EDG17 v Minister for Immigration
[2018] FCCA 3336
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDG17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3336 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – procedural fairness – legal unreasonableness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 189, 422B, 424A, 425, 429A |
| Cases cited: AXD17 v Minister for Immigration & Anor [2017] FCCA 2081 |
| Applicant: | EDG17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1993 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 20 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| The Applicant: | In Person by video-link |
| Solicitor acting as Counsel for the First Respondent: | Ms Jackson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1993 of 2017
| EDG17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application for judicial review filed by the Applicant on 15 September 2017 wherein the Applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 22 August 2017 to affirm the decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The grounds of application are as follows:-
“1. The Purported Decision of the Administrative Appeal Tribunal on 22 August 2017 is legally unreasonable in that it is vitiated by Judicial Error and has denied me Procedural Fairness.
2. The Administrative Appeals Tribunal misunderstood my circumstances and the harm I will suffer if I am returned to the country of my nationality.
3. The Administrative Appeals Tribunal failed to take into consideration that Australia has non-refoulment [sic] obligations.
4. The Administrative Appeals Tribunal Ignored relevant information.
5. The Administrative Appeals Tribunal made findings on no facts of law.
6. The Administrative Appeals denied me the right to a fair hearing.”
The First Respondent seeks dismissal of the application and costs. The First Respondent argues that no jurisdictional error attends the decision of the Tribunal.
Background
The Applicant is an Indian citizen. He first arrived in Australia on
5 March 2009 as the holder of a student (subclass 572) visa. He was subsequently granted several further student visas, the last of which was valid until 22 May 2016.
On 23 January 2014, the Applicant departed Australia and returned to India, re-entering Australia on 14 March 2014. In August 2014, his education provider notified the Department of Immigration and Border Protection (‘the Department’) that he did not commence his course. In October 2014, his education provider notified the Department that it had cancelled the Applicant’s enrolment.
On 30 December 2014, the Applicant applied for a spouse (subclass 820) visa on the basis of his relationship with an Australian citizen. On 16 March 2015, a delegate of the Minister refused the Applicant’s application for the grant of a partner (temporary) (Class UK) (subclass 820) visa and also for a partner (residence) (Class BS) (subclass 801) visa, both of which the Applicant had applied for.
On 19 January 2015 prior to the delegate’s decision, the Applicant had been arrested by South Australian Police and charged with a number of criminal offences, being aggravated assault (four counts); unlawful sexual intercourse; failing to comply with a bail agreement (two counts); contravening the terms of an intervention order/program (two counts); and possession of a prescription drug, not being a drug of dependence. The Applicant was convicted by the District Court of South Australia on 2 October 2015 and sentenced to a term of imprisonment of six months and two weeks, but he was released immediately on account of time already served.
On 9 March 2016, the Applicant’s student (subclass 572) visa was cancelled by the Department. Upon that cancellation, the Applicant’s continuing presence in Australia became unlawful. On
20 May 2016, the Applicant was taken into immigration detention pursuant to s.189 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant thereafter applied for a bridging visa, which was refused on 6 June 2016. He sought a review of the decision to refuse him a bridging visa from the Tribunal, and on 17 June 2016, the Tribunal affirmed the decision to refuse the Applicant a bridging visa.
The Applicant was transferred to Christmas Island on 23 June 2016 and then to the Adelaide Transit Immigration Authority on 17 November 2016. He was scheduled to be removed from Australia on 22 December 2016, but on 21 December 2016, he lodged an application for a protection visa, which is the subject of these proceedings.
On 6 March 2017, a delegate of the Minister refused to grant the visa on the basis that she was not satisfied the Applicant was a person to whom Australia owed protection obligations. The Applicant sought review of the delegate’s decision on 9 March 2017 by lodging an application for merits review with the Tribunal.
The Tribunal
The Applicant attended hearings by video link on 5 and 27 July 2017 to give evidence and present arguments in relation to the issues before the Tribunal. He was assisted at those hearings by his friend and support person who made a closing statement to the Tribunal. Both hearings were conducted with the assistance of an interpreter in the Punjabi and English languages.
At the Tribunal hearing, the Tribunal discussed with the Applicant information contained in the Departmental file that appeared to be adverse to his case, and the Applicant responded to that information. Following the second hearing, and on 1 August 2017, the Tribunal wrote to the Applicant under the provisions of s.424A of the Act inviting his further response to, or comment on, the adverse information. The Applicant’s written response to the Tribunal’s letter was received on 7 August 2017 and taken into account by the Tribunal.
The Tribunal decision
In its Statement of Decision and Reasons (‘the Decision Record’) the Tribunal correctly set out the criteria for a protection visa as set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). The Tribunal set out both the refugee criterion in s.36(2)(a) and the complementary protection criterion in s.36(2)(aa) of the Act. The Tribunal also noted that it had, in accordance with Ministerial Direction number 56 made under s.499 of the Act, taken account of policy guidelines prepared by the Department, PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines together with relevant country information assessments prepared by the Department expressly for protection status determination purposes, to the extent that they were relevant to the decision under consideration.
The Tribunal set out accurately in paragraph 11 of the Decision Record that the issue in the case before it was whether the Applicant met any of the alternative criteria in s.36(2)(a), (aa), (b) or (c) of the Act.
The Tribunal noted in paragraph 17 of the Decision Record that on
1 August 2017 it had written to the Applicant pursuant to s.424A of the Act inviting his comment on information before the Tribunal which it considered adverse to the Applicant’s case. The Tribunal noted in paragraph 18 of the Decision Record that the Applicant responded to the Tribunal’s letter in writing on 7 August 2017, attaching a number of documents including an affidavit of Bikram Singh dated 7 August 2017, IHMS records and confirmation of his attendance at various courses offered through IHMS, and a letter from Old Port Chambers dated
6 October 2015 regarding his police matters.
The Tribunal, in paragraph 20 of the Decision Record, stated that:-
“… As discussed with the applicant at hearing, the Tribunal has significant concerns about the credibility of his claims for protection that have ultimately caused the Tribunal not to accept aspects of his evidence.”
The Applicant’s protection claims were as set out in paragraph 27 of the Decision Record and were as follows:-
“The applicant claims in essence to fear harm in India as a result of money he borrowed in order to fund his studies in Australia. In his protection visa application he states he borrowed a big sum of money from people including some of his own relatives promising to return money once he settled in Australia and got a reputable job. He states his circumstances prevented him from repaying the money so two years ago he visited India in order to sort things out with the people who had lent him money. He claims while in India his father and others threatened him, causing him to go into hiding at his grandmother’s house until he returned to Australia. He states that his family was constantly receiving threats from the lenders, causing his family to disown him and tell him not to come back to India ever again. He claims if he returns to India he will be abducted, tortured, physically harmed or killed by the people from whom he borrowed money. He claims he also fears harm from his father who threatened to shoot him if he returns to India because the lives of his father [and] other family members are at risk from people who lent the applicant money.”
The Tribunal accepted the Applicant’s personal background as provided by the Applicant, namely that the Applicant grew up in Tandi village in Kapathurla district of Punjab. His immediate family consisted of his parents, his elder brother and twin sister. His mother died in 2007, and his father remarried in 2010. The Applicant undertook matriculation at a private school and then completed years 11 and 12 at a government school. He undertook a Bachelor of Arts by correspondence as well as a Diploma in Computing from a local institution. He worked as a tutor in a school in a neighbouring village and also taught in a government primary school. He also played cricket and was selected to play for the country.
The Tribunal did not accept the Applicant came from a poor family or that he or his father borrowed money from relatives and others in the village to fund the Applicant’s studies in Australia. The Tribunal noted that the Applicant had given “inconsistent information” about his family’s financial background in his various visa applications. The Tribunal noted further that:-
“In written statements to the Tribunal and the department, the applicant describes his background is one of poor socio-economic circumstances in which his father is a retired Army officer and drunk who lost his retirement funds to unscrupulous individuals who promised him a working visa to America and lives in poverty.”[1]
[1] Decision Record, 31.
The Tribunal noted, however, that, as set out in paragraph 32 of the Decision Record, that the Applicant painted a “completely different picture” of his family’s financial circumstances in documents he supplied in support of his student visa application. In a handwritten statement lodged with his application for a student visa on 16 July 2012, the Applicant stated that his father was “well established, has a successful business and owns rural as well as urban property”. The Tribunal discussed this aspect of the Applicant’s claims at the hearing, and the Applicant responded that his student visa application was prepared by his agent and he simply signed the prepared papers.
The Applicant claimed that the information he provided in his protection visa application was true and that his father got drunk and beat his mother and his children. In response to the Tribunal’s letter under s.424A of the Act, the Applicant stated that the handwritten statement was not actually written by him. Rather, he was reliant on the advice of his former agent in India. He stated that his former agent and his former agent’s colleagues and his father colluded with his agent in Australia to gather all necessary information and prepare the student visa application on his behalf. The Tribunal did not accept the Applicant’s statement that others had prepared his statement without his knowledge. Rather, the Tribunal considered that the statement “was made by the Applicant personally and he has been untruthful in his evidence during these proceedings, and that reflects poorly on his credibility”.[2]
[2] Decision Record, 33.
Further, the Tribunal found, as set out in paragraph 34 of the Decision Record, that the Applicant’s evidence about borrowing money to fund his studies in Australia was entirely inconsistent with the documentary evidence produced in support of his student visa applications lodged in 2008 and 2011. The Tribunal noted the following as set out in paragraph 34 of the Decision Record:-
“As discussed with the applicant at hearing, financial documents submitted in support of his first student visa application indicate that the applicant demonstrated his financial capacity by providing details of funds held on deposit by his father Tarsem Singh in the Punjab National Bank. The documents record the term deposit for 340,000 Indian rupees was opened on 9 June 2006 at an interest rate of 8.5%, and a confirmation of deposit of 325,000 Indian rupees was issued on 7 September 2007. … In a later student visa application lodged 22 June 2011, the applicant provided evidence of a term deposit held by the Oriental bank of commerce in Gurdaspur of Rs.13,35,000 at an interest rate of 9.25 per cent, and that a further amount of Rs.12,00,000 was available as an overdraft loan to Mr Tarsem Singh. A translated copy of an agreement for sale was also provided, indicating that Mr Singh sold a plot of land for Rs 22,50,000 on 14 July 2011.”
Both at the hearing and in response to the Tribunal’s letter under s.424A of the Act, the Applicant stated that he was not aware his father held monetary and real estate assets at the relevant time. Rather, the Applicant stated he was simply advised by his father that they would finance his studies in Australia by seeking a personal loan. He claimed that at no time was he aware of his asset backing or wealth.
The Tribunal did not accept the Applicant’s evidence concerning his father’s asset backing or wealth and his awareness thereof. The Tribunal considered it “implausible” that his father would withhold from the Applicant information about the family’s financial position and require him to go through the process of borrowing money to fund his studies but then provide the Applicant’s agent with documents showing he, in fact, had capacity to fund those studies. The Tribunal considered the financial documents provided in support of the Applicant’s student visa application, which showed the Applicant’s father held sufficient assets to funds his Australian studies without borrowing money from others, and that those funds were held for at least two years prior to the Applicant’s first student visa application (lodged in 2008) were accurate and known to the Applicant. The Tribunal considered the Applicant had been “untruthful in his evidence during these proceedings about his family’s financial position”.
The Tribunal noted further, as set out in paragraph 37 of the Decision Record, that the Applicant first arrived in Australia on 5 March 2009 but did not make any claims for protection until 21 December 2016. At the hearing, the Applicant told the Tribunal, when the Tribunal questioned the Applicant as to this matter, that he did not make his claims earlier because he was studying and expecting to be sponsored for a permanent visa to Australia. In response to the Tribunal’s letter under s.424A of the Act, the Applicant stated that “he did not apply earlier because he did not know a protection visa existed and this is consistent with his cultural background given India is a country where little protection is provided by the authorities”. The Tribunal considered the Applicant’s explanations but, taking those explanations together with the other concerns the Tribunal had about the Applicant’s credibility, the Tribunal did not accept the Applicant had a subjective fear of returning to India.
The Tribunal also at hearing discussed the issue of the Applicant’s convictions with him and again drew those matters to the Applicant’s attention in a letter from the Tribunal to the Applicant under s.424A of the Act. The Tribunal considered the Applicant’s responses both at the Tribunal hearing and his written response to the s.424A of the Act notification but considered the Applicant to have “little respect for Australian laws and this reflects poorly on his credibility”.
The Tribunal gave little weight to various statements of the Applicant, his cousin, and his father, given the Tribunal’s very serious concerns about the credibility of the Applicant’s claims. The Tribunal said at paragraph 39 of the Decision Record that:-
“While the Tribunal accepts that a classified advertisement was placed in an Indian newspaper indicating that the applicant’s father has disowned him, it considers this was done for the purpose of embellishing the applicant’s claims and does not reflect the true state of their relationship.”
The Tribunal said, in summary, at paragraphs 40 and 41 of the Decision Record:-
“40. For all of these reasons the Tribunal does not accept the applicant to be a credible witness. It does not accept he or his father borrowed money from people in his village or family members to fund the applicant’s Australian studies. It does not accept any of those people threatened the applicant, his father, or any other member of the family when those moneys were not repaid. The Tribunal does not accept the purpose of the applicant’s return to India in 2014 was to try and negotiate with the lenders, nor does it accept that he was threatened with harm by his father, the lenders or any other person as a result of money borrowed. It does not accept that the Applicant went into hiding while in India, nor that he returned to Australia in fear of his life.
41. It follows the Tribunal does not accept the applicant’s father or any other person would seek to harm the applicant because of money borrowed for his Australian studies if he returns to India. For these reasons, the Tribunal does not accept there to be a real chance that the applicant would suffer serious harm for any reason relating to borrowed money if he returns to India now or in the reasonably foreseeable future.”
The Tribunal noted in paragraph 42 of the Decision Record that the Applicant raised a new claim at the hearing which was that he feared returning to India because of his past activities with the Jehovah’s Witness church in Australia. He claimed to have started attending that church in 2009 and being baptised into that faith in 2012. When asked by the Tribunal if he was still a Jehovah’s Witness, the Applicant responded that he was not; that he had not attended a Jehovah’s Witness church since 2012.
The Tribunal questioned the Applicant at some length about his religious beliefs, the Applicant describing them, at the time of the Tribunal hearing, as being those in accordance with the Sikh religion. When asked by the Tribunal if he followed the Sikh religion at the time of the Tribunal hearing, the Applicant stated that “it was not really a religion but a way of life” and that he still followed his Sikh religion and had all his holy books. He said if he returned to India, he would pray in his own way.
The Tribunal noted that the Applicant had last attended at a Jehovah’s Witness church in 2012; that his evidence at hearing indicated he was now a practising Sikh; and that, in his protection visa application lodged on 21 December 2016, he stated his religion as Sikh. The Tribunal found the Applicant would seek to practise that religion if he returned to India.
The Tribunal found that the Applicant did not have a well-founded fear of persecution for reasons relating to the Jehovah’s Witness faith if he returned to India now or in the reasonably foreseeable future, and that there was not a real chance he would be harmed by his father or any other person for a reason of his past involvement with the Jehovah’s Witness church if he returned to India now or in the reasonably foreseeable future.
The Tribunal considered the complementary protection criterion and, for the same reasons as set out when considering the refugee criterion, the Tribunal did not accept there to be a real risk that the Applicant would face significant harm if he returned to India.
On 15 September 2017, the Applicant applied for judicial review of the Tribunal decision. The Applicant filed an affidavit sworn 14 September 2017 on which he sought to rely which annexed a number of documents which were not before the Tribunal. The Court does not admit those documents into evidence, the Applicant seeking to place new evidence before the Court for the purposes of inviting the Court to disagree with the factual conclusion reached by the Tribunal.[3]
[3] MZXHY v Minister for Immigration [2007] FCA 622, 8.
Consideration
No jurisdictional error attends the decision of the Tribunal for the reasons which follow.
The Tribunal’s invitation to comment sent to the Applicant complied with the applicable statutory regime, and the Applicant was afforded procedural fairness. The Applicant filed a further amended application on 9 May 2018. No amended application was filed prior thereto. The further amended application contained seven grounds, and those grounds are as annexed to these reasons (‘Annexure A’). The Tribunal carefully considered the protection claims of the Applicant and the validity of such claims and made findings open to the Tribunal on the evidence before it.
Section 422B of the Act provides that Division 4, Part 7 of the Act is an exhaustive statement of the requirements of natural justice in relation to the matters it deals with. The Tribunal complied with the requirements in Division 4, Part 7 of the Act, and there was no breach of the procedural fairness requirements by the Tribunal. The Tribunal is expressly empowered to allow an appearance by closed-circuit television or any other means of communication under s.429A of the Act, and it was not a jurisdictional error for the Tribunal to proceed by video link in the hearing of the matter.[4] The Applicant was afforded a real and meaningful opportunity to give evidence and present arguments as required by s.425(1) of the Act.
[4] MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87, 30.
The Tribunal clearly put information to the Applicant for comment in accordance with s.424A of the Act, providing clear particulars of the information that it had noted and conveying to the Applicant how it was that the Tribunal considered that information may be relied upon by the Tribunal.
Ultimately, the Tribunal decision turned on adverse credibility findings in relation to the Applicant’s individual claims. There was a proper evidentiary basis for the Tribunal in the making of those findings.
Ground one
The first ground alleges that there was not a sufficient logical or evidentiary basis for the Tribunal to find the Applicant was not a Christian. This ground cannot be made out. The Tribunal thoroughly considered the claim as put before it by the Applicant. The Tribunal’s finding of fact in respect of that claim cannot be characterised as one no rational or logical decision-maker could have arrived at on the same evidence.[5]
[5] Minister for Immigration v SZMDS (2010) 240 CLR 611, 130.
Ground two
This ground also cannot succeed. The Tribunal did not make any finding under s.5J(6) of the Act. The Tribunal found that the Applicant was no longer a Jehovah’s Witness, and it did not seek to impugn the Applicant’s conduct in Australia because of the “bad faith” provision in s.5J(6) of the Act. As submitted by Counsel for the First Respondent, having found that the Applicant did not have a well-founded fear of persecution pursuant to s.5J(1) of the Act, the Tribunal was not required to go on and assess whether the conduct was engaged in for the sole purpose of strengthening the Applicant’s refugee claims.
Ground three
This ground complained about the Tribunal’s complementary protection findings. This ground cannot be made out. The Tribunal correctly understood that the “real risk” test is the same as the “real chance” test provided for under the refugee criteria.[6] The matters relied upon by the Applicant were the same for Convention purposes and complementary protection purposes, and thus the Tribunal was entitled to rely on its Convention refugee criterion findings in assessing whether there was a real risk of significant harm.[7]
[6] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, 246.
[7] MZYXS v Minister for Immigration and Citizenship [2013] FCA 614, 31.
Ground four
The Applicant alleges the Tribunal fell into jurisdictional error by taking into account the Applicant’s criminal convictions when considering his credibility. The Applicant also alleges that the manner in which the Tribunal approached the matter also leads to the conclusion that the Tribunal decision is affected by apprehended bias. No aspect of this ground is made out. The Tribunal considered a number of factual matters before it, including the Applicant’s criminal convictions as but one when considering the Applicant’s credibility. The Tribunal’s findings of fact were open to it on the basis of the material before it which included inconsistencies and implausibility’s in the Applicant’s oral and documentary evidence, as referred to in the Tribunal findings set out above.
There is no basis on which to argue the Tribunal’s approach gave rise to a reasonable apprehension of bias. Information about the Applicant’s criminal convictions was put to the Applicant under s.424A of the Act. In any case, as submitted by Counsel for the First Respondent, there is nothing inherently prejudicial about the material and nor was it extraneous.[8]
[8] Webb v R (1994) HCA 30; AXD17 v Minister for Immigration & Anor (2017) FCCA 2081.
Ground five
The Applicant’s fifth ground asserts that the Tribunal failed to consider whether the Applicant faced a real chance or real risk of harm upon return to India as a convicted sex offender.
The Applicant made no claims of this type, nor did such a claim squarely arise, nor indeed at all on the material before the Tribunal.[9]
[9] NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, 61.
Ground six
The Applicant contends that the Tribunal failed to consider his claim that he would suffer harm on return to India by reason of his mental and physical condition, and relies on his submissions of 13 May 2017 made under the heading “Further impediments to return”. In that submission, the Applicant claimed:-
a)he would have no accommodation available to him and little or no family support, at least until his loan was repaid, and, because of the employment situation in India, he had little hope of earning enough to repay the debt;
b)he was suffering from depression by reason of his circumstances and was currently on a course of medication for depression and sleeplessness which would hamper his ability to repay the debt.
Given the Tribunal’s rejection of the Applicant’s claim that he owed money to people in his village and to his own relatives, the Applicant’s subsistence claims have no basis. Further, the Tribunal did not accept the Applicant’s family were poor, and found the Applicant had been untruthful about his family’s position as described in the reasons above.
The Tribunal noted in its Decision Record that it had regard to the IHMS medical report of 11 May 2017 which included a list of the medication the Applicant had been prescribed for depression and insomnia. The Tribunal had regard to those matters when assessing the Applicant’s credibility. Further, the Tribunal had made a finding that the Applicant would not have to repay any debt and thus the Applicant’s mental health state, which would lead to his inability to repay the debt, was not a necessary consideration for the Tribunal because the Tribunal had rejected the factual premise upon which the contention rested.[10]
[10] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, 47.
Ground seven
This ground also cannot be made out. The Tribunal properly considered the documentary and witness evidence before it.
In respect of the Applicant’s various documents, the Tribunal expressly had regard to the evidence before it and referred in its Decision Record to declarations by his cousin, father, and a newspaper advertisement. Because of its credibility concerns, the Tribunal gave those documents little weight. That was a matter for the Tribunal. The Tribunal was under no duty to seek further information about the authenticity of the documents.[11]
[11] Minister for Immigration and Citizenship v MZYCE [2010] FCA 767, 37.
In relation to the witnesses, the Applicant asked the Tribunal to hear evidence by telephone from his cousin. The Tribunal set out in its Decision Record that it had attempted to call the cousin on multiple occasions during the hearing (to no avail) and gave the Applicant an opportunity to produce a statement from his cousin after the hearing. Further, as submitted by Counsel for the First Respondent, the Applicant’s “witness contact list” at page 455 of the Court Book did not constitute written notice of a request to hear oral evidence from witnesses for the purposes of s.426 of the Act. The Tribunal was otherwise under no duty to call additional witnesses or seek further evidence to support the Applicant’s case.[12]
[12] Minister for Immigration and Citizenship & Anor v SZIAI (2009) 259 ALR 429.
Ground eight
The Applicant’s eighth ground complains about the loss of his USB by Serco and the claimed privacy breach that occurred as a result. The affidavit filed by the Applicant on 9 May 2018 purports to contain the contents of the USB.
Again, the documents and information in the Applicant’s affidavit were not before the Tribunal, and thus the Applicant seeks to put new evidence before the Court. To the extent that the ground complains about a claimed privacy breach, as submitted by Counsel for the First Respondent, it is well established that the Court does not have jurisdiction under s.476 of the Act to deal with this matter.[13]
[13] SZWCP v Minister for Immigration and Border Protection [2015] FCCA 802; BNC15 v Minister for Immigration and Border Protection [2017] FCCA 2094 (affirmed on appeal); BTA15 v Minister for Immigration and Border Protection [2017] FCCA 417 (affirmed on appeal).
With none of the grounds being made out, the application will be dismissed and costs shall follow that dismissal.
I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 16 November 2018
Annexure A
Ground 1: There was not a sufficient logical or evidentiary basis for the Tribunal to find the applicant was not a Christian after finding the applicant was baptised, attended Christian classes and church services
1. There was not a sufficient logical or evidentiary basis for the Tribunal to find that the applicant was not a Christian at [42], of the decision record with regard to the refugee criterion and at [47] of the decision record with regard to the complimentary criterion, in light of evidence submitted to the Tribunal by the applicant particularised below from After the Tribunal accepted the applicant was baptized, attended Christian classes and church services at [42] of the decision record
Particulars
a)At [2] of the decision record, the applicant is a citizen of India. The applicant claims protection in the Commonwealth of Australia (Australia) based on his religious conversion from Sikhism to Christianity, which is prohibited in India carries public torture and significant harm from the family side.
b)The applicant also claims in essence to fear harm in India as a result of money he borrowed in order to fund his studies in Australia. In his protection visa application he states he borrowed a big sum of money from people including some of his own relatives promising to return money once he settled in Australia and got a reputable job he stated his circumstances prevented him from repaying that money.
c)The applicant provided to the Tribunal the following in support of money he was borrowed:
i)Stamped affidavit from district court of India - , page 47,48,49 of the Court Book;
ii)A News latter "UTAM Hindu" 51 of the Court Book;
iii)Stamped affidavit 53-55 of the Court Book;
iv)letters from the applicant's father at page 59,61-62,64-65 of the Court Book;
v)letters from International health and medical services (IHMS) 67,122,124,125-140 of the Court Book;
vi)A Statutory declaration from his cousin Page 115-116; of CB
vii)An article from the newspaper Hindustan time Page 118-120 of CB
viii)The applicant written statements (submission) Page 27-39 of CB
d)There was therefore an insufficient logical or evidentiary basis:
i)For the Tribunal to find that the applicant was not credible witness” at [33] of the decision record.
ii)For the Tribunal to find that applicant evidence about borrowing money to fund his studies in Australia is entirely inconsistent with documentary evidence produced in support of his student visa applications lodged in 2008 and 2011” at [34] of the decision.
iii)For the Tribunal to find that his father owned land or held these bank deposits” at [35] of the decision record.
iv)For the Tribunal to find that applicant has no subjective fear of returning to India” at [37]
v)For the Tribunal to give “limited weight to various written statements of the applicant's and his cousin that he was provided statutory declaration, because it finds that the applicant is not credible witness” at [39]
vi)For the Tribunal to find that applicant and his father did not borrow any money from people of village and family members” at [40] despite the above fact from the district court of India.
Ground 2: Misapplication of law or failure to ask the correct question regarding the appellants’ conversion from Sikhism to Christianity under section 5J(6) of the Migration Act 1958 (Cth) and the refugee criterion
2. There was not a sufficient logical or evidentiary basis for the Tribunal to find at [43] and [44] of the decision record that the applicant's for the tribunal to find the applicant is no longer and adherent of that faith and would not seek to practice that faith if he returned to India. The Tribunal therefore erred by misinterpreting, misunderstanding or misapplying the applicable law with regard to section 5J(6) of the Migration Act 1958 (Cth).
Particulars
a)At [42] At hearing the applicant told the Tribunal that he also feared returning to India because of his past activities with the Jehovah’s Witness church in Australia. He mentioned that he started attending the church in 2009 and was baptised into that faith in 2012.
Ground 3: Misapplication of law or failure to ask the correct question regarding the appellants’ conversion from Sikhism to Christianity under the complementary criterion
3(a): The Tribunal erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the applicant's conversion from Sikhism to Christianity with regard to the complementary criterion. The correct question before the Tribunal was not whether or not the applicant's is still practicing Jehovah’s Witness for the purposes of the complementary criterion. Rather, the correct question before the Tribunal was strictly whether the applicant faces a real risk of harm under the complementary criterion, given his conversion is punishable by death in Sikh community of India per se, irrespective of whether the conversion is genuine or disingenuous.
3(c): As a consequence, the Tribunal erred at [43] by simply adopting the reasoning under the refugee criterion and by failing to provide adequate reasoning regarding applicant conversion and the complementary criterion.
Ground 4: Irrelevant considerations - conflation of the applicant's criminal convictions with the testimony of the applicant
4. The Tribunal erred by taking into account irrelevantly, the applicant's criminal convictions vis-à-vis his Credibility and the evidence given by applicant in support of his application that he was borrowed money. The fact that the applicant was convicted of sexual offences was not probative of whether the applicant was truthful, what weight should be given to witness testimony or whether he faced serious or significant harm on the grounds that he was borrowed money. The manner in which the Tribunal dealt with the criminal convictions was highly prejudicial and irrelevant. It follows, on normal principles, that the decision of the Tribunal was affected by an irrelevant consideration or a reasonable apprehension of bias.
Particulars
a)On the 2 October 2015, the applicant was convicted by the District Court of South Australia and sentenced to a term of imprisonment of six months and two weeks (four counts); unlawful sexual intercourse; failing to comply with bail agreement (two counts) and possession of a prescription drug, not being a circumstances in his case.
b)ln response to the Tribunal's latter under section 424A, the applicant stated the assault charges were withdrawn, the breach of the intervention order and the breach of bail conditions relating to a stupid mistake rather than a malicious one, and although he was convicted of possessing steroids no penalty was imposed He sales his sexual partner was sixteen and a half and consenting and he acted naively, as the age of consent in south Australia is seventeen while it is 16 in other parts country.
c)He has had no prior conviction in India or Australia and has Jed a substantially law abiding life and has undertaken voluntary personal and character development programs while in detention. The Tribunal has considered the applicant response. However taken together with the Tribunal’s other credibility concerns, the Tribunal consider these matters indicate he has little respect for Australian laws and this reflects poorly on his credibility.
d)In the context-of the above particulars tribunal acted in highly prejudicial manner of saying that applicant has little respect for Australian laws thus. reflects poorly on his credibility, however the applicant is Indian citizen worked as a security officer in South Australia for “PLATINUM” Security company and Silver Security company recorded on “CB page 3l4”
e)In various occasion the Applicant putted his life in danger for in order to keep Australian community from bike’s gangs, violent people.
f)The Applicant has also served as security guard for the two prestigious schools in Australia to keep them safe from the risk of robberies, thefts and other suspicious activities. Therefore and in this context it was not appropriate for the Tribunal to say that applicant has little respect for Australian laws, and tribunal used that as an excuse that this reflects poorly on applicant credibility.
Ground 5: Relevant considerations - whether the applicant faces a real risk of harm due to the criminal convictions
5. The Tribunal committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant's claims, or an integer of those claims, raised by the evidence, albeit not expressly by the applicant, with regard to whether the applicant faces a real risk of harm due to his membership of a particular social group as a “convicted criminal”, “convicted sex offender” or “convicted child sex offender” under the refugee or complementary criteria.
Particulars
a)At [38] of the decision record, the Tribunal wrongly observed that “On 2nd of October 2015 the applicant was convicted of (four aggravated assault) and four counts of unlawful sexual intercourse under age of 17, “but”
b)In fact the applicant was convicted of (two counts of unlawful sexual intercourse) and two charges were withdrawn and the assault charges were also withdrawn by the district court “at page 95 of CB,
c)It was therefore an integer of the applicant's claims, raised by the evidence, albeit not expressly by the applicant, that he faces a real risk of harm based on his membership of a social group as a “convicted criminal”, “convicted sex offender” or “convicted child sex offender”.
d)The Tribunal therefore failed to consider relevantly at [38] whether the applicant faced a real risk of harm as convicted sex offender or child sex offender under the refugee criterion.
e)Similarly, the Tribunal failed to consider relevantly whether the applicant faced a real risk of harm as convicted sex offender or child sex offender under the complementary criterion.
Ground 6: The tribunal did not consider the applicant will suffer due to the issue of his mental health and physical treatment if send back to India.
6. The tribunal erred by not looking at the applicant's submission the claims that he was raised regarding his mental physical condition.
Particulars
a)At [47] of the applicant submission at page 33 of the CB, stated if he return to India he will essentially be homeless, as he won't have any residence or accommodation available to him.
b)At [48] there is no welfare support or social security to assist with his re-integration. At [49] applicant states won't receive any support available to him because of the situation until his loan is re-paid. [51] As he is further hampered by physical suffering from depression due to circumstances and worry. He is currently on course of medication for depression and sleeplessness. A latter confirming this is attached,” at page 67 of CB”
c)At [52] applicant expressed, should I return to India, these further impediments mean that I have little hope of re-paying may debt, and thus removing the risk to my personal security.
d)The supplementary information that applicant was provided in support of his application is at page 38 of CB.
Ground 7: Tribunal committed jurisdictional error by failing to complete the statutory task That the tribunal did not verify applicant's documents nor called his witnesses.
7. The applicant documents was simply be verified by the tribunal not verifying the applicant's Document tribunal denied procedural fairness.
e)At [54] of applicant's submission CB page 34 applicant mentioned I affirm that I have provided supporting documents with this statement are authentic therefore I give permission for the AAT member to inspect these original documents.
f)At [55] the applicant has also authorised the AAT to contact his witness, who can further attest to authenticity of the documentation tendered, and also confirm that claims that I have made in this statement. I further authorise the AA T member to contact any other parties not mentioned here, in order to verify my claims
g)Despite all the applicant 's effort the tribunal ignored the relevant facts and did not follow the correct procedural fairness which was needed to be done, by not following the correct statutory task the tribunal fallen into jurisdictional error.
I seek leave of the court (The applicant seeks an order under federal court rules 2011 (SLI NO 134 of 2011) - Rule 36.57
Section 27 of the Act allows the Court to receive further evidence on appeal
Ground 8: Applicant wants to rise and issue regarding the loss of his USB by Serco that placed applicant at serious risk, as his life history sensitive personal information was on that USB details are attached as an “Annexure 1” of his affidavit.
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