FDX19 v Minister for Immigration

[2020] FCCA 2629

FEDERAL CIRCUIT COURT OF AUSTRALIA

FDX19 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2629

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal did not take into account relevant considerations – whether the Tribunal misapplied the relevant law – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 438, 476

First Applicant: FDX19

Second Applicant: FER19

Third Applicant: FES19

Fourth Applicant: FET19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3404 of 2019

Judgment of: Judge Street

Hearing date: 10 September 2020

Date of Last Submission: 10 September 2020

Delivered at: Sydney

Delivered on: 22 September 2020

REPRESENTATION

Counsel for the Applicants: Mr B Zipser via Microsoft Teams

Solicitors for the Applicants: ALP Lawyers

Counsel for the First Respondent: Mr T Reilly via Microsoft Teams

Solicitors for the First Respondent: MinterEllison

ORDERS

1. The amended application in respect of the decision concerning the first, third and fourth applicants is dismissed.

2. The first, third and fourth applicants pay the first respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3404 of 2019

FDX19

First Applicant

FER19

Second Applicant

FES19

Third Applicant

FET19

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for Constitutional writs within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of two decisions of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 December 2019 concerning the same family from Indonesia and by the same decision-maker of the Tribunal affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Protection (Class XA) visas.

2. The first decision concerned the first applicant (husband of the second applicant) and the third and fourth applicant being the adult son and adult daughter respectively and the second decision concerned the second applicant (wife of the first applicant) being the mother of the third and fourth applicant. The Court made orders for separate determination for reasons identified in the written reasons for judgment for the second applicant. These are the written reasons for judgment in respect of the first, third and fourth applicants.

3. The applicants were found to be citizens of Indonesia and their claims were assessed against that country.

4. The first applicant first arrived in Australia on 28 January 2002 and departed on 11 August 2006. The first applicant returned to Australia on 20 August 2007 and departed on 26 February 2009. The first applicant returned to Australia on 3 March 2009 and departed on 13 August 2010. The first applicant returned to Australia on 22 August 2010 and departed on 29 November 2011. The first applicant returned to Australia on 13 December 2011.

5. The applicants first applied for protection visas on 12 March 2002. That application was refused by a delegate of the first respondent on 24 April 2002. The Tribunal affirmed the decision not to grant the applicants, including the two children as dependants, protection visas on 30 May 2003.

6. The applicants remained unlawfully in Australia until they were located, detained and deported back to Indonesia in August 2006. The applicants then re-entered Australia in 2007 on student visas that were granted to them under false identities. The first and second applicants studied and worked in Australia using their false identities until the lodging of the current Protection visa application on 12 November 2014.

7. The first applicant claimed to fear harm, in summary, because he was studying teaching of Islam Jama’ah (“IJ”) between 1992 and 1995 and intends following IJ, that he and his family has never felt safe, secure or peaceful because Indonesian society thinks IJ is fanatical and threatening, that he and his family received threats of persecution from people who hate IJ, that he and his family received threats and physical attacks while living in a particular location, that he was physically threatened with death and will not be able to practise his religion, that in 1996 the second applicant answered the door and was assaulted and that in 2006 he was attacked by three men when walking home from a mosque.

8. The Delegate found that the first applicant was not a witness of truth and did not meet the criteria for the grant of a Protection visa. The second, third and fourth applicants were at that stage included as members of the family unit. Accordingly, the Delegate refused to grant the applicants Protection visas.

9. On 16 February 2016, the applicants applied to the Tribunal for review. By letter dated 24 April 2018, the Tribunal invited the applicants to attend a hearing on 9 July 2018. The first, second and third applicants attended the hearing on that date to give evidence and present arguments, as well as their migration representatives and two other persons who gave evidence as witnesses. The fourth applicant did not attend that hearing. By letter dated 10 July 2018, the Tribunal invited the applicants to attend a resumption of the adjourned hearing on 14 August 2018. The applicants’ all attended the resumed hearing on that date to give evidence and present arguments, as well as their migration representative.

10. In the decision concerning the first, third and fourth applicants, the Tribunal identified the background for the Protection visa application and the applicants’ migration history. The Tribunal identified the relevant law.

11. The Tribunal identified the existence of a s 438 of the Act certificate, which the Tribunal treated as being invalid. The Tribunal found that the certificate was disclosed to the applicants and it is apparent that the applicants suffered no practical injustice in the conduct of the review by reason of the existence of the certificate or the information the subject of the certificate.

12. The Tribunal sent to the applicants a procedural fairness email pursuant to s 424A of the Act. The Tribunal identified in its reasons the applicants’ response and the documents that were submitted.

13. The Tribunal held a further hearing on 14 August 2018 and that on that occasion all four applicants appeared together with a migration representative to give evidence and present arguments.

14. The Tribunal referred to independent country information and summarised what had occurred in relation to IJ, that it was banned by the Indonesian Attorney-General’s department in October 1971, that the ban was confirmed as having been lifted in 2008 and that the Lembaga Dakwah Islam Indonesia (“LDII”) was registered by the Department of the Interior of the Republic of Indonesia as one of the Islamic organisations in Indonesia.

15. The Tribunal referred to country information in relation to the change of name of IJ to LDII.

16. The Tribunal referred to country information that LDII is seen by conservative Muslims as deviant.

17. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (“DFAT) country information report saying that DFAT does not have any information on the group called IJ.

18. The Tribunal identified that it was willing to accept that the applicants are followers of IJ. The Tribunal found that, on the evidence, the applicants attended LDII mosques in Indonesia and that they have continued to practise their faith in Australia.

19. The Tribunal also accepted that the first and second applicants were assaulted in 1996.

20. The Tribunal was willing to accept that, before they travelled to Australia in 2002, the applicants encountered societal discrimination and stigma because of their religious beliefs and practices.

21. The Tribunal identified having significant concerns about the credibility of the applicants’ claims that they will face religious persecution if they returned to Indonesia now or in the reasonably foreseeable future.

22. The Tribunal found that it was not satisfied that the applicants had experienced serious harm or significant harm for reasons of their religion or any other reason since returning to Indonesia in 2006.

23. The Tribunal found that the fact that the applicants voluntarily returned to Indonesia between 2007 and 2012 underlines their claims that they will face serious harm or significant harm if they return to Indonesia. The Tribunal was not satisfied that the country information supports the applicants’ claim that there is a real chance they will face serious harm or significant harm if they return to Indonesia now or in the reasonably foreseeable future because of their religious beliefs and practices.

24. The Tribunal referred to the applicants’ experiences in Indonesia before 2002 and first application for asylum in Australia. The Tribunal took into account that on two occasions in 2000 and 2001, the first and second applicant travelled to the United States but did not seek asylum in the United States and voluntarily returned to Indonesia. The Tribunal concluded that, while it is plausible that the applicants held concerns about societal discrimination against LDII/IJ followers, the reason that they did not seek asylum in the United States was because they did not at those times fear religious persecution.

25. The Tribunal referred to the applicants’ removal to Indonesia in 2006. The first applicant and then the second and third applicants returned to Australia in 2007 using false identities. The Tribunal identified that the first, second and fourth applicants (mother and daughter) returned to Australia using false identities. The Tribunal identified that the fourth applicant (son) using a false identity travelled five times to Australia between 2008 and 2011 most recently returning to Australia on 7 July 2008 on 8 July 2008 before returning to Indonesia on 5 October 2008.

26. The Tribunal took into account the applicants’ willingness to provide false information to authorities and rely upon false identity documents in an effort to achieve an immigration outcome in relation to their credibility.

27. The Tribunal put to the applicants, pursuant to s 424A of the Act, that the applicants advanced a false and misleading migration history in the hope of obtaining a favourable migration outcome. The Tribunal referred to the applicants’ response that the only reason that they provided false information was because they were active members of IJ and feared for their safety and the safety of the children and that it was not their intention to deceive the Australian authorities. The Tribunal found the assertion that the applicants did not intend to deceive the Australian authorities to be disingenuous.

28. The Tribunal found the fact that the first and second applicants were willing to provide and maintain false information about their identities and those of their children to obtain an immigration outcome cast doubt upon their general credibility as witnesses and the credibility of their claims that the family will face religious persecution in Indonesia.

29. The Tribunal found that the fact that the first and second applicant voluntarily returned to Indonesia from Australia using false passports undermines their claims that they feared they would face serious harm because of their religious beliefs.

30. The Tribunal found that the first applicant had not credibly explained why he returned to Indonesia on three occasions after returning to Australia in 2007.

31. The Tribunal found that the first applicant’s claim that he returned to Indonesia to assist the third applicant to leave Indonesia and escape religious persecution to be contrived and unconvincing.

32. The Tribunal referred to the third applicant attending a school in Indonesia between 2007 and 2012 and that during this period there was travel between Australia and Indonesia by the first applicant on multiple occasions. The Tribunal explored why this would occur if they were concerned about religious persecution and identified the response by the first applicant.

33. The Tribunal found that the first applicant’s claim he was concerned about the third applicant’s safety in Indonesia was inconsistent with the third applicant’s immigration history and the fact that the third applicant remained Indonesia to study when the other members of the family returned to Australia in 2007.

34. The Tribunal identified country information indicating that there were many well-attended LDII mosques.

35. The Tribunal did not accept that the third applicant was targeted in a religiously-motivated attack in 2010 or at any other time. The Tribunal found as not credible the claim that the third applicant was able to avoid harm by being discreet about his religious practice.

36. The Tribunal referred to the situation for IJ and LDII followers in Indonesia. The Tribunal referred to country information that the situation for followers of IJ and LDII has improved significantly since the 1990s. The Tribunal also took into account that the ban on LDII was lifted in 2008 and that there are LDII websites and mosques operating in Indonesia.

37. The Tribunal referred to the applicants’ explanation that there was a distinction between IJ and members of LDII. The Tribunal, however, found that IJ had changed its name to LDII.

38. The Tribunal found the applicants’ claims that IJ followers are at risk while LDII are not confused and unpersuasive. The Tribunal found that the evidence of the applicants indicate that they attended LDII mosques in Indonesia and now attended an Association of Islamic Dawah (“AIDA”) mosque in Australia.

39. The Tribunal found that it was unable to locate country information supporting the claims that the risks facing IJ followers are different from those facing members or followers of LDII. The Tribunal referred to country information provided by the applicants that the denomination IJ is commonly known as LDII and that the ideology adhered to by LDII is no different from IJ. The Tribunal found that LDII used to be known as IJ and the followers of LDII are sometimes referred to as followers of IJ. The Tribunal expressly found that the country information indicates that risks facing LDII and IJ followers have reduced since the ban when LDII was lifted in 2008.

40. The Tribunal found that the applicants’ claim that there is a real chance they will face serious or significant harm if they return to Indonesia in the reasonably foreseeable future on the basis of their religion is not supported by the independent country information.

41. The Tribunal found that in Indonesia the applicants practice their religion in LDII mosques under the banner of LDII and that they are free to do so. The Tribunal also took into account the applicants’ voluntary return to Indonesia from Australia after 2007 undermining their claims that they are at risk of harm in Indonesia for reasons related to their religious beliefs or practices. The Tribunal did not accept that there is a distinction between IJ and LDII members. The Tribunal found on the evidence before it that IJ followers are free to practise their religion in the manner that they choose to do so under the umbrella of LDII.

42. The Tribunal expressly referred to the oral evidence of two witnesses. The Tribunal was prepared to accept that one of the witnesses was recognised as a refugee on the basis of her religious beliefs. The Tribunal identified that she gave evidence that there is no freedom of religious practice in Indonesia and that IJ followers are restricted from practising their religion. The Tribunal also heard evidence given by the other witness, who was described by the applicants as their spiritual leader, in relation to the alleged distinction between IJ and LDII. The Tribunal summarised the effect of the evidence in relation to the targeting of followers of IJ in Indonesia and the contention that LDII is a legal organisation, whereas IJ remains illegal.

43. The Tribunal took into account that the witnesses are long-time friends and associates of the applicants who wish to assist them in their efforts to remain in Australia. The Tribunal found that the witnesses were not disinterested parties to the review and that their assessment of the risks facing IJ followers in Indonesia was not, in the Tribunal’s opinion, supported by independent country information. The Tribunal took into account that there was no corroborating documentation produced in support of the alleged role of the spiritual leader.

44. The Tribunal, having considered the witness testimony, found that to the extent it corroborates the applicants’ claims about the circumstances it does not satisfy the Tribunal that there is a real chance that the applicants will face serious harm or significant harm for reasons related to their religion if they return to Indonesia in the reasonably foreseeable future.

45. The Tribunal referred to the applicants’ religious practice in Australia. The Tribunal noted that the applicants have not claimed that there is a real chance that the applicants will face serious harm or significant harm because of any religious activity that they engaged in in Australia.

46. The Tribunal was not satisfied that there was a real chance the applicants will face serious harm or significant harm for reasons related to their religious beliefs and practices in Indonesia.

47. The Tribunal referred to having accepted that the first and second applicant had been assaulted in the 1990s and that there may have been a degree of discrimination and hostility before they first sought asylum in Australia in 2002. The Tribunal, however, took into account as significant that the first and second applicant did not seek protection in the United States.

48. The Tribunal did not accept that after the applicants were returned to Indonesia in 2006 they were unable to attend their mosque of choice, participate in prayers, religious gatherings or any other religious activities.

49. The Tribunal found that in the years after the applicants returned to Indonesia in 2006, none of the applicants have been harmed, abused, or otherwise targeted by any persons or groups in Indonesia because of their religious beliefs and practices. The Tribunal did not accept that the first applicant was assaulted because of his religious beliefs in 2006 or that he and his family members were required to move around Indonesia to avoid religious persecution after they returned to Indonesia in 2006.

50. The Tribunal found that the third applicant’s random assault in 2010 was not religiously motivated and rejected the entirety of the claims by the third and fourth applicant to have been subject to serious harm or significant harm in Indonesia for reasons relating to their faith.

51. The Tribunal found that there is no real chance that the applicants will face serious harm or significant harm if they return to Indonesia now or in the reasonably foreseeable future because of their religious beliefs or practices.

52. The Tribunal found that if the first applicant returns to Indonesia he will be free to manifest his religion in accordance with his beliefs, including by preaching or acting as a spiritual adviser if he chooses to do so, and that there is no real chance that he will face serious harm or significant harm as a consequence of doing so.

53. The Tribunal found that if the third applicant returns to Indonesia he will be free to manifest his religion in accordance with his beliefs and that there is no real chance that he will face serious harm or significant harm in Indonesia as a consequence of doing so.

54. The Tribunal found that if the fourth applicant returns to Indonesia she will be free to practise her faith at an LDII mosque and to manifest her religion in accordance with her beliefs and that there is no real chance that she will face serious harm or significant harm as a consequence of doing so.

1. The Tribunal referred to the financial hardships for the third and fourth applicants. The Tribunal found that their evidence did not indicate that any financial difficulties or hardship or distress the applicants may encounter if they return to Indonesia now or in the reasonably foreseeable future amounts to serious harm for the purposes of the 1951 Refugee Convention or significant harm for the purpose of complementary protection criteria.

2. The Tribunal found that the applicants did not have a well-founded fear of persecution and that the applicants are not refugees. The Tribunal found that the first, third and fourth applicants did not meet the criteria under s 36(2)(a) of the Act.

3. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned from Australia to Indonesia, there is a real risk the first, third and fourth applicants will suffer significant harm. The Tribunal found that the first, third and fourth applicants did not meet the criteria under s 36(2)(aa) of the Act.

4. Accordingly, the Tribunal affirmed the decision under review in respect of the first, third and fourth applicants.

Grounds in the amended application

1. The grounds of the amended application are as follows:

   1. (Deleted)

   2. (Deleted)

   3. The Administrative Appeals Tribunal ("the Tribunal") was required to consider whether the applicants, if required to return to Indonesia, faced a real chance of serious harm into the reasonably foreseeable future. A question for the Tribunal in considering the reasonably foreseeable future was whether the religious tolerance the Indonesian government had shown to LDII since 2008 might diminish. The Tribunal failed to address this question in considering the reasonably foreseeable future. This was a jurisdictional error.

   4. On 9 July 2018 there was a hearing before the Tribunal. … gave evidence, including that in 2011 she obtained a protection visa in Australia based on being an Islam Jamaah practitioner. The Tribunal did not address the relevance or significance of this part of … evidence to an assessment of whether the applicants were entitled to protection visas. The Tribunal failed to give proper and genuine consideration to this part of … evidence in a manner which involved jurisdictional error.

   5. A question for the Tribunal was whether the applicant mother, who was the victim of a sexual assault in 1996, faced a real chance of further sexual assault if required to return to Indonesia. Paragraph 3.97 of a DFAT report before the Tribunal stated in part that "over 33 per cent of women aged 15 to 64 years had experienced physical or sexual violence in their lifetime". Yet the Tribunal found at [56] that there is not “a real chance that the applicant [mother] will be subject to serious harm”. The Tribunal failed to reconcile the information in the report (stating that women aged between 15 and 64 face a high chance of physical or sexual violence) with its conclusion that the applicant mother does not face a real chance of sexual violence. This permits the Court to conclude that the Tribunal did not give proper and genuine consideration to the information in the report in a manner which involved jurisdictional error.

Ground 3

1. In relation to ground 3, Mr Zipser of counsel on behalf of the applicants contended that there was a basis for the Tribunal to consider whether government support for the LDII after 2008 might diminish. There is no country information to support that contention. No such claim was raised by the applicants and no such claim fairly arose on the material before the Tribunal. Accordingly a claim that was not raised and does not fairly arise on the material before the Tribunal cannot give rise to any jurisdictional error. This ground is, in substance, an invitation to the Court to engage in impermissible merits review. The Tribunal correctly identified the country information and it was a matter for the Tribunal as to what weight to give the country information. The Tribunal correctly identified the relevant law and the reasons as summarised above reflect a genuine intellectual engagement with the applicants’ claims, submissions and evidence. The Tribunal’s reasons, in paragraphs 49, 56, 73, 76, 82 and 86, support the Court finding that the Tribunal correctly applied the test in relation to the reasonably foreseeable future. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, the proposition that the Tribunal failed to give proper and genuine consideration to the evidence of the refugee witness is without substance. It is apparent that the refugee witness’ evidence was correctly identified by the Tribunal as summarised above and that the Tribunal identified logical rational reasons for giving that evidence little weight, including the lack of independence and the long-standing friendship with the applicants, and preferring country information. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, this was only advanced in respect of the second applicant arising in respect of the separate decision concerning the second applicant. This ground in reality invites impermissible merits review. It was a matter for the Tribunal as to the weight to give county information and the Tribunal’s reasons reflect a genuine intellectual engagement with the second applicant’s claims and the evidence including country information. The adverse findings were open for the reasons given by the Tribunal as summarised in the separate written reasons of this Court concerning the second applicant. No jurisdictional error as alleged in ground 5 is made out.

2. As the application fails to make out any jurisdictional error in relation to the first decision of the Tribunal in respect of the first, third and fourth applicant, and as the Court has separately found no jurisdictional error in relation to the decision concerning the second applicant, the amended application is dismissed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 22 September 2020