GOL18 v Minister for Immigration
[2019] FCCA 2711
•19 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOL18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2711 |
| Catchwords: MIGRATION – Application for safe haven enterprise visa – no jurisdictional error established on the part of the Authority – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 473CB, 473DC. |
| Cases cited: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. |
| Applicant: | GOL18 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 1293 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 19 September 2019 |
| Date of Last Submission: | 19 September 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 19 September 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R. Tien of Guru Legal |
| Solicitors for the First Respondent: | Mr McLaren of Minter Ellison |
ORDERS
The application for review filed on 13 December 2018 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1293 of 2018
| GOL18 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India from Punjab. He arrived in Australia as an unauthorised maritime arrival in February 2013.
On 3 June 2016 the applicant made application for a Safe Haven Enterprise Visa (SHEV).
On 12 October 2018 a delegate of the Minister refused to grant the applicant a protection visa.
On 8 November 2018, the Immigration Assessment Authority (the Authority), having had the matter referred to it for review, affirmed the decision of the delegate not to grant the applicant a SHEV.
On 13 December 2018 the applicant filed an application for review of the decision of the Authority. The grounds for review are set out as follows:
Grounds of Application
1. The Second Respondent has not taken into account all relevant considerations, which was an error of law;
2. The Second Respondent made an unreasonable conclusion about the Applicant’s credibility, which was an error of law.
The claims of the applicant for protection are as set out in [6] of the reasons of the Authority, which are as follows:
·While working as a DJ at a wedding in a village near his home, the applicant was assaulted by a group of angry men from the wedding party who were annoyed that he had not played the entirety of their song request.
·Police were called to the incident at the wedding and they arrested the main perpetrator, who had been held by the attendees at the wedding. Other perpetrators were waiting for the applicant on street, but they fled when police arrived.
·The next day the arresting officer forcefully persuaded the applicant not to press charges saying if he did not compromise, they will charge them both and lock them up. The applicant was terrified of being locked up. The police system is corrupt and unfair. He believes the authorities will not assist him to keep safe.
·Fifteen days later the men returned to the applicant’s village with 20 acquaintances on motorbikes brandishing hoki and karparn swords. They threatened the applicant and his friend that they would kill them and he would never work as a DJ again.
·He could not relocate in India as his only family is in Ropar and without their support he had no options of being able to support himself.
·Five months before the visa application was lodged (early 2016) the applicant’s family told him that the men returned to the village looking for him.
·The applicant fears the men will kill him if he returns to India and their pursuit is still active.
·The applicant’s brother was assaulted by unknown men in January 2017 who were asking about the applicant.
At [4] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (the Act).
At [5] of its reasons, the Authority recorded that no other information had been received from the applicant.
At [7] and [8] of its reasons, the Authority set out the relevant criteria for refugee assessment as respectively provided for under s. 5H(1) of the Act and s. 5J of the Act.
At [9] that [25] inclusive of its reasons, the Authority analysed the claims made by the applicant and provided reasons as to why it did not consider the applicant to be a credible witness. Those reasons included that the applicant’s account of alleged events was vague, lacked detail and was inconsistent.
As to Ground 1 of the application for review, Mr Tien, on behalf of the applicant, submitted that a relevant consideration which was failed to be taken into account by the Authority was the provision to the Authority of a medical certificate together with supporting medical test results and a pharmacy account. [1]
[1] CB pages 124 – 127 inclusive.
The argument of the applicant in respect of ground 1 was threefold as to the medical certificate, namely:
a)that the Authority erred in its reliance on country information regarding the prevalence of fraudulent documents in India when it gave the contents of the medical certificate no weight;
b)that the authority should have undertaken inquiries pursuant to the provisions of section 473DC of the Act so as to ascertain the genuineness of the certificate; and
c)there was illogicality in the Authority’s reasoning about the issues it identified at paragraphs 22-23 inclusive of its reasons.
As to the Authority’s reliance upon country information regarding the prevalence of fraudulent documents in India, it was submitted by the applicant that the DFAT country information report on India, when discussing the question of fraudulent documents, did not specifically refer to medical certificates as being vulnerable to forgery. The applicant further referred to information stating that the making of false documents in India constituted an offence under the relevant Indian penal code and, therefore, the forgery of a medical certificate would constitute an unnecessarily high risk for a medical professional in India.
Firstly, the relevant country report referred to in the delegate’s decision was the DFAT country information report on India dated 15 July 2015, not the report dated 17 October 2018 as referred to by the applicant. The Authority noted that when considering the medical certificate it had taken into account the prevalence of fraudulent documentation in the country information referred to it. It can therefore be inferred that the Authority had had regard to the information contained in the 2015 report rather than the 2018 country information report referred to the applicant’s submissions.
The relevant part of the 2015 country information report relating to the falsification of documentation in India was referred to as follows:
5.27 Forgery, making false documents and using false documents are offences under sections 463-489 of the Indian Penal Code. However, a range of sources suggest that the manufacture and use of fraudulent documents is prevalent in India, including for immigration purposes. Examples of fraudulent documents include civil registry documents, curriculums vitae (CVs), letters of employment, financial documents, educational qualifications, newspaper articles, political party registration, and even websites created specifically to reinforce other documents. According to a report prepared by the Australian Department of Immigration and Border Protection (DIBP) in 2009-10 and released under freedom of information, ‘Identity fraud is a significant risk in the Indian caseload given how easily genuine documents with fraudulent details can be obtained’. The absence of a centralised national identity database compounds this problem.
5.28 Although there are no classes of documents which are not open to fraud, some types may be more reliable than others. Passports are generally relatively more difficult to forge than other types of identity documents. However, genuine passports can be issued using fraudulent information. For example, in May 2013, India’s Ministry of External Affairs revoked 127 passports issued to Sri Lankan nationals residing in Tamil Nadu. The passports were issued on the basis of false supporting documents.
5.29 Document fraud is a significant industry in India. Complete packages of fake documents can be arranged and provided by an organised network of professional agents. For example, a Special Investigation Team from the Chandigarh Police arrested four people in March 2012 for their involvement in a large-scale document fraud operation which had been operating since 2003. The operation allegedly produced fake bank statements, life insurance policies, property documents and income tax returns which were used to support hundreds of applications for travel abroad, including to the UK and Canada.
There is well-accepted authority to the effect that it is a matter for the decision‑maker when considering the weight of country information put before it. [2]
[2] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at
[13] per Gray, Tamberlin and Lander JJ; CM117 v Minister for Home Affairs & Anor [2019]
FCA 1193 at [94] per Greenwood J.
There was no error on the part of the Tribunal in relying upon the country information in the circumstances as set out by it at [22] and [23] of its reasons. As to those paragraphs, it is also clear, from a perusal of the purported hospital report and the three other documents said to go with it that:
a)The hospital report is undated.
b)The report purports to have been signed by two alleged practitioners, one said to be a physician and the other said to be a nursing superintendent. Why a hospital report would need to be signed by both rather than just by the treating physician is unusual.
c)Though the Authority had recorded that the report stated that it was page 1 of 4, in circumstances where there was only one page for the hospital report, such error –was immaterial having regard to other findings made which lead to its decision. [3] It is clear that the purported hospital report is at least accompanied by three other documents (as seen on page 125-127 inclusive of court book). The descriptive error on the part of the Authority was of no moment.
d)The report recorded that Dr Gill was a specialist in diabetes, arthritis, cardiac, chest diseases and pain management. But the report purports to record not only the alleged manner in which, and place at which, the brother of the applicant allegedly sustained injuries after an attack, but also the fact that the injuries allegedly sustained by the brother were injuries not immediately referable to the specialties held by Dr Gill. The injuries recorded as having been sustained by the brother were a sharp cut under the left eye, and a hairline fracture to the right clavicle, which is a part of the shoulder. Such was alluded to in [22] of the reasons of the Authority. One other factor of interest is that purportedly attached to the hospital report are blood and renal function test results which were said to have been undertaken in respect of what were other than kidney or blood-related injuries. Of further interest is the fact that in the report it was recorded that X-rays of the chest and lumbar spine, which were performed, revealed the fracture of the clavicle. As the clavicle forms part of the shoulder structure of a person’s body, it is difficult to see how chest X-rays and lumbar spine X-rays would have been able to reveal such a shoulder fracture.
[3] Hossain v Minister for Immigration (2018) 259 ALR 1 at [40] and [72] per Nettle and Edelman
JJ.; Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at [45] -
[46] per Bell, Gageler and Keane JJ.
To the extent that the Authority recorded that there were a number of anomalies in relation to the medical certificate and accompanying documents, it was entirely within its province to do so, having closely analysed the contents of the report, as well as such accompanying documents.
As to paragraph [23] of its reasons, it was further reasonable and entirely open for the Authority to have considered it odd that a report would describe in substantial detail the circumstances in which the brother allegedly was stopped by three unknown persons, the place where he was stopped, the nature of the treatment having been handed out to him, the absence of any reasons for his being beaten, and the fact that he had been brought to the hospital by a taxi driver. The finding of the Authority that the inclusion of such detail was unusual was open on the face of the document. It was also of interest that though it was recorded in the report that the brother was said to have been badly injured, and subsequently admitted into emergency care, the brother was nonetheless discharged from the hospital the following day.
In all of the circumstances, the reliance upon country information by the Authority in dismissing the medical report as a fraudulent document was open to it. No error has been shown in that regard.
Secondly, the applicant complains that if the Authority was dissatisfied with the authenticity of the document, it could have verified the genuineness of the medical certificate by making inquiries of the doctor or clinic to confirm its genuineness. The applicant referred to the powers in s. 473DC of the Act in that regard. Section 473DC provides as follows:
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
The applicant was, no doubt, relying upon what was said in Minister for Immigration and Citizenship v SZIAI & Anor [2009] 259 ALR 429 at [25] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.”
The above obiter comments of the High Court have been considered in DJF16 v Minister for Home Affairs [2018] FCA 1285 at [17] per Logan J, and the Full Court in DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [72] per Collier, Middleton and Rangiah JJ. The decisions in the above cases noted that it was questionable whether there was a duty imposed by Part 7AA of the Act on the Authority to make inquiry of the kind referred to by the High Court in SZIAI, namely, an obvious inquiry about a critical fact easily ascertained.
This Court is not satisfied that the Authority erred in failing to make the inquiry which was suggested as being its duty by the applicant. No jurisdictional error has been demonstrated.
Thirdly, the applicant submits that it was illogical for the Authority to make the findings that it did at [22]-[25] inclusive of its reasons. For the reasons advanced above, there was no such illogicality or unreasonableness on the part of the Authority. The Authority examined all of the claims made by the applicant and found his evidence to be particularly vague, inconsistent, lacking in detail and incredible. An Authority is entitled to form a view as to the nature of the evidence before it, after having closely examined the contents of such evidence. That is what the Authority has done in this case. No jurisdictional error has been established in relation to the applicant’s complaint about illogicality.
The Court further relies, in that regard, upon the decision of Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] 69 AAR 210 at [52] and [55] where it was said:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”
Any error on the part of the Authority in describing the medical report as being 1 of 4, as referred to earlier, was immaterial to the overall findings of the Authority as to the applicant lacking credibility.
As to ground 2 of the application for review, the applicant was found by the Authority to be a witness who was not credible. It did so after closely examining all of the evidence placed before it, and after considering the inconsistencies in such evidence. It was entitled to do so. As was said by Nettle J in SZUSH v Minister for Immigration and Border Protection; CZBO v Minister for Immigration and Border Protection [2016] HCATrans 112:
“…it is not the law that the credit and reliability of an applicant’s evidence is irrelevant in the determination of a review of an application for a protection visa. Where the establishment of facts is dependent on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability, and findings must be made according to that assessment (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] 207 ALR 12 at 21-22 [42] – [44] per Gummow and Hayne JJ).”
It cannot be said that no other rational or logical decision‑maker could not have made the same decision as did the Authority. As was said and Crennon and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:
“130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
Nor could it be said that the Authority, when analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact. [4]
[4] Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25]-[27].
The applicant has not established jurisdictional error on the part of the Authority.
The application for review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 27 September 2019
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