EXX18 v Minister for Home Affairs
[2019] FCCA 3552
•12 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EXX18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3552 |
| Catchwords: MIGRATION – Protection (subclass 866) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal placed undue weight on delay in applying for visa – whether credibility findings were open to be made – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Craig v State of South Australia (1995) 184 CLR 163 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 |
| Applicant: | EXX18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 496 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 5 December 2019 |
| Date of Last Submission: | 5 December 2019 |
| Delivered at: | Perth |
| Delivered on: | 12 December 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr M P Sunits |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 496 of 2018
| EXX18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 21 September 2018 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 20 August 2018.
The Tribunal’s decision affirmed a decision of the first respondent (the “Minister”) to deny the applicant a Protection (subclass 866) visa (the “visa”).
This application is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has made a jurisdictional error.
The materials before the Court included the applicant’s judicial review application, an affidavit of the applicant sworn 21 September 2018, a Court Book (“CB”) numbering 120 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 14 November 2019.
Background
The background to this matter can be summarised as follows.
The applicant is a citizen of India. He arrived in Australia on 2 November 2006 as the holder of a subclass 572 student visa (CB 23). The applicant applied for a subclass 485 visa in 2008. That visa was refused in 2012 (CB 74).
On 9 April 2015, the applicant became an unlawful non-citizen (CB 74). The applicant remained unlawful until he was granted a Bridging visa in late July 2015.
On 4 May 2016, the applicant applied for the visa the subject of these proceedings. The applicant claimed that he could not return to India as there was a family land dispute with a lessee, his father had received threatening calls which referred to attacking the applicant and his family and he believed he would be attacked by the opposition on return to India (CB 75).
On 18 July 2016, the delegate denied the visa (CB 71). The delegate found that the applicant’s claims were vague and lacking in detail or evidence. The delegate also found it likely that the applicant had applied for the visa as he had no other migration options available to him and wanted to prolong his stay in Australia.
On 10 August 2016, the applicant applied to the Tribunal for review of the delegate’s decision (CB 81-82).
On 7 August 2017, the applicant attended a hearing before the Tribunal to give evidence and present arguments (CB 101-103).
On 20 August 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa.
Tribunal’s Decision
The Tribunal’s decision is 11 pages long and comprises 35 paragraphs.
At [1]-[5], the Tribunal sets out the background to the application for review.
At [6]-[11] and [14]-[16], the Tribunal set out the principles applicable to the protection visa criterion and the assessment of credibility.
At [12]-[13], the Tribunal noted that the issue before it was whether the applicant was owed protection. The Tribunal accepted that the applicant was an Indian national and assessed his claims on the basis that he would return to India.
At [17], the Tribunal noted that, in light of the delay between the hearing and the reasons for judgment (378 days), it had listened to the audio of the applicant’s hearing.
The Minister’s submissions at [12]-[13] accurately summarise the balance of the Tribunal’s decision. The Court adopts those submissions, with some additions, as follows.
At [19], the Tribunal found as follows:
In this case, the Tribunal has significant concerns about the credibility of the applicant’s claims for protection. The Tribunal has taken into consideration the applicant’s delay in lodging his visa application. At hearing the Tribunal raised with the applicant the issue of his credibility, and pursuant to s.424AA of the Act, sought his comment on information before it indicating that he had lived in Australia for almost nine years and in that time had been granted two student visas; applied unsuccessfully for a skilled graduate visa; and had now made an application for a protection visa, after a considerable delay from when he says he began to fear harm. The Tribunal notes the applicant’s evidence, which he opted to provide without an adjournment, that he had not made his protection claims earlier because he did not have a problem in his home country until 2012 or 2013, and also he thought he would be successful in appealing against the decision of the Department to refuse him a skilled graduate visa, which he had applied for in 2008. However, as the Tribunal noted in the hearing, after the applicant’s skilled graduate visa was refused and then affirmed on review by the former Migration Review Tribunal, he sought judicial review of the decision, then withdrew that application, and then after some months of remaining unlawfully in Australia he made a request for Ministerial Intervention. The Tribunal finds the applicant’s actions suggest that he sought protection after he had exhausted all other migration opportunities available to him. The Tribunal refers to the decision in Selvadurai v MIEA & Anor (1994) 34 ALD 346 in which Justice Heerey found that a delay in lodging a refuge application was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution. In Andaraj Subramaniam v MIMA [1998] FCA 305 Justice Carr agreed with Heerey J in Selvadurai as a matter of principle that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least depth of an applicant’s fear of persecution. His Honour went further and found that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant. The Tribunal finds the applicant’s substantial delay in seeking protection raises doubts about the credibility of his claims and the genuineness of his fear.
In affirming the delegate’s decision the Tribunal expressed significant concerns about the credibility of the applicant’s claims for protection and made the following findings:
a)the applicant’s evidence about the alleged land dispute was vague, contradictory, confusing and lacking in necessary detail (CB 110 at [20]-[21]);
b)the applicant’s evidence regarding the alleged threats against his father was lacking in detail and inconsistent. The Tribunal found the applicant’s answers to questions on this topic to be evasive and noted that he was unable to explain any inconsistencies (CB 110 at [22]);
c)the applicant’s explanation and evidence as to his father not taking any action against the lessee, with the help of the Indian authorities, during the alleged dispute could not be accepted. This undermined the applicant’s claims and the credibility of his evidence (CB 111 at [23]);
d)the applicant did not give any plausible or credible explanation as to why he would be targeted for serious harm as a result of the alleged land dispute if he was to return to India (CB 111 at [24]);
e)the applicant had returned to India for a period of about three months after he said the alleged land dispute occurred. His preparedness to return to India, after the time he claimed to fear harm, cast doubts over the truth of his claims (CB 111 at [25]); and
f)the applicant admitted that he had not read the delegate’s decision record (other than the first page), he failed to attend an interview with the delegate and he had not submitted any further documents in support of his claims (CB 111-112 at [26]).
The Tribunal ultimately found that the applicant had fabricated his claims and concocted a story in respect of a claimed fear should he return to India. The Tribunal did not accept that the applicant would face serious harm if he returned to India (CB112 at [27]).
At [28], the Tribunal noted as follows:
At the conclusion of the hearing, the applicant told the Tribunal that his two siblings reside as permanent residents in Australia and his parents are looking to migrate to Australia in the future, so he would not have the support of his family if he returned to India. The Tribunal reminded the applicant that it needed to consider whether he faced a well-founded fear of persecution in his home country. It also clarified with him that notwithstanding his parents had not yet made application to migrate to Australia, he is educated, has language skills, and has worked in Australia and all of these attributes would assist him to support himself if he was to return to India. The Tribunal acknowledges that the applicant has spent considerable time in Australia; that his siblings permanently reside in Australia; and that his parents may apply to migrate to Australia in the future. However, to the extent that the applicant is pursuing the claim made to the Tribunal during his hearing – that he will have no family support if he returns to his home country - the Tribunal finds that although it might not be easy for the applicant, any hardship that he believes he may experience upon return to India, including lack of financial support and lack of accommodation, do not give rise to a real chance of persecution or a real risk of significant harm. The applicant indicated to the Tribunal that he would not find it easy to get work if he returned to India, so he might need to return to his father’s heritage area to work as a farmer. He went on to say that this would be a problem for him because he would be near the person who used to lease the land from his father and so he might be harmed. The Tribunal has rejected the entirety of the applicant’s claims. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant would face serious harm if he returns to his home in Punjab, now or in the reasonably foreseeable future for any reason relating to the land dispute. For the same reasons, the Tribunal does not accept there to be substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm as a result of any land dispute, or for any other reason.
The Tribunal acknowledged that the applicant had made a claim that he could not seek state protection in India. However, in light of the Tribunal’s findings that the applicant did not face harm from an unknown person who leased land from his father or anyone else for any reason, the Tribunal found that it did not need to address that claim (CB 113 at [29]).
The Tribunal was not satisfied that the applicant had a well-founded fear as defined by the Act. As such, the applicant did not meet s.36(2)(a) of the Act. The Tribunal was not that satisfied the applicant met the criterion of s.36(2)(aa) of the Act and affirmed the decision not to grant the visa (CB 113 at [30]-[33]).
Proceedings in the Court
The application for judicial review contains 23 “grounds of review”, as follows:
1.I was born on [omitted] at Amritsar in India was residing there till 02 Nov 2006
2. I completed my secondary studies in India including my senior secondary and diploma of Mechanical Engineering.
3. After completion of my study, I was fascinated to study abroad enhancing my career options & opportunities.
4. After discussing with my family & member's, I concluded choosing Australia to upgrade my study.
5. I applied for my student visa, and fortunately, my application was approved, and I arrived in Australia as the holder of the Student (Subclass 572) visa on 02 Nov 2006.
6. I applied for student visa extension on 20 Dec 2007 and successfully got my visa approved. 7. Furthermore, applied for Skilled Graduate subclass 485 Visa on 28 Nov 2008.
8. My visa was refused on 2 Nov 2012 my visa application was rejected under PIC 4020.
9. I applied for Merit Review of Case with Migration Review Tribunal on 13 Nov 2012.
10. I was invited by AAT to give further documents and attend the hearing but on 11 Aug 2014, my review application was affirmed by the tribunal member.
11. I lodged judicial review about my application on 12/03/2014 and subsequently withdrew my application on 13 March 2015
12. I was under immense stress, depression and deteriorating medical condition became unlawful.
13. I approached community Status resolution section of Department of Home Affairs and was granted bridging visa 24 July 2015.
14. Due to the circumstances beyond my control, my dream of having a successful career was shattered, and I never told my parents about the situation, and due to this I was stressed and was afraid on the consequences when my parents will have when I tell them my real position.
15. During my stay in Australia, we had a land dispute back in 2014, due to which I was afraid of being harmed on the return back to home country.
16. With all my doors closed, I applied for protection visa requesting the Department of Home Affairs to provide me refuge.
17. My application for Protection (Subclass 866) visa was refused by the Department of Home Affairs on 18 July 2016.
18. I was given the option to appeal my decision to the Refugee Review Tribunal, and I applied for review on 10 Aug 2016
19. I was invited by AAT to present my arguments and evidence on 07 Aug 2017.
20. On 20/08/2018 AAT Dismissed my application and considered my delay in lodging the application as my primary piece of information for refusal.
21.I believe that the tribunal member & case officer has not taken into grant all the circumstances appropriately and has passed the judgement based on delay in lodgement application.
22. The tribunal member has not considered the previous 1103306 [2012] RRTA 726 (22 August 2012) heard by Tribunal Member Linda Kirk where it has been made clear that delay in lodgement of application can't be the sole judging factor in the assessment of Protection Claims
23. I request Federal Circuit Court to reassess my application and substitute a favourable judgement for me.
The applicant’s affidavit contained 23 identical paragraphs.
By orders of a Registrar of this Court made on 7 November 2018, the applicant was given an opportunity to file an amended application, any further affidavit evidence and a written outline of submissions. No further materials were filed.
The applicant appeared before the Court without legal representation. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s submissions. The Court also asked the Minister to orally summarise the written submissions.
Noting the remarks of Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate in a protection visa hearing for an unrepresented applicant to be given an opportunity to explain orally the matters that they believe give rise to any grounds of review, the Court gave the applicant an opportunity to explain any concerns he had with the Tribunal’s decision.
To assist the applicant, the Court explained to him that there are different categories of jurisdictional error. It was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that this Court cannot undertake a “merits review” of the Tribunal’s decision and cannot grant the applicant the visa he seeks. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Against this background, the Court asked the applicant to explain to the Court what he felt the Tribunal “did wrong”. The applicant advised that he was not sure whether the Tribunal had made any mistakes. He stated that he had told the Tribunal about the issues with the farmer and was concerned that he now has no family in India (as his parents had recently moved to Australia). The Court will address these comments further below. The Court otherwise addresses the applicant’s grounds of review as follows.
Consideration
Grounds 1-19
Grounds 1-19 are irrelevant to the question of whether there is error in the Tribunal’s decision. They are factual matters that are not in dispute.
To the extent that the applicant refers here to his “circumstances” (grounds 12 and 14-15), these are not matters that the Court can take into account. These are matters that should have been discussed at the hearing before the Tribunal. They were not and there is simply no indication on the evidence before the Court that the Tribunal was aware of the circumstances now detailed by the applicant.
Grounds 1-19 are, accordingly, dismissed.
Grounds 20-22
Grounds 20-22 arguably refer to error in the Tribunal’s decision. It appears that the applicant is suggesting that the Tribunal based its decision solely on the delay in lodging his visa application. The applicant believes the Tribunal did not consider any of the other evidence before it.
The applicant is incorrect when he claims that the Tribunal did not consider all of the circumstances relevant to his application. An applicant’s claims for protection are mandatorily relevant considerations under the Act. Here, the applicant’s claims for protection, and the limited evidence he provided in support of them, were considered.
It is clear that the Tribunal did not base the decision to refuse the visa solely on concerns about the delay in filing. Rather, the Tribunal based its decision on a number of factors including:
a)the delay and the inadequate explanation for the delay;
b)the vague, contradictory, unconvincing and confusing evidence the applicant provided in relation to the claims regarding the dispute over land owned by his father and the alleged threats made to his father about this land;
c)country information that was inconsistent with the applicant’s claims. When the applicant was asked to comment on this, he could not provide a reasonable explanation for these inconsistencies;
d)a lack of plausible or credible evidence from the applicant was able to offer regarding his chance or risk of harm. Notably, the Tribunal referred to the applicant’s own evidence that there had been no threats made, or actual harm suffered, by his father since he was allegedly threatened by the lessee when he last went to the property to ask for his rental money. This was two years before the hearing. His father had also sold the land in question and, critically, the applicant himself stated that he was “not sure actually” if he had any concerns about returning to India; and
e)the fact that the applicant had returned to India after the alleged land dispute and did not suffer any harm.
The Tribunal found that, given the significance of the delegate’s decision, and noting the applicant’s lack of engagement in the visa process (having failed to attend the interview before the delegate and providing no further supporting documents) this raised serious concerns about the credibility of the applicant’s claims.
Clearly, the Tribunal’s decision was not made solely on the basis of the delay in seeking protection. The basis of the decision was that the applicant’s claims were not credible. The reason for this finding was not restricted to the delay. Rather, it was based on defects in and concerns about the applicant’s evidence and claims.
The applicant’s argument that the Tribunal failed to consider matters other than the delay is rejected.
The Court, for finality, notes that this is not a case where an adverse credibility finding on a minor point (such as delay) is used to undermine the entirety of the applicant’s claims: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 at [36]-[44]. Here, the Tribunal made multiple distinct adverse credibility findings. It cannot be said one finding impugned the other findings. Each of the findings made was logical and reasonable in light of the evidence before the Tribunal.
Grounds 20-22, accordingly, are dismissed.
Ground 23
Ground 23 is a pleading for relief. It is not a ground of review. Further, the Court cannot “reassess” the application for the visa.
Ground 23, accordingly, is dismissed.
Otherwise
The Court, in its duty to a self-represented litigant has otherwise reviewed the Tribunal’s decision for any error: as per MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
It is noted that there was a 12 month delay between the Tribunal hearing and the reasons for judgment. In some contexts, this can prove problematic, particularly where the ultimate finding relies almost exclusively on credibility findings.
Here, the Tribunal’s credibility findings are detailed and note inconsistencies, implausibilities and a lack of specificity. The Tribunal did not rely on demeanour in the assessment of the applicant’s evidence, save for one reference to the applicant being described as “evasive”. The Court does not consider this one reference to be significant or problematic. The Tribunal’s reference to the applicant being evasive is an “additional” comment. That is, the Tribunal had already found that the inconsistent and limited evidence about the threats made to the applicant’s father and the inability to explain the inconsistencies caused it to doubt the veracity of the claim. Hence, the finding that the applicant was also “evasive” was not material. The Tribunal already had doubts about the claim on the basis of other matters.
While there is a lengthy delay here between the hearing and the delivery of the decision, the Court notes that the Tribunal did specifically listen to the audio recording of the hearing. Overall, the Court does not infer that the procedures followed by the Tribunal were procedurally unfair or that the Tribunal’s capacity to make a proper assessment of the applicant’s sincerity and reliability was affected: NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 288 CLR 470 at [10]; SZKJV v Minister for Immigration & Citizenship [2011] FCA 80 at [33].
Nothing arises from the Tribunal’s delay in handing down a decision.
It is also noted that at [26] it appears that the applicant intimated to the Tribunal that he could obtain further documents. However, the Tribunal did not adjourn the hearing to allow him to do so. The Court has considered whether it was unreasonable in the sense described in Li for the Tribunal not to have done so. Here, the course of action was not unreasonable as:
a)the applicant had not taken an active interest in his visa application. He had provided no supporting documents and failed to attend an interview before the delegate. His reason was that while he may have been asked for documents by the delegate and Tribunal, he simply did not read those documents;
b)there was no indication of when the applicant could obtain the document. He simply said he could ask his father to send him documents; and
c)the Tribunal advised the applicant that he could provide any further documents up until the time the decision was made. The decision was made almost 12 months later and no documents were provided.
Nothing arises from the Tribunal’s decision not to adjourn the hearing.
At hearing the applicant made reference to there being no family left in India. The Court understands this submission to suggest that if the applicant returns to India, he will suffer as he will have no support network.
As the Minister submitted, the Tribunal did consider this concern to the extent that it was able to on the materials and information before it (at [28]). The Tribunal accepted that it might be difficult for the applicant to return in these circumstances. Ultimately, however, it was not satisfied that the any difficulty arose to the level of serious or significant harm. It was open for the Tribunal to find as it did given that all it had before it was a bare assertion that the applicant would face hardship without family support. The applicant confirmed to the Tribunal that he was educated, had language skills and had worked in Australia – all of which the Tribunal found would enable him to support himself in India. In light of this, and the Tribunal’s rejection of the claim concerning harm from the land dispute, it was reasonable for the Tribunal to conclude that any lack of family support did not give rise to a real chance or risk of harm.
The Court is otherwise satisfied that there is no error in the Tribunal’s decision.
Conclusion
The applicant has failed to satisfy the Court that there is any error in the Tribunal’s decision. The Court has otherwise reviewed the Tribunal’s decision and is satisfied that there is no error.
The application, accordingly, is dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 12 December 2019
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