Esk18 v Minister for Home Affairs
[2018] FCCA 3432
•26 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ESK18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3432 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5J, 36, 425 |
| Cases cited: ASW17 v Minister for Home Affairs [2018] FCA 1815 |
| Applicant: | ESK18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRAIVE APPEALS TRIBUNAL |
| File Number: | SYG 2561 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 November 2018 |
| Delivered at: | Sydney via videolink to Brisbane |
| Delivered on: | 26 November 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Haddad of Clayton Utz |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2561 of 2018
| ESK18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 August 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 19 November 2018.
The applicant is a citizen of India who arrived in Australia on 27 April 2008 on a student visa. That visa was renewed in 2009 and ceased on 28 February 2011.[1]
[1] Court Book (CB) 143 at [2].
On 29 November 2010, the applicant married an Australian citizen.[2]
[2] Ibid.
On 10 November 2011, the applicant lodged an application for a partner visa which was refused by a delegate of the Minister.[3] On 22 January 2015, that decision was set aside and remitted to the Minister’s Department for reconsideration by the then Migration Review Tribunal.[4]
[3] CB 143 at [3].
[4] Ibid.
On 15 May 2017, the delegate refused to grant the applicant a partner visa on character grounds due to his criminal record.[5] On 29 August 2017, the Tribunal (differently constituted) affirmed the delegate's decision.[6] The applicant sought judicial review of Tribunal's decision in this Court. However, those proceedings were subsequently discontinued by the applicant.[7]
[5] CB 143 at [4].
[6] CB 143 at [5].
[7] Ibid.
On 11 April 2018, the applicant lodged an application for a protection visa.[8] On 28 May 2018, the delegate refused to grant the visa.[9] The applicant sought review in the Tribunal on 1 June 2018,[10] and on 8 August 2018, the Tribunal affirmed the delegate's decision.[11]
[8] CB 1-40.
[9] CB 64-77.
[10] CB 78-88.
[11] CB 142-151.
On 12 September 2018, the applicant commenced the present proceedings.
The applicant's protection claims
The applicant's claims are threefold. He claims to fear harm from:
a)his two paternal uncles, who he claims will kill him to prevent him from inheriting his late father's land, which they currently occupy (land dispute);
b)family members in India due to his "inter-religious" marriage between himself, a Sikh, and his Australian, nominally Christian wife (inter-religious marriage); and
c)authorities and society at large in India due to his criminal record in Australia, relating to sexual harassment and assault offences (Australian criminal record).
Tribunal's findings
The Tribunal identified the issue for determination as being whether the applicant is entitled to protection in Australia as a refugee or on complementary protection grounds.[12] The Tribunal formed the view that the applicant's protection claims were not credible.
Land dispute
[12] CB 144 at [15].
The Tribunal regarded the land dispute claim as having no nexus to a refugee claim under s.5J(1)(a) of the Migration Act 1958 (Cth) (Migration Act). It did however accept that the applicant is the heir to a parcel of land which was left by his late father in 2011. However, it did not consider the applicant's claim about the land dispute to be a truthful one.[13] The Tribunal based this conclusion on the applicant's unpersuasive testimony and the dearth of probative evidence in support of this claim.[14] In so finding, the Tribunal rejected the applicant's claims that his father was poisoned or murdered by the applicant's uncles and that his uncles had appropriated or misappropriated the land, or that they were intending to do so.[15]
Inter-religious marriage
[13] CB 149 at [46].
[14] See CB 148 at [41]-[42].
[15] CB 149 at [46].
The Tribunal accepted that the applicant is married to a nominally Christian Australian citizen, but the Tribunal was not satisfied that the applicant will face a real chance of harm due to his inter-religious marriage.[16] The Tribunal considered newspaper articles provided by the applicant which recounted instances of "honour killings" committed by family members against those who married inter-caste. However, the Tribunal did not consider the applicant's situation to be analogous, noting:
a)the applicant's wife was not a member of any Hindu or other caste;[17]
b)the applicant's claim that his family were boycotting him or posing a threat to his life and wellbeing over the marriage was vague and contradictory;[18] and
c)there was no evidence to suggest that his family objected to his marriage, let alone evidence that they would harm him or his wife.[19]
Australian criminal record
[16] CB 149 at [45].
[17] CB 145 at [25].
[18] CB 145-147 at [22]-[32]; 149 at [45].
[19] CB 147 at [31].
The Tribunal was not satisfied that the applicant would be prosecuted or re-prosecuted in India for any of the offences he had committed in Australia. The Tribunal noted that such a claim was inconsistent with section 300 of the Indian Penal Code, which prevents charges being laid for a second time in relation to offences tried and concluded abroad.[20] Further, the Tribunal was not satisfied that the applicant would be "remembered" to any significant degree in India despite his name being published in an SBS News article and Punjabi publications. Overall, the Tribunal considered these claims to be “baldly speculative and baseless”.[21]
[20] CB 147-148 at [37].
[21] CB 149 at [44].
The present proceedings
These proceedings began with a show cause application filed on 12 September 2018. The applicant continues to rely upon that application. The application states that the applicant’s grounds of review are set out in an accompanying affidavit. I received that affidavit as a submission. The affidavit contains numerous allegations of error which are summarised in the Minister’s submissions:
a)the Tribunal denied the applicant procedural fairness (Ground 1);[22]
b)the Tribunal made an error of law (Ground 2);[23]
c)the Tribunal took into account irrelevant considerations (Ground 3);[24]
d)the Tribunal's decision was unreasonable (Ground 4);[25]
e)the Tribunal failed to take into account relevant considerations (Ground 5);[26]
f)the Tribunal misapplied and misconstrued the real chance test and real risk test in s.36(2)(a) and (aa) of the Migration Act (Ground 6);[27]
g)the Tribunal failed to consider each of the integers of the applicant's claims in the context of the complementary protection criterion under s.36(2)(aa) of the Act (Ground 7);[28] and
h)the Tribunal's reasons are vague and fail to consider facts in a country information provided by the applicant (Ground 8).[29]
[22] Applicant's affidavit filed on 12 September 2018, 2 at [5], [15].
[23] Ibid [6].
[24] Ibid [7].
[25] Ibid [8], [11].
[26] Ibid [9].
[27] Ibid [12].
[28] Ibid [13].
[29] Ibid [14].
I have before me as evidence the court book filed on 29 October 2018.
I invited oral submissions from the applicant. He drew attention to his lack of legal assistance. He had communicated to my chambers previously seeking a transfer of proceedings to Brisbane, where he is located in detention, and the provision of pro bono legal assistance. I declined to transfer the case but gave the applicant the opportunity to appear by video link from the Court in Brisbane, which is what has occurred.
The question of pro bono legal assistance was considered very recently by the Federal Court in ASW17 v Minister for Home Affairs.[30] In my view, in this case the provision of pro bono assistance was not warranted for the purposes of today’s show cause hearing. The purpose of this hearing is to examine whether any arguable case of jurisdictional error is advanced by the applicant or is otherwise apparent. In my view, it would only be if some arguable case of error were identified that a serious question would arise concerning the provision of pro bono assistance for a final hearing.
[30] [2018] FCA 1815, in particular from [33] through to [40].
The applicant’s oral submissions were otherwise directed at the merits of his claim for protection. Those merits are beyond the scope of this proceeding. The grounds of review advanced by the applicant are addressed in the Minister’s submissions. I agree with those submissions.
Ground 1
The applicant's bare assertion that he was denied procedural fairness is without merit. There is nothing on the face of the Tribunal's decision record to suggest the Tribunal failed to discharge its procedural fairness obligations contained in Part 7, Division 4 of the Migration Act.
The applicant was given a meaningful opportunity to present evidence and arguments at the hearing in relation to the issues arising in connection with the decision under review in accordance with s.425 of the Migration Act.[31] There is no evidence to suggest that the applicant was disabled from effectively participating at the hearing.
[31] Minister for Immigration v SCAR (2003) 128 FCR 553 at [33], [37].
If, however, the applicant intends to complain that the Tribunal made different findings to the delegate, no error is made out. Indeed, the delegate was prepared to accept that the applicant's father was involved in a dispute with his brothers in relation to land which was left to them by their late father. The Tribunal, however, did not accept this claim to be "at all a truthful one".[32] Consistent with the principles in SZBEL v Minister for Immigration,[33] the applicant was made aware of, and given the opportunity to respond to, the credibility concerns that the Tribunal considered relevant by its departure from the delegate's reasoning regarding the land dispute issue. So much is clear by the questions the Tribunal records that it put to the applicant at [40]-[43] of the Tribunal’s reasons.
[32] CB 149 at [46].
[33] (2006) 228 CLR 152
Ground 1 demonstrates no arguable error.
Ground 2
Ground 2 is an unparticularised assertion that the Tribunal made an error of law. The lack of specificity as to what the error is (and indeed whether it is jurisdictional) does not assist the Court or illuminate the issue to any degree and on that basis alone the ground is not arguable.[34]
[34] WZAVW v Minister for Immigration [2016] FCA 760 at [35].
Grounds 3 and 5
Grounds 3 and 5 are similarly meaningless in the absence of particulars. It is well-settled that a "relevant" consideration is one that, on a proper construction of the relevant statute, the decision-maker is required to consider. Similarly, an "irrelevant" consideration is one, which on the proper construction of the statute, the decision-maker was prohibited from considering.[35]
[35] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
The Tribunal's reasons demonstrate that it gave careful consideration to the claims raised by the applicant, including documentary evidence submitted by him in support of his claims. Grounds 3 and 5 do not demonstrate an arguable case of jurisdictional error for the same reason as Ground 2.
Ground 4
The applicant's assertion that the Tribunal's decision was unreasonable cannot be sustained on the face of the decision record.
Unreasonableness in a decision sufficient to constitute jurisdictional error will only be found where, following a consideration of the subject matter, scope and purpose of the Migration Act and any relevant provision, and in light of the reasons given for the decision, a finding is “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, or “obviously disproportionate”.[36] Similarly, “illogicality” or “irrationality” sufficient to constitute jurisdictional error requires a finding be one which no rational or logical decision-maker could arrive at on the same evidence.[37] Findings of legal unreasonableness attract a high threshold and only occur in relatively clear cases.[38]
[36] Minister for Immigration v Li (2013) 249 CLR 332; Minister for Immigration v Singh (2014) 231 FCR 437; Minister for Immigration v Stretton (2016) 237 FCR 1. These authorities were collected in Minister for Immigration v Eden (2016) 240 FCR 158 at 171-172.
[37] Minister for Immigration v SZMDS (2010) 240 CLR 611, 647-8.
[38] Li at 376-77; Eden at 180.
The Tribunal's reasons do not reveal any of the above features, as the Tribunal's decision was squarely based on:
a)its findings that the applicant's claims were contradictory, not supported by probative evidence and in that regard amounted to bare speculation; and
b)country information before it.
If, however, the applicant means to contend that the Tribunal's refusal to postpone the hearing was a decision in which the exercise of discretion was unreasonable, such a claim is without merit.
By email dated 11 July 2018, the applicant requested an adjournment of the Tribunal hearing (scheduled to take place on 20 July 2018).[39] He stated that he was waiting to hear back from a lawyer and wanted to attend the Tribunal hearing in person, which he considered would not be a problem as the Minister’s Department regularly transfers detainees.
[39] See CB 95.
By letter dated 18 July 2018, the Tribunal rejected the applicant's request.[40] In its decision record,[41] the Tribunal stated that it had refused the adjournment request for two reasons. First, the review of visa applications by applicants in detention is expected to be conducted without undue delay. Secondly, contrary to the applicant's contention, there was no evidence of any certainty as to whether the applicant would be moved from Christmas Island to Sydney. The Tribunal nevertheless granted the applicant an additional two weeks to submit any further evidence. The applicant accepted the invitation and did make a submission.[42] That submission was considered by the Tribunal in its assessment of the applicant's claims.[43]
[40] CB 97.
[41] at [6].
[42] See CB 105-140.
[43] See, eg, CB 145-146 at [23]-[25], [27]-[29], 147 at [31].
Having regard to the above, it cannot be said that the Tribunal's refusal to postpone the hearing was an unreasonable exercise of its discretionary power such that it lacks an evident or intelligible justification.[44] Ground 4 demonstrates no arguable case for jurisdictional error.
[44] Li.
Grounds 6 and 7
The applicant's contention that the Tribunal misapplied the "real chance" and "real risk" test in s.36(2) of the Migration Act is misconceived.
In Minister for Immigration v Wu Shan Liang[45] the High Court observed that determining whether there is a "real chance" that persecution will occur involves a decision-maker:[46]
…making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the 'real chance' affecting the treatment of the applicant if he or she were to be returned to [his or her country of nationality].
[45] (1996) 185 CLR 259.
[46] at 294.
On a plain reading of the decision record, this was the approach which the Tribunal adopted. First, the Tribunal set out the correct statutory framework at [9]-[14] and [52]-[54]. Secondly, the Tribunal considered the applicant's evidence at [18]-[43]. Thirdly, the Tribunal proceeded to make findings in respect to the applicant's evidence and assessed those findings against the statutory framework. As outlined above, the Tribunal did not accept that the applicant faced a "real chance" of harm for any of the reasons he claimed should he return to India.[47] That is what it was required to do and in fact did.
[47] see [44]-[50].
As to the assessment of the "real risk" test within the complementary protection context, the Tribunal adopted its factual findings in respect of the Refugee Convention criteria.[48] There is no error in this approach as the "real risk" test and the "real chance" test involve the application of the same standard.[49] For this reason alone, Ground 7 is also without merit. As alluded to above, having rejected the applicant's fundamental and core claims that:
a)he was not involved in a land disputes with his uncles;
b)his family intends to harm him and/or his wife in connection to their inter-faith marriage; and
c)he will be prosecuted in India in relation to any of the offences he committed in Australia,
any residual claim is likely to have been subsumed by the Tribunal's findings made in relation to his core claims. Grounds 6 and 7 do not disclose an arguable case for jurisdictional error.
[48] See CB 150 at [55].
[49] Minister for Immigration v SZQRB (2013) 210 FCR 505. See also MZYXS v Minister for Immigration [2013] FCA 614 at [31]; SZSGA v Minister for Immigration [2013] FCA 774 at [54]-[56]; SZSHK v Minister for Immigration [2013] FCAFC 125 at [32]; DBE16 v Minister for Immigration [2017] FCA 942 at [54]-[56].
Ground 8
The applicant's assertion that the Tribunal did not consider his "country report information" must be rejected as it is factually incorrect. The Tribunal expressly considered and had regard to the country information the applicant provided in support of his visa application.[50]
[50] see, e.g. [23]-[31], [45].
As such, this ground merely seeks to cavil with the selection of, and the weight attributed to, the country information that was before the Tribunal. Such a complaint is contrary to established authority and must not be entertained.[51] No arguable case of jurisdictional error is revealed by Ground 8.
[51] see NAHI v Minister for Immigration [2004] FCAFC 10.
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 November 2018
18
3