FMW17 v Minister for Home Affairs

[2019] FCCA 242

FEDERAL CIRCUIT COURT OF AUSTRALIA

FMW17 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 242

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visas – whether the adverse credibility findings by the Authority lack an evident and intelligible justification – whether the adverse credibility findings were open on the material before the Authority – whether the Authority conducted the review in accordance with the statutory regime – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 476

First Applicant: FMW17

Second Applicant: FMX17

Third Applicant: FMY17

Fourth Applicant: FMZ17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2309 of 2018

Judgment of: Judge Street

Hearing date: 5 February 2019

Date of Last Submission: 5 February 2019

Delivered at: Sydney

Delivered on: 5 February 2019

REPRESENTATION

The Applicants appeared in person.

Solicitors for the Respondents: Mr L Dennis
Minter Ellison

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $7,000.00.

DATE OF ORDER: 5 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2309 of 2018

FMW17

First Applicant

FMX17

Second Applicant

FMY17

Third Applicant

FMZ17

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 27 July 2018 affirming a decision of the delegate not to grant the applicants Safe Haven Enterprise visas.

2. The applicants were found to be citizens of India and their claims were assessed against that country. The first and second applicants are the parents of the third and fourth applicants who are children. The first applicant was appointed litigation guardian of the third and fourth applicants by order of a Registrar of the Court on 13 September 2018.

3. The first and second applicants arrived in Australia on 25 June 2013 as unauthorised maritime arrivals. The first applicant claimed to fear harm at the hands of his wife’s stepfather because he does not approve of their marriage and because the first applicant is of a lower caste. The first applicant claimed the stepfather is a powerful member of the Dravida Munnetra Party (“DMK”) and was violent and threatening. The first applicant claimed he feared harm on account of his involvement with the Vidudhalai Chiruthaigal Party (“VCP”), his conversion to Islam, and because of a data breach. The first applicant also feared that a photograph of him standing with a group holding a banner saying “Sri Lankan refugees” might be in the media.

4. The second applicant claimed to fear harm at the hands of her stepfather on account of her marriage to the first applicant and on account of the first applicant’s political activities. The third and fourth applicants were included as members of the family unit.

5. On 18 September 2017, the delegate found the applicants failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The matter was the subject of a differently constituted Immigration Assessment Authority decision on 17 November 2017, which was the subject of orders setting the same aside and remitting it for further review on 14 June 2018.

6. On 26 June 2018, the Authority, as currently constituted, wrote to the applicants informing them that their application for the visa had been remitted to the Authority for re-consideration. The migration representative on behalf of the applicants provided submissions and material to the Authority for the purpose of the review. On 17 July 2018, the Authority exercised its power under s 473DC of the Act to invite the applicants to an interview. On 17 July 2018, a further letter was sent inviting the applicants to attend an interview to take place on 23 July 2018. Both the first and second applicants attended an interview on 23 July 2018 and the applicants’ migration representative also attended the interviews. The interview of the first and second applicants were conducted separately.

7. The Authority in its reasons identified the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority referred to the conduct of the interview pursuant to s 473DC of the Act and it is apparent on the face of the Authority’s reasons that the Authority had regard to that information.

8. The Authority referred to having obtained other new information and referred to the submissions and new information provided by the applicants’ migration representative. The Authority, on the face of its reasons, considered the new information that was provided in accordance with the provisions of s 473DD of the Act. On the face of the Authority’s reasons, the Authority had regard to and took into account the whole of s 473DD of the Act in considering the new information in determining whether or not there were exceptional circumstances to justify considering the same.

9. On a clear reading of the Authority’s reasons, the Authority applied a preliminary assessment in determining whether the new information met the requirements of s 473DD of the Act. I do not accept that the Authority engaged in any final determination of credibility in the deliberation under s 473DD of the Act. The Authority’s reasons expressly refer, in the course of considering the new information, to the substance of both limbs of s 473DD of the Act. There is no proper basis to infer that the Authority misconstrued or misapplied the provisions of s 473DD of the Act in determining whether there were exceptional circumstances to justify considering the new information.

10. The Authority identified the claims of both the first and second applicants and, in particular, that the first applicant, who is of Tamil ethnicity, is of Thotttinayaka caste and that his wife, the second applicant, is of Kavar Nayakar caste, which is said to be a higher caste.

11. The Authority noted that the second applicant raised no fear or claims to harm in her arrival interview of July 2013, and that it was later that the second applicant claimed that she was of a different caste which is higher and different than that of her husband.

12. The Authority referred to the political claims advanced by the first applicant. The Authority found that the first applicant’s explanation for the different names given at the arrival interview was not due to an interpretation error. The Authority considered the first applicant’s claim in relation to his political activities and the claims changed and found they were inconsistent. In that regard, the Authority referred to the fact the first applicant made no claims regarding political opinion when first interviewed. The Authority found it difficult to believe that the first applicant would not have mentioned political claims if they were true particularly since they were one of his key claims and a source of the first applicant’s fears. The Authority found the first applicant claimed he had participated in protests but provided little information.

13. The Authority referred to the first applicant claiming he was jailed for two days at his 2014 interview, but he did not know when, even approximately. The Authority found it difficult to believe the first applicant would not have recalled approximately or even the year this occurred as he had never otherwise been jailed. The Authority noted that the claim that he had been jailed had not been mentioned in any statement or his protection interview. It was in those circumstances the Authority did not accept the first applicant was jailed for two days.

14. The Authority referred to complaints allegedly made by the first applicant. The Authority found it difficult to believe that only the first applicant and his friend would make a police complaint. There was no indication that the first applicant or his friend were involved in the clash or that they knew any of the people involved. The Authority found it odd that volunteers of the Vidudhalai Ciruthaigal political party (“VCCP”) would make a complaint, rather than party officials. The Authority also took into account that no complaint was made by colleagues or friends or relatives of the persons killed which made it difficult to believe.

15. The Authority also considered that the ADMK would enquire of police about whether relatives of the injured made complaints lacked credibility, as this would reveal themselves and put them at further risk. The Authority found it is not credible that the applicant would know if the ADMK made police inquiries or what was asked. The Authority found the first applicant’s account of his friend V’s death was inconsistent and lacked details and credibility.

16. The Authority did not accept the first applicant and his friend had made police complaints or that ADMK threatened the applicant or that his friend V was killed. The Authority found the first applicant had fabricated these claims.

17. The Authority referred to an alleged attack on the first applicant by members of the ADMK party in September 2011. The Authority found the first applicant’s account was inconsistent and lacked credibility. The Authority did not accept the first applicant was attacked or injured by the ADMK as claimed and did not accept the police told ADMK to kill him. The Authority did not accept ADMK or anyone threatened or intended to harm or kill the first applicant.

18. The Authority referred to the first applicant’s claim that he was in hiding after the ADMK attack in September 2011 which led to his departure from India in the year of 2013. The Authority found this claim was inconsistent with the first applicant’s claims at a protection interview that he returned to studies after the claimed September 2011 attack. The Authority referred to having listened to the first applicant’s arrival interview and considered that the first applicant added the hiding claim as an after-thought later in the interview and it was contrary to his very detailed information that he lived at home and college. The Authority did not accept the first applicant was in hiding from the ADMK or political opponents. The Authority did not accept the first applicant was in hiding from September 2011 until his departure in 2013.

19. The Authority found that the applicants do not face real a chance of any harm upon return on account of the first applicant’s political activity.

20. The Authority referred to the second applicant providing three different accounts of her father’s death. The Authority referred to the second applicant as well as the first applicant claiming her stepfather and her mother had killed her father with a knife. The Authority referred to the second applicant’s claim that the parents were arrested and released due to the stepfather’s political connections. The Authority noted that in a previous account the second applicant claimed that her father had been killed by his own family, which was inconsistent with her claims at the arrival interview and in her subsequent statements. The Authority noted that the second applicant’s initial claims at her arrival interview were that her father died in a motorcycle accident in 2005. The Authority found the applicant’s assertion in that regard was clear and unequivocal.

21. The Authority did not accept the second applicant’s explanation as she did not want to be returned to India or for her sister to have problems. The Authority found the explanation did not make sense. The Authority found if the murder claim were true the second applicant would have a stronger protection claim, and did not accept that the second applicant would not mention the murder at the point because she did not want to return to India. The Authority did not accept that mentioning it would make problems for her sister. The Authority also found it difficult to accept that second applicant would have made up the account of a motorbike death of her father if, in fact, he had been murdered.

22. The Authority did not accept the second applicant’s stepfather and mother killed the second applicant’s father. The Authority found that claim to have been fabricated.

23. The Authority referred to the caste claims and found that both the first applicant and the second applicant are, in fact, from the same Naikkar class but that the first applicant is from a lower subcaste within that caste. The Authority accepted that the children were also in that caste.

24. The Authority referred to the second applicant’s claims and exploring with the second applicant why she failed to mention such a key claim about her inter-caste marriage, parental disapproval and physical harm and threats. The Authority did not accept the second applicant was threatened or harmed by the stepfather or that he or her mother did not approve of the marriage relationship as the second applicant did not mention this key aspect of her claim in her arrival interview despite having been given many opportunities to provide that information and make her claims. The Authority did not accept that the second applicant would not have advanced that claim at the arrival interview if she had a fear of harm due to her inter-caste marriage. The Authority found the second applicant was adding to her claims.

25. The Authority also referred to the second applicant’s assertion that her stepfather supported her until 2013 and found this inconsistent with the claim that her stepfather and mother disapproved with the marriage or that she was harmed by her family.

26. The Authority referred to the second applicant’s scars, but was not satisfied the marks mean that they were inflicted upon her by her stepfather or anyone. The Authority did not accept the second applicant’s stepfather or mother disapproved of the applicants’ marriage.

27. The Authority referred to the failure of the first applicant to mention claims of concern in respect of caste, if they were true. The Authority referred to the first applicant’s explanation that he did not know his wife’s family saw his caste as lower until after their marriage. The Authority did not accept that as a credible contention.

28. The Authority referred to the claim that the applicants were in hiding, and did not accept that the applicants were in hiding from the stepfather or the second applicant’s family. The Authority considered the applicants’ added the hiding claims in their 2015 statement and later interviews to enhance their protection claims. The Authority considered the applicants continued to live their lives and continued to work, and considered if the police or anyone was looking for them they could have been easily found. The Authority did not accept police complaints were lodged against the first applicant by the stepfather or that the police asked neighbours to inform him to attend the police station.

29. The Authority found that the applicants continued to add to their claims as the application progressed, and found that the second applicant’s stepfather did not burn or beat her or harm her. The Authority did not accept the stepfather has threatened to kill the second applicant and children or the first applicant, and did not accept that the stepfather or the second applicant’s family disapproved of her marriage.

30. The Authority referred to the data breach and took into account that it did not accept the applicants’ family were assaulted or their house was broken into in 2014 and found the applicants’ accounts in that regard to have been fabricated.

31. The Authority found the first and second applicants were not credible witnesses and did not accept that they feared harm from the second applicant’s stepfather or mother because of their marriage. The Authority did not accept they were threatened or harmed. The Authority did not accept that they faced harm from their families upon return.

32. The Authority referred to the first applicant’s claim to fear harm by reason of his conversion to Islam. The Authority was not satisfied the first applicant has actually converted to Islam.

33. The Authority was not satisfied the data breach placed the applicants at any risk of harm upon return. The Authority found the applicants do not face any harm upon return to India.

34. The Authority was not satisfied that there is a real chance that the applicants would face serious harm for the reasons claimed or for any reason or a combination of reasons in s 5J of the Act, now or in the reasonably foreseeable future if they return to India.

35. The Authority found the applicants do not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found the applicants do meet the criteria in s 36(2)(a) of the Act.

36. The Authority was not satisfied that the applicants face a real risk of significant harm in the future. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to India from Australia, there is a real risk the applicants would suffer significant harm.

37. The Authority found the applicants do not meet the criteria under s 36(2)(aa) of the Act. The Authority found the applicants do not meet the definition of “refugee” or the complementary protection criterion, and it follows that the applicants do not meet the family unit criterion under s 36(2)(b) or s 36(2)(c) of the Act. The Authority affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 21 August 2018. On 13 September 2018, a Registrar of the Court made orders giving the applicants an opportunity to file an amended application, affidavit evidence and submissions.

2. The applicants did file an affidavit which annexed country information, which the applicants identified as going towards their claims which was not before the Authority. The first respondent objected to the tender of the material on the grounds of relevance. The Court rejected the tender of the affidavit on the ground that it was material that went to the applicants’ claims and was not before the Authority. This Court cannot make fresh findings of fact in respect of the applicants’ claims. On the face of the affidavit the first respondent was correct in contending that the information was irrelevant.

3. At the commencement of the hearing, the Court explained to both applicants the nature of the hearing and both the first and second applicants confirmed that they understood the nature of hearing as explained by the Court.

4. From the bar table, the first applicant referred to the fact that he had not been believed and took issue with the adverse findings by the Authority. The second applicant also asserted that she had told the truth and took issue with the adverse findings by the Authority. The Authority provided detailed, logical and rational decisions for why the Authority did not accept the credibility of the applicants and, in particular, the failure to raise particular claims earlier at the time of the arrival interview, as well as inconsistency in respect of the claims as well as the lack of credibility in the contentions advanced, as summarised above. It is apparent that the Authority conducted an interview with the applicants and explored the concerns in relation to credibility with the applicants at that interview.

5. The adverse credibility findings as summarised above cannot be said to lack an evident and intelligible justification. On the face of the Authority’s reasons, those adverse credibility findings were open on the material before the Authority and the applicants’ disagreement with the adverse credibility findings cannot make out any relevant legal error by the Authority. On the face of the Authority’s decision, the Authority conducted the review in accordance with the statutory regime. Nothing said by either applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds of the application are as follows:

   1. I could find all my documents is good.

   2. I believe my case.

   3. I am very hard I can win case.

2. The grounds are incapable of identifying any jurisdiction error by the Authority. No jurisdictional error is made out by the application.

3. Accordingly, the application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 March 2019