his brother in law.
22.Additionally, the applicant told the compliance officer that there was no reason he could not return to India. He was willing to depart and had the financial support of his parents. This was in conflict with the evidence he gave to the Tribunal that he could not return to India. It was the following day that the applicant lodged his protection visa application after speaking with a new migration agent. The applicant told the Tribunal that he spoke to the agent and asked how he could remain in Australia and was advised that the only option was a protection visa.
23.The Tribunal was concerned by the applicant’s evidence about the delay in protection, his contradictory evidence about whether he knew he was on a visa or was unlawfully in Australia, and his evidence to the compliance officer that there was no reason that he could not return to India. The Tribunal has considered these matters when determining the applicant’s claims.
As can be seen from this extract, these paragraphs do not directly address the Tribunal’s assessment of the applicant’s claims under the complementary protection criteria and instead address the reasons for rejecting the applicant’s credibility, insofar as they relate to his immigration history.
As summarised above, the Tribunal made adverse credibility findings against the applicant and based on these adverse credibility findings, rejected most of the factual basis of the applicant’s claims. The adverse credibility findings were based not only on the Tribunal’s concerns arising from the applicant’s immigration history and the delay in seeking protection, but were also based on inconsistencies between his written claims for protection and the evidence that he provided to the Tribunal at the hearing.
The adverse credibility findings and the factual findings made by the Tribunal were open to it on the evidence before it. The Tribunal relied on these findings in concluding that the applicant did not meet the complementary protection criteria. This conclusion is expressed at [43], where the Tribunal said:
The Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) because his claims have been rejected by the Tribunal on the basis that the applicant is not a credible witness.
There is no error in the Tribunal relying on its earlier factual findings for the purpose of reaching its conclusion that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act: see SZSGA v Minister for Immigration and Citizenship [2013] FCA 774 at [56]. I do not accept the assertion in the written application that the Tribunal failed to adequately consider the applicant’s complementary protection claims.
Ground 1 is not established.
Ground 2
The assertion in ground 2 is that the Tribunal relied on irrelevant information in assessing the applicant’s claims based on his religious beliefs. The particulars again simply refer to particular paragraphs of the Tribunal reasons, in this case [24]-[31], and do not identify which information relied on by the Tribunal is said to be irrelevant information that the Tribunal was precluded from taking into account.
The applicant in his oral submissions did not identify any irrelevant information relied on by the Tribunal, but did make some submissions in relation to his claims based on his conversion to Christianity. The applicant submitted to the Court that his parents believed in Hinduism, but he started to go to church in Australia. He submitted that the Tribunal did not consider his claims based on Christianity. He said that he believes in Christianity and wears a cross. He further said that he is not a good Christian at the moment but it takes time. It is convenient to consider these oral submissions in conjunction with ground 2.
The applicant’s submission that the Tribunal did not consider his claims based on Christianity cannot be accepted. The Tribunal specifically considered the applicant’s claims to fear harm on account of his conversion to Christianity at [24]-[31] of its reasons.
The Tribunal summarised its understanding of the applicant’s written claims in relation to his religious beliefs at [25] of its reasons, where it said:
25.In his written application, he claimed that he was born into a Hindu family and that after he arrived in Australia he was introduced to Christianity. He ‘converted’ but was discriminated in Australia by his close friends from India who he was living with and was asked to leave the house where he was sharing. He stated that he informed his family about his conversion and that his family did not take it easy and that his father no longer spoke to him as a consequence. He said that he was publically disowned by his father and would not share in the family inheritance.
Having reviewed the applicant’s written statement that accompanied his protection visa application, I am satisfied that the summary of the written claims at [25] is accurate.
The Tribunal then addressed the oral evidence given by the applicant at the hearing at [26]-[30]. In these paragraphs, the Tribunal recorded that the applicant told the Tribunal that:
(a)he had never been publicly disowned by his father or disinherited;
(b)during his time in Australia, he had attended Christian churches (although the Tribunal had concerns about inconsistent evidence over which churches he had attended), a mosque and a Sikh temple;
(c)in India, his Hindu parents also attended a Sikh temple;
(d)he is a spiritual person and that, in essence all religions are a different path to the one God;
(e)religious denomination did not matter to him but he tended towards Christianity;
(f)when he told his parents he attended Christian churches in Australia, they initially told him not to come back to India, but he did not believe they would harm him;
(g)in the last year and a half, things had changed and the applicant’s parents now wish for him to return to India and he speaks to both of his parents every day on the telephone;
(h)his parents now do not mind if he attends other places of worship but do not wish for him to actually change his religion;
(i)he did not experience any discrimination by his roommates in Australia due to his Christianity;
(j)he had not read the Bible and could not recite the Lord’s prayer;
(k)in response to the Tribunal’s basic questions about Christianity, he said that Good Friday was the day that Jesus was born again after three days, he did not understand the Holy Trinity but that it involved a sign of the cross, and some people say Jesus is God’s son while other people say Jesus is God; and
(l)he had not been baptised.
The Tribunal then expressed its concerns about the applicant’s evidence at [31], where it said:
31.The Tribunal has difficulty accepting that the applicant, who claims to be a Christian, could not tell the Tribunal some of the basic tenants of Christian practice. The Tribunal also finds it incredible that the applicant’s parents, who he described as strict Hindus, would be concerned about his religious practice when they themselves appear not to be dogmatic by attending a Sikh Temple in India. Further, the fact that the applicant told compliance officers on 4 November 2014 that he could support himself in Australia with money from his parents, despite his father apparently not speaking to him and disinheriting him, to be contradictory and incredulous. Finally, the applicant stated to the compliance officer In November 2014 that there was no reason he could not be returned to India, despite the applicant telling the Tribunal that he had only began speaking to his father some 18 months before the Tribunal hearing.
Ultimately, the Tribunal accepted that the applicant may have participated in some religious activities in Australia, but did not accept that he would face any serious harm as a result of this participation. The Tribunal did not accept that the applicant was a genuine Christian, that he had experienced any harm on the basis of his religious practice, or that he would experience any harm on the basis of his religion if he were to return to India: see Tribunal’s reasons at [40].
Whilst the applicant may not agree with the Tribunal’s conclusion, it cannot be said that it did not consider his claims based on Christianity. The Tribunal considered and rejected the applicant’s claims. In so doing, the Tribunal gave a logical and plausible justification for its findings and I am satisfied that the Tribunal’s findings were open to it on the evidence before it. Many of the oral submissions made by the applicant relate to the merits of his claims. As I explained to the applicant at the hearing, the Court does not consider for itself whether he meets the criteria for a protection visa and cannot make any findings about whether or not he is a Christian or would face harm as a result of his religious beliefs.
I am also unable to identify any irrelevant consideration taken into account by the Tribunal. In this regard, I accept the following submissions set out at [16] of the Minister’s written outline of submissions (footnotes omitted):
It was clearly open for the Tribunal to consider that inconsistent evidence had been given by the applicant in respect of whether his father had disowned him and what churches he had attended since arriving in Australia. It was open to the Tribunal to consider that it was “incredible” that the applicant’s parents would be concerned about his religious practices despite his evidence that his parents were not particularly dogmatic in their religious practices. It was also plainly open to the Tribunal to ask the applicant some basic questions about his knowledge and practice of Christianity, and to have concerns about his inability to answer them. Where an applicant makes a claim to be an adherent of a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what the person knows about the religion in order to assess the genuineness of the claim. This is not a case where it can be said that the Tribunal rejected that the applicant was an adherent of a particular religion or set of beliefs because of perceived deficiencies in his knowledge of religious doctrine by reference to a ‘preconceived minimum standard of knowledge’.
There is no jurisdictional error based on the Tribunal’s consideration of the applicant’s claims in relation to his religious beliefs and ground 2 is not established.
Ground 3
By ground 3, the applicant asserts that the Tribunal misconstrued his claims in relation to his friend B and concluded that he would not be harmed as a result of this. The particulars simply refer to [34]-[38] of the Tribunal’s reasons and do not identify in any way the manner in which the claims were said to be misconstrued.
In oral submissions the applicant said that there was a gang and one person was killed, and then another gang was targeting everyone. He also submitted that the Tribunal did not consider information about the fight and that the fight is on YouTube. His friends killed other people and they were put in a locker. The applicant also said in his reply submissions that he told the Tribunal that friends of the person who killed someone came to his house five or six times to look for him, beat him and hurt his family.
The Tribunal’s consideration of the applicant’s claims in relation to his association with B is set out at [34]-[38] of the Tribunal’s reasons. These paragraphs read as follows:
34.The applicant told the Tribunal that he was part of a ten person group of friends back in India. One of the friends was [B] who the applicant knew as ‘[B]’. The Tribunal could adequately described ‘[B]’ as a criminal thug. According to the applicant, [B] used to deal and sell drugs and beat people up for money. The applicant was friends with [B] and is associated with him, although the applicant said he never participated in any such activity. According to the applicant, [B] was killed in 2009 when he was on his way home from the gym. The applicant was not with [B] at the time.
35.As a result of [B]’s death, three friends killed [S], who was a member of a rival group of boys. This was done in retaliation for the death of [B] because it was believed that [S] had killed [B].
36.In his written application, the applicant stated that as the applicant was part of [B]’s friendship group, police had raided his home to arrest him but he was not at home at the time. The applicant claimed that he believed police would arrest him if he returned to India. He wrote that he was not involved in any criminal activity.
37.Again, the applicant’s written application was very different from the evidence he gave to the Tribunal. The applicant told the Tribunal that friends of [S] had come to his house 5 or 6 times when the applicant was in India looking for the applicant. These friends still came around looking for the applicant once every few months. He was fearful of those friends because he was associated with [B]. The applicant told the Tribunal that he went into hiding in India by staying for 15 days with his sister’s family at their house which is about an hour and a half away from where he was living with his mother and father in India to avoid [S]’s friends. The applicant said he left India because of the police involvement and to avoid [S]’s friends.
38.It is incredulous for the Tribunal to believe that the applicant, who had thugs coming around to his house 5 or 6 times while he was in India for which he avoid by going into hiding, and those attendances are continuing while he was in Australia, would omit this from his written protection application. The applicant’s written application only made mention of the applicant being a person of interest to police. The Tribunal was very concerned by such a glaring omission from his written application. The applicant was asked why the attendances at his house by [S]’s friends were omitted from his written application and he responded that he did not know, but the attendances were the truth. The Tribunal struggles to accept that these attendances, which clearly formed a basis for the applicant to leave India, would be left out by accident or omission by the applicant or his migration agent. The attendances seemed pretty important to the applicant’s claim for protection.
I have compared the Tribunal’s summary of the applicant’s written application for protection with the statement of his claims which is included in the court book. Based on this comparison, I am satisfied that the Tribunal did not misconstrue the applicant’s written claims relating to his association with B. There is no evidence before the Court, such as a transcript or an audio recording of the Tribunal hearing, to show what the applicant said in his oral evidence to the Tribunal. The onus is on the applicant to establish jurisdictional error: SZMTA at [41]; MZAPC at [2]. In the absence of evidence of what was said at the hearing before the Tribunal, I cannot find that the Tribunal misconstrued the applicant’s claims presented orally.
The applicant’s assertion in his oral submissions to the Court that the Tribunal did not consider the fight in which three of his friends killed a person fails on the face of the Tribunal’s reasons. The Tribunal clearly identified at [35] the claim that following B’s death, three friends killed S. I acknowledge that there is no reference to a YouTube video in the Tribunal’s reasons, but there is no evidence before me to suggest that a YouTube video was ever provided to the Tribunal. There is nothing said by the applicant in his oral submissions to the Court that would otherwise suggest that the Tribunal failed to understand his claims in relation to his association with B.
To the extent that the applicant’s oral submissions express disagreement with the Tribunal’s decision, they do not establish jurisdictional error. Again, the Tribunal has provided a logical and plausible justification for its findings, and the findings were open to it on the evidence before it.
Ground 3 is not established.
CONCLUSION
I have found that none of the applicant’s grounds, or anything said in his oral submissions, establishes jurisdictional error. As a result, I dismiss the application for judicial review.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 2 June 2022
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