DZZ18 v Minister for Home Affairs

[2019] FCCA 1247

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZZ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1247

Catchwords:
MIGRATION – Application for protection visa – adverse credibility findings – allegations of bias without justification – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 44A, 91Q, 424A, 476(1)

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: DZZ18

First Respondent:

Second Respondent:

MINISTER FOR HOME AFFAIRS

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 788 of 2018

Judgment of: Judge Egan

Hearing date: 8 May 2019

Date of Last Submission: 8 May 2019

Delivered at: Brisbane

Delivered on: 8 May 2019

REPRESENTATION

Applicant: In Person

Solicitor for the First Respondent: Mr Kyranis, Solicitor of Sparke Helmore

ORDERS

1. That the application for review filed on 3 August 2018 be dismissed.

2. That 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 788 of 2018

DZZ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Indonesia who arrived in Australia on 23 June 2016 as the holder of a visitor (class FA)(subclass 600) visa.  She arrived in Australia with her two children, neither of whom is a party to the proceedings. On 9 September 2016 the applicant lodged an application for a protection visa.

2. The applicant attended an interview before the delegate on 24 November 2016. At that time the applicant provided information to the following effect:

   a)She had not demonstrated and was not arrested.  Her husband had demonstrated but she did not remember when. Some people came to her house to look for her husband in January or February 2016.

   b)She worked at Alila Villas for eight years when one Mr Putu started to harass her at work, he asked her to be his girlfriend, he was polite when he spoke to her but he scared her.  She did not report his behaviour to management, and was unaware of any staff policy for managing guests who made unwelcome advances towards staff.

   c)She could live elsewhere in Indonesia but maybe that guy would look for her again. She had high hopes of remaining in Australia. She resigned from her job inappropriately which would make it hard for her to find employment again. On 20 January 2017 the Minister exercised his discretion under section 91Q of the Migration Act 1958 (Cth) (‘the Act’) to lift the statutory bar so as to allow her youngest son who was also a citizen of the United States of America to lodge a valid protection visa application.

3. On 28 March 2017, the delegate refused to grant the visa.

4. On 2 May 2017 the applicant applied to the Tribunal for review of the delegate’s decision. On 21 March 2018 the Tribunal invited the applicant to attend a hearing before it scheduled for 19 April 2018.

5. On 10 July 2018 the Tribunal affirmed the delegate’s decision under review. On 3 August 2018 the applicant filed an application for review pursuant to the provisions of section 476(1) of the Act.

6. At [6] – [10] inclusive of its reasons, the Tribunal set out the criteria for the assessment as to whether someone is a refugee, having a well-founded fear of persecution, who was a person to whom Australia owed refugee protection obligations. 

7. At [13] of its reasons, the Tribunal set out the applicant’s claims for protection as follows:

   ·“She left Indonesia because she wants to avoid a risk of being arrested by the Indonesian government. She attended a demonstration against government corruption in Indonesia.

   ·In September 2013, she and her husband attended a demonstration in Bali. They were both arrested by the Indonesian police. She was detained for one day and her husband was detained for three days. In August 2014, her husband left Indonesia.

   ·Mr Putu is a regular customer at the hotel where she worked. He heard her husband had left Indonesia and asked the applicant to be his girlfriend. She refused. Mr Putu is a gang member and threatened to kill the applicant. She was scared and reported to the police but they did not want to protect her because she had attended a demonstration.

   · If she returns to Indonesia, she faces the risk of being harmed or killed by Mr Putu and the Indonesian government will arrest her because she attended demonstrations against the government corruption.

   ·There is no safe place for the applicant in Indonesia.

   ·The authorities will not protect her if she does back and she will be unable to relocate.”

8. At [14] of its reasons, the Tribunal set out further information which had been provided by the applicant in relation to her claims as follows:

   ·“She did not demonstrate and was not arrested.

   ·Her husband did not demonstrate, but she cannot remember when.

   ·Some people came to the house to look for her husband. They stared at the house all day and asked for him in the evening. The last time they came was in January or February 2016.

   ·The applicant worked at Alilia Villas for eight years. They were good employers and gave her maternity leave of 12-weeks when her daughter was born.

   ·When Mr Putu started harassing her at work and asking her to be his girlfriend, she was polite but he scared her.

   ·The applicant did not report Mr Putu’s behaviour to the management. The applicant did not know if the company has a policy for managing guests who make unwelcome advances to staff.

   ·The applicant left Indonesia to come to Australia and left her job by resigning by email.

   ·The applicant stated that her son was born in the United States of America and has dual citizenship – US and Indonesian until he is 17 or 18, when he will have to choose.

   ·The applicant stated that she would not be able to return to employment at that hotel because she had resigned inappropriately which was not good for the company, and may make it hard for her to find employment again as it might affect her reference.

   ·The applicant stated she could live elsewhere in Indonesia, but she never had and that maybe Mr Putu would look for her again.”

9. The grounds for review set out in the application for review are as follows:

   “1. The decision of the Administrative Appeals Tribunal is affected by jurisdictional error in that it did not comply with its obligation to put adverse information relied upon as part of the reason for decision to the Applicant for comment, in accordance with S424A of the Migration Act 1958.

   2. The Tribunal failed to ask appropriate questions, and incorrectly applied the test.

   3. The Tribunal appeared to be biased.”

10. At [15] – [25] of its reasons, the Tribunal set out in detail the applicant’s claims of alleged harassment involving one Mr Putu, as well as the reasons for the applicant desiring to remain in Australia. 

11. At [16] of its reasons, it was noted by the Tribunal that at the commencement of the hearing before it the applicant confirmed that she had not been arrested whilst in Indonesia, and that she had not participated in any demonstrations as she had earlier claimed in her application to the department.  The Tribunal noted that it had asked the applicant why she had told the department something that appeared to be untrue, whereupon the applicant was recorded as having apologised, saying that she had just tried her best to stay here with her husband.

12. At [17] of its reasons, the Tribunal found that the applicant was prepared to tell falsehoods in furtherance of her protection visa claims.  It was noted that such a finding made it difficult for the Tribunal to place any significant weight on the remainder of the applicant’s claims, the Tribunal stating that it was difficult for the Tribunal to understand which of the applicant’s evidence was true and which was not.

13. At [26] of its reasons, the Tribunal found that the applicant was not a truthful witness and that her evidence could not be relied upon. The Tribunal accepted that a customer named Putu may have approached her and made her feel uncomfortable.  But it did not accept that that conduct placed the applicant in any danger, or that it was the reason that she left Indonesia.

14. The applicant, in that regard, acknowledged that her employer was part of a large international hotel chain that had provided her with maternity leave.  The Tribunal found that had the applicant taken steps to report the conduct of Mr Putu it was likely that hotel management would have listened to her concerns.

15. At [27] of its reasons, the Tribunal found that there was no real chance that the applicant or her children would suffer serious harm if returned to Indonesia. The Tribunal did not accept the applicant’s evidence in relation to her being in danger and likely to suffer harm, or that her children were in danger as a result of any involvement in demonstrations by her husband.

16. It was not satisfied that the applicant had a well-founded fear of persecution for those reasons. The Tribunal found that the applicants were not persons in respect of whom Australia had protection obligations under the Refugee Convention, and that the applicants did not satisfy the criteria as set out in section 36(2)(a) of the Act. When considering the complimentary protection criteria, there was no evidence before the Tribunal indicating that the applicants would be singled out or personally targeted if returned to Indonesia such that their human rights would be infringed.

17. For those same reasons as in respect of the finding in respect of there being no refugee obligation owed to the applicants, the Tribunal did not accept that the applicants were persons in respect of whom Australia owed complimentary protection obligations pursuant to the provisions of section 36(2)(aa) of the Act, which section provided as follows:

    “36(2)(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister had 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; or”

18. As to ground 1 of the application which refers to an alleged failure to comply with the provisions of section 44A of the Act, the ground is without particularity or specificity in that regard. However, the information relied upon by the Tribunal when reaching its decision was that contained in the applicant’s evidence to the Tribunal as well as the delegate’s decision, which information the applicant provided to the Tribunal with her application for review, such information falling within the exception to section 424A(3)(b) of the Act.

19. In those circumstances, there was no information which the Tribunal was required to give to the applicants for the purpose of comment or response.  Such ground is without merit. 

20. Ground 2 of the application for review contends that the Tribunal failed to ask appropriate questions. However, the Tribunal set out the applicant’s written and oral claims, and duly considered those claims against the relevant criteria contained in section 36(2)(a) and section 36(2)(aa) of the Act. There was no error on the part of the Tribunal in its approach to the claims made to it by the applicant.

21. Ground 3 of the application for review suggests that the Tribunal appeared to be biased.  No particularity is given as to the basis for such an allegation.  There is nothing on the face of the reasons of the Tribunal which suggests that the Tribunal was in any way biased.  The reasons reflected a reasoned approach to the claims made to the Tribunal.  The reasons were clear and concise and relevantly contained adverse findings on credibility.  No evidence of bias was apparent. 

22. It cannot be said that the Tribunal failed to make an obvious inquiry about a critical fact, as was the subject of consideration in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25]-[27] where French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said as follows:

    “[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.”

23. Further, it cannot be said that no other rational or logical decision maker could not have made the same decision as did the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    “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.”

24. Neither could the decision 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.”

25. The applicant has not demonstrated any jurisdictional error on the part of the Tribunal.

26. The application for review is without merit and is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  17 May 2019