DSJ16 v Minister for Immigration

[2019] FCCA 3447

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSJ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3447

Catchwords:
MIGRATION – Administrative Appeal Tribunal – application for a Protection (Class XA) visa – whether the Tribunal misunderstood the applicant’s claims and evidence – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 476

Applicant: DSJ16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3438 of 2016

Judgment of: Judge Street

Hearing date: 27 November 2019

Date of Last Submission: 27 November 2019

Delivered at: Sydney

Delivered on: 27 November 2019

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms C Juarez
MinterEllison

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 27 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3438 of 2016

DSJ16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 November 2016 affirming the decision of a delegate not to grant the applicant a Protection (Class XA) visa (“Protection visa”).

2. The applicant was found to be a citizen of Lebanon and his claims were assessed against that country. The applicant was also found to be a Sunni Muslim.

3. In September 2009, the applicant arrived in Australia on a prospective marriage visa. That visa ceased on 4 March 2010. On 26 March 2010, the applicant lodged an application for a partner combined visa based on domestic violence. That visa was refused on 8 July 2011 and the primary refusal decision was then affirmed by the Migration Review Tribunal on 16 December 2013.

4. On 16 January 2014, the applicant sought Ministerial intervention. On 8 September 2014, the applicant attended a community status resolution interview and stated that he would like to voluntarily depart Australia and return to Lebanon as there is nothing for him in Australia. The applicant requested his departure be organised within two weeks and he agreed to present his passport and plane ticket.

5. On 19 September 2014, the applicant applied for a Protection visa. The applicant claimed to fear harm from his ex‑father‑in‑law, who the applicant described as being his uncle and is hereafter described as such, and his uncle’s associates because of the marriage and divorce by the applicant of his uncle’s daughter and because of alleged fundamentalism by his uncle.

6. On 25 May 2015, a delegate made adverse credibility findings in respect of the applicant’s claim to fear harm from his uncle as a fundamentalist Muslim. The delegate found that the applicant had been unable to provide consistent claims about the matter and was not satisfied as to the veracity of the applicant’s claims. Accordingly, the delegate declined the applicant’s application for a Protection visa.

7. On 24 June 2015, the applicant applied to the Tribunal for review of the delegate’s decision. As a result of a request for a postponement, the applicant was invited by the Tribunal to attend a hearing on 18 November 2016. The applicant appeared on that date to give evidence and present arguments.

8. The Tribunal in its reasons identified the background to the application for review. The Tribunal summarised the applicant’s claims to fear harm. The Tribunal referred to the delegate making adverse credibility findings in respect of the applicant’s claims. The Tribunal summarised what occurred in the application for review. The Tribunal set out the relevant law.

9. The Tribunal found the applicant not to be a credible and truthful witness.

10. The Tribunal identified inconsistent evidence in relation to the applicant’s claims concerning his uncle. In that regard, the Tribunal referred to what the applicant said in relation to an incident involving his brother and uncle and when the applicant first became aware of the incident and threats by his uncle, compared with the content of the applicant’s application for a Protection visa.

11. The Tribunal referred to the applicant’s explanation. The applicant suggested that the representative might have included claims without his knowledge. The Tribunal did not accept the applicant’s suggestion that the representative had included information without his knowledge.

12. The Tribunal found that the applicant changed his evidence in relation to the timing of the incident to being a few days before he lodged his application for protection. The Tribunal put to the applicant the different evidence that the applicant had given to the delegate. The Tribunal found the applicant’s explanation to be inconsistent, unpersuasive and unsatisfactory. The Tribunal found that the applicant was prepared to tailor his answers in relation to the questions.

13. The Tribunal found that the applicant was unable to satisfactorily explain why his uncle wants to harm him. The Tribunal referred to the applicant’s divorce being finalised in 2011. The Tribunal also referred to the evidence the applicant had given as to having no contact with his uncle until the claimed threats at the time of lodging his application for protection.

14. The Tribunal referred to the applicant’s explanation. The Tribunal explored why the applicant’s uncle would want to harm him and referred to the applicant’s claims that his uncle had become more religious. The Tribunal found that the applicant provided no persuasive reason why his uncle had threatened him in 2014 or 2015 and why his uncle had any intention of harming him now.

15. The Tribunal also referred to the fact that the applicant did not claim that his uncle had seriously harmed any other member of the applicant’s extended family, except for the claimed encounter with the applicant’s brother.

16. The Tribunal found that the applicant’s evidence did not satisfactorily explain a motive for the applicant’s uncle harming him. The Tribunal did not accept that the applicant’s uncle ever intended or intends to harm the applicant.

17. The Tribunal referred to the applicant’s migration history. The Tribunal also referred to the applicant’s proposed voluntary departure upon attending the community status resolution interview.

18. The Tribunal put these matters to the applicant under s 424AA of the Act. The Tribunal referred to the applicant’s explanation. The Tribunal also referred to the applicant’s reference to being a diabetic and having blood pressure problems. The Tribunal did not find the applicant’s explanation to be satisfactory. The Tribunal found the applicant not to be a credible and truthful witness.

19. The Tribunal did not accept that the applicant’s uncle has targeted, harmed or harassed any member of the applicant’s family for any reason related to the applicant. The Tribunal did not accept that the applicant’s uncle had forcefully obtained the applicant’s telephone number in Australia from the applicant’s brother. The Tribunal did not accept that the applicant’s uncle had attacked, pushed or verbally abused the applicant’s brother for the reasons provided by the applicant. The Tribunal did not accept that the applicant’s uncle called the applicant in Australia to make threats against him. The Tribunal did not accept that the applicant’s uncle made threats against the applicant through members of his family in Lebanon. The Tribunal did not accept that the applicant’s uncle or anyone else will force him to adopt any particular interpretation of Islam.

20. The Tribunal did not accept that the applicant will be subject to any serious harm for any 1951 Refugee Convention reason if he were to return to Lebanon.

21. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk he will suffer any form of harm amounting to significant harm.

22. The Tribunal found that the applicant did not meet the criteria in ss.36(2)(a) or 36(2)(aa) of the Act.

23. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 6 December 2016.

2. On 13 April 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed an affidavit annexing the transcript of the review. No other document has been filed.

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant put submissions in support of his claims, including the suggestion that his representative had included information in his application without his knowledge which was rejected by the Tribunal.

5. The applicant also referred to his health and his family situation which invited the Court to determine the matter on compassionate grounds. This Court has no power to determine the matter on compassionate or discretionary grounds. The applicant’s submissions from the bar table invited the Court to engage in merits review. This Court can only grant relief if it finds relevant error in the conduct of the review of the decision of the Tribunal.

6. From the bar table, the applicant also sought to explain what occurred at the community status resolution interview and his initial willingness to depart for Lebanon.

7. The applicant’s disagreement with the Tribunal’s reasons does not identify any relevant error. The adverse credibility findings were open to the Tribunal for the reasons given by the Tribunal, which included the inconsistencies in the applicant’s evidence, want of plausibility and the applicant’s migration history, including what occurred with the community status resolution interview. The adverse credibility findings cannot be said to lack an evident and intelligible justification. The applicant’s submissions invited impermissible merits review and did not disclose any jurisdictional error in the conduct of the review by the Tribunal.

8. The Court has also taken into account the transcript which was filed by the applicant. The transcript, together with the reasons of the Tribunal, supports the applicant having had a real and meaningful hearing before the Tribunal and the Tribunal raising with the applicant the issues of concern in relation to the applicant’s credibility. The Tribunal made findings dispositive of the applicant’s claims.

9. No jurisdictional error arises by reason of the applicant’s submissions from the bar table.

Grounds of Application

1. The grounds in the application are as follows:

   1. The Tribunal Member misunderstood my fear of harm.

   2. The Member also did not find me to be a credible and truthful witness. Such comment is contrary to the evidence I gave.

Ground 1

1. In relation to ground 1, there has been no identified misunderstanding of the applicant’s claimed fear of harm. On the face of the Tribunal’s reasons, the Tribunal correctly understood the applicant’s claims and, for the reasons given by the Tribunal, made adverse findings which were open to it, as summarised above.

2. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant disagrees with the adverse credibility findings which, for the reasons already given and as summarised above, were logical, rational and open to the Tribunal. The applicant’s disagreement with the adverse credibility findings does not identify any relevant error.

2. No jurisdictional error is made out by ground 2.

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 27 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  13 February 2020