Ehj17 v Minister for Immigration

[2018] FCCA 1676

FEDERAL CIRCUIT COURT OF AUSTRALIA

EHJ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1676

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicant’s ground of review do not establish jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.33, 36, 116, 189, 476

Applicant: EHJ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2070 of 2017

Judgment of: Judge Hartnett

Hearing date: 21 May 2018

Delivered at: Melbourne

Orders made on: 21 May 2018

Reasons delivered on: 26 June 2018

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Kowalewska

Solicitors for the First Respondents: Australian Government Solicitor

ORDERS MADE 21 MAY 2018

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2070 of 2017

EHJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for judicial review filed 18 September 2017.  The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), which affirmed a decision of the Minister’s delegate not to grant to the Applicant a protection (Class XA) visa (‘the visa’).

2. The grounds of review, as set out in the application, are as follows:-

   “1. The application was not taken in consideration according to the law.

   2. The decision of Tribunal and Immigration Minister should be quashed.

   3. The decision of the Tribunal was irrelevant.

   4. The Tribunal did not consider the section of Migration Act 33(2) while making the decision.

   5. Definition of a refugee was not taken into consideration while delivering the judgement.”

   (Errors in original).

3. The First Respondent seeks dismissal of the application and costs. The First Respondent has filed written submissions on 7 May 2018. The Applicant filed no written submissions and nor did the Applicant file any amended application properly particularising his grounds of review. The Applicant was nevertheless given an opportunity to make oral submissions before the Court. The Applicant arrived to the Court late. As a consequence the Court had dismissed his application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). However the Court did not take out those orders, set them aside and proceeded to hear the Applicant’s case. The Applicant’s oral submissions thereafter did not address jurisdictional error nor why the Tribunal decision, in the Applicant’s view, was wrong in any relevant way.

4. Before the Court is also the evidence as contained in the Court Book filed 20 November 2017. 

Background

1. The Applicant is a citizen of India. He arrived in Australia on 28 February 2016 on a Higher Education Sector (TU573) visa as a secondary visa holder. 

2. The Applicant was charged with a criminal offence on 25 January 2017 and held on remand and on 7 March 2017 was convicted and sentenced to a 12 month community corrections order. The Applicant’s Higher Education Sector (TU573) visa was cancelled on 3 March 2017 under s.116 of the Migration Act 1958 (Cth) (‘the Act’), and on 7 March 2017 the Applicant was detained by the Department of Immigration and Border Protection (‘the Department’) under s.189 of the Act.

3. On 22 May 2017 the Applicant applied to the Department for the visa.

4. A delegate of the Minister of Immigration and Border Protection (‘the delegate’) refused to grant the visa on 6 June 2017. 

5. On 6 June 2017 the Applicant applied to the Tribunal for review of the delegate’s decision.  The Applicant provided to the Tribunal a copy of the delegate’s decision record, and this was thus information provided by the Applicant to the Tribunal.

6. The Applicant appeared before the Tribunal assisted by an interpreter by video link from the detention centre on Christmas Island on 17 August 2017 to give evidence and present arguments in relation to the issues in his case. 

7. On 22 August 2017 the Tribunal affirmed the delegate’s decision.  The Applicant lodged this application for judicial review in the Court within the required time limits.

Applicant’s Protection Claims

1. The Applicant’s claims for the visa were in a statement included with his protection visa application and were accurately summarised by the Tribunal in its Statement of Decision and Reasons (‘the Decision Record’) at paragraph 12 as follows:-

   “He met His wife on Facebook.  He started talking with her while she was studying in Ludhiana. She lived with her uncle and aunty.  After a while they got into a relationship and he used to visit her in Ludhiana.

   At first her parents and relatives did not agree to them marrying but somehow she convinced her parents to agree. However, her other family and relatives were not in favour.  Her uncle and aunty who she was staying with in Ludhiana and her other aunty and her cousin in Canada were against the marriage.

   They married on 4 March 2015. Her relatives were ‘pissed off’ because of the wedding and started threatening them. They decided to move to Australia to be away from them.

   While his wife was preparing for her ilets (sic) test her relatives attacked him to kill him but somehow he survived the attack.  He filed a police report against her family and they went to the magistrate’s court and his wife made a statement to the judge that they are scared of her family and relatives and fear for their lives.  The judge ordered that if something happened to them his wife’s family and relatives would be responsible.

   They stayed at an unknown place for some time and got an Australian visa and moved to Sydney, Australia.

   When they came to Australia his wife started talking to her family again and they started forcing her to leave him.  After a while they started arguing. She then moved to Melbourne without telling him.  She said she was going to Canada to visit her aunty but he found out from her emails that she had an offer from a college in Melbourne.  He called her and she said she can’t live without her relatives and parents and wasn’t happy with their marriage.

   After five days he came to Melbourne and found that she was living with her uncle.  He met her and tried to talk with her but she cut herself with a kitchen knife.  He grabbed the knife from her and threw it outside away from her. She called the police who found the knife and arrested him.  His fingerprints were on the knife.  He was sent to prison for six weeks.

   She called her family in India and told them he had attacked her.  After that one of her cousin’s, who is a member of a gang called Gandhi Group, went to his house in India with 10-12 guys and told his parents that whenever he finds the applicant he is going to kill him. His parents belong to Akali Dal and her family belongs to the Congress Party, which are rivals. In a recent election Akali Dal lost and Congress came into power. Her family has really good relations with Congress.  Her family knows he is getting deported and are making continuous threats to the applicant’s family that they are ready for revenge.  The chief of his village knows about the threats and also knows that it is not safe for him to return home.”

2. The Applicant also provided a copy of a research report on Honour Killings in Punjab State, India and three copies of an article on arranged marriage in India, and six copies of an article on murder associated with “love-related disputes” in India to the Tribunal as noted in paragraph 13 of the Decision Record.

The Tribunal

1. The Tribunal noted in paragraph 15 of the Decision Record that the Applicant attended an interview with the delegate via videoconference on 31 May 2017.  The Tribunal noted that it had listened to a recording of this interview.

2. As indicated in the delegate’s decision record, and referred to in the Tribunal Decision Record (paragraph 15), when queried by the delegate regarding his written statement that he was attacked by his wife’s relatives but was able to escape, the Applicant indicated that he was home with his wife when they heard some people knocking on the door.  He said his wife told him it was her cousin and that they should run.  So they ran off from the back door into the village.  When asked if anything else happened, the Applicant indicated that he was hit by a car driven by his wife’s uncle when he was riding a motorbike and was injured.  When asked why this incident was not included in his written statement, the Applicant indicated that someone assisted him with his application and advised him to tell some of his story in the written claims and tell the rest at interview.

3. The Tribunal noted further in paragraph 16 of the Decision Record that following the Applicant’s interview with the delegate, the Applicant submitted to the Department copies of affidavits from the Sarpanch (head) of his family village (Village Mehima, Tehsil Rajpura, District Patiala), his father and his mother, and translations of two reports dated 16 December 2015 by ASI Sohan Singh of the Kheri Gandian Police Station in Patiala District.

Findings

1. The Tribunal accepted that the Applicant is a citizen of India who arrived in Australia on 28 February 2016 as a secondary visa holder. He arrived with his wife whom the Tribunal accepted he had married in India on 4 March 2015. The Tribunal accepted the Applicant’s wife left him in November 2016 and moved from Sydney to Melbourne. The Tribunal further accepted that the Applicant tracked his wife down in Melbourne; that there was an incident; and that thereafter charges were laid against him. Otherwise, the Tribunal found the Applicant not to be a credible witness. Specific examples of deficiencies and inconsistencies in the Applicant’s evidence which supported the Tribunal finding were discussed in detail by the Tribunal in paragraphs 27 to 37 inclusive of the Decision Record.

2. The Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s.36(2)(a) of the Act and further, was not satisfied when considering complementary protection criterion, that the Applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act.

3. At the hearing before the Tribunal, the Applicant made further claims, including that following the first attack on him and his wife at his parents’ home there was a second incident in which a car carrying his uncle and aunt hit him while he was driving his motorbike.  He fell down, fractured his arm and spent five days in hospital.  This claim was not included in the Applicant’s written claims for protection.

4. The three affidavits which the Applicant provided to the Department following his interview with the delegate were in similar terms.  They indicated that the Applicant’s parents sent him away to save his life and to protect him from his relatives from his in-laws’ side.  The affidavits stated that these people threatened to kill the Applicant if he did not join the Congress Party and also that some relatives threatened to take their land away from them.  The affidavits stated that the Applicant was attacked on 1 November 2015 when he was working in the fields, was beaten with wooden sticks and baseball bats.  The affidavit stated that the Applicant was attacked a second time on 1 January 2016, when he was coming home from the village, when he was threatened to be killed and have the family land stolen. The affidavits stated that the police were not helping them, and that the only reason that these people wanted to steal the Applicant’s land was because, the Applicant refused to join the Congress Party and “they were in need of young people.” 

5. The Tribunal noted that the claims made in the affidavits provided by the Applicant were quite different to those made by the Applicant in his visa application, and during the hearing before the Tribunal. In particular, the affidavits did not mention various other matters claimed by the Applicant. When those omissions were put to the Applicant, the Applicant as stated in paragraph 31 of the Decision Record, commented that his parents arranged the documents and got what they thought would make him safe. He indicated that the affidavits were not a true account of what had happened.

6. The Applicant maintained at the Tribunal hearing that, his evidence, as provided at the hearing, was a true account of what happened to him, and that he is at risk in India because of his now estranged wife, who has told her family and relatives that he beat and attacked her, and because her relatives are Congress Party supporters. As the Congress Party came to power in Punjab in March 2017, he is at increased risk of being harmed.

7. The Tribunal did not accept the claims of the Applicant on the evidence before it.  The Tribunal did not accept that the Applicant was at risk due to any matter connected with his relationship with his wife, the breakdown of that relationship; and/or his conviction in March 2017. 

8. The Tribunal noted in paragraph 34 of the Decision Record that, when the Applicant was detained by the Department on 7 March 2017, he was interviewed by a compliance officer. The Tribunal noted the contents of the delegate’s decision record in this regard as follows:-

   “The decision record indicates that the applicant was asked at that time if there was any reason he could not return to India and in reply stated that ‘the only reason’ was that he does not have any money because he sold everything to come to Australia, and his parents are elderly.” 

9. The delegate’s decision record also indicated that the Applicant initially signed a request for voluntary removal, but subsequently changed his mind. The delegate’s decision record noted that when queried about this during an interview with the delegate, the Applicant indicated that he did not have any fears initially, but commented that his family supports the (former ruling) Akali Dal Party, and his wife’s family supports the Congress Party and when Congress won the recent Punjab State election, he claimed his wife’s cousins came to his family home and told his parents they “would not spare” him. When queried about this at the hearing the Applicant said that, the phone was very expensive when he was in jail, but when he was in immigration detention he spoke with his parents, who told him that his wife’s relatives were still looking for him, and had said that they were not going to leave him alone. He commented that he did not know what sort of fake charges they had put against him because his estranged wife had told them that he had “beaten her”.

10. The Tribunal found the evidence in paragraph 25 (above) unconvincing and noted that the information the Applicant claimed to have obtained from his parents was not included in the affidavits prepared and sworn by them.  Rather, what was noted was that the Applicant was threatened because he refused to join the Congress Party.

11. The Tribunal concluded that none of the key events and/or details in the Applicant’s account of his circumstances had been mentioned in the affidavits that were before the Tribunal, and the Tribunal did not accept that any of those events had occurred.

12. The Tribunal thereafter said relevantly in paragraphs 35 and 36 of the Decision Record, the following:-

    “ … The Tribunal does not accept that the applicant was threatened by his in-laws when he was in India or following his departure from India on 27 February 2016, or that he has been threatened by his in-laws since 7 March 2017 or when the outcome of the Punjab State election was announced on 11 March 2017.  The Tribunal does not accept that the applicant’s estranged wife’s cousin came to his family home with a group of men armed with sticks and baseball bats about a month after they were married in March 2015 looking to harm them, but they managed to run away, out the back door.  The Tribunal does not accept that a few months later around mid-2015 the applicant was run off the road by a car carrying his estranged wife’s uncle and aunt and was hospitalised as a consequence.  The Tribunal does not accept that, sometime prior to the applicant lodging his Protection visa application on 22 May 2017, one of the Applicant’s estranged wife’s cousins, who is a member of a gang called the Gandhi Group and associated with the Congress Party, came to his family home with 10-12 guys and told his parents that whenever he finds the applicant he is going to kill him, because the applicant’s estranged wife told her family that he attacked her (as claimed in the written statement included with his application).

    36. Accordingly, the Tribunal finds that the applicant is not a credible witness.  It is clear that he is prepared to have family members and others (his village head/Sarpanch) provide statements that he knows to be untrue in an attempt to further his claims. Given the applicant has admitted that his parents prepared false affidavits the Tribunal also finds that it cannot have any confidence that the claimed police reports of 16 December 2015 provided by the applicant to the Department are genuine, and accordingly the Tribunal gives these no weight.”

Consideration

1. Insofar as the application for judicial review relates to the delegate’s decision, it is incompetent, as pursuant to s.476(2) of the Act, the Court does not have jurisdiction in relation to primary decisions.

2. The Tribunal correctly stated the relevant legal principles for a protection visa, and it applied, correctly, such principles.  It did not fail to take into account any relevant considerations, and it did not take into account any irrelevant considerations.  The findings of fact made by the Tribunal were open to the Tribunal on the evidence before it and were arrived at upon careful consideration by the Tribunal which included a dialogue with the Applicant as to matters of concern to it.  The reasons of the Tribunal disclose no misapplication of the correct legal principles. Ground 1 cannot be made out.

3. Grounds 2 and 3 of the judicial review application are not proper grounds of review.

4. As to ground 4, there was no need for the Tribunal to consider s.33(2) of the Act, as that section relates to temporary special purpose visas. As submitted by the First Respondent, in the event the Applicant made a typographical error and meant to refer to s.36(2) of the Act which seems likely, the ground is without merit. The Tribunal referred to and considered the operation of s.36(2) of the Act in its Decision Record, and correctly applied the operation of s.36(2) of the Act to its findings of fact.

Ground Five

1. The Tribunal did consider whether the Applicant was a refugee within the meaning of the Act. It made adverse credibility findings in respect of the evidence given by the Applicant. Those findings as to credibility, were findings of fact clearly open to the Tribunal on the evidence before it which included evidence the Applicant admitted was false, and otherwise contradictory.

2. The Tribunal afforded the Applicant procedural fairness in its compliance with the statutory procedures required by Division 4 of Part 7 of the Act.

Conclusion

1. The Applicant’s grounds of judicial review, unparticularised so as to provide proper meaning, do not establish that jurisdictional error attends the decision of the Tribunal. Nor is there any obvious jurisdictional error on a reading of the Tribunal Decision Record, as a whole.

2. The application is without merit and is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  26 June 2018