GOR18 v Minister for Immigration

[2019] FCCA 2963

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOR18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2963

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473D

Applicant: GOR18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1306 of 2018

Judgment of: Judge Vasta

Hearing date: 1 August 2019

Date of Last Submission: 1 August 2019

Delivered at: Brisbane

Delivered on: 1 August 2019

REPRESENTATION

Solicitors for the Applicant: LEGAL GURU

Solicitors for the First Respondent: CLAYTON UTZ

ORDERS

1. That the name of the First Respondent be amended to reflect “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”

2. That the Application filed 17 December 2018 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1306 of 2018

GOR18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 12 November 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate of the Minister not to grant the Applicant, GOR18, a Protection Visa.  On 17 December 2018, the Applicant filed an originating application asking this Court to review that decision.

2. In short, the Applicant is a citizen of India.  He is of the Punjab and is of the Sikh religion.  In December 2010, his cousin told him that a group of five or six young men in their early 20s from a DAV College in Bathinda were teasing her and making sexual advances.  A month later, which would take it to January 2011, the Applicant saw these men outside the college and approached them.  He asked them to stop harassing his cousin.  He said that the men then beat him with sticks and baseball bats until he was unconscious.  There were onlookers, but they did not intervene.

3. The Applicant said that his cousin called the father of the Applicant.  The father took him to a Dr Singh.  The Applicant said he was bruised and swollen all over his body.  The father complained to the college principal about the gang beating, but the principal took the side of the students.  The principal told the students of the complaint, and the students then threatened the Applicant and told him that they would kill him if he complained again.  The parents of the Applicant did not go to the police because the parents of the boys were powerful and could have had them charged with an offence.

4. Two or three months later, the Applicant met the same people in the market.  They threatened that they would kill him if he reported them.  After this, the Applicant’s father arranged for the Applicant to leave India.  The Applicant said that he left legally on his passport and he flew to Malaysia.  He said that he was in Malaysia for two years, and then he arranged for a people smuggler to take him to Australia.

5. He says that he will not be safe anywhere in India as the men will attempt to kill him.  He said the parents of the attackers are powerful people, and they will not be charged and they will be able to bribe police and officials, and that the police will not protect the Applicant against these aggressors.

6. In later submissions, the migration agent of the Applicant noted that these men had continued to harass and torment the family of the Applicant ever since he had left India.  There was a medical certificate in relation to the Applicant’s mother dated 15 February 2013 which shows injuries she claims she sustained by these men.  That attack was not reported to police.

7. On 18 April 2013, the mother was admitted to a specialty hospital with heart problems she claims were exacerbated by the attack and the ongoing harassment.  A copy of her hospital discharge was provided.  The father, it was claimed, was attacked by the same men in April 2015.  A copy of a medical certificate was provided.  That attack was reported, and a copy of the letter to police in Bathinda was attached with the names of the attackers.

8. At the Protection Visa interview, the Applicant added that these boys continued to attack, harass, scare and threaten his parents, and that they were outside his parents’ home six or seven months ago scaring them, and also at the market.

9. The IAA assessed these claims very thoroughly.  The IAA listened to the interviews given by the Applicant and came to the conclusion that the Applicant was not a credible witness.  They noted that he had to be prompted on many occasions, and he gave a vague, piecemeal and general account of his experiences which lacked details.

10. With regard to the attack, the first attack, the Applicant gave some details in the interview which were somewhat different to his application.  When one looks at all the versions he has given, he had said sometimes that he was beaten into unconsciousness; other times he has not said that.  There was little information about how his father came to his aid or his injuries.  In the statement that he made, he claimed his cousin called his father, but at interview he said his cousin was inside the college and was not present when this happened.

11. The account of the injuries was vague and inconsistent.  At interview he said that his internal injuries were swollen ankles and arms, and in the statement he said that they did not stop the beating until he was unconscious.  The IAA asked rhetorically how he would know that if he were unconscious; that is, how would he know when the beating stopped.  The number of boys who attacked him ranged from three or four to six to four.

12. At the protection interview when asked about his injuries, he said he had internal injuries with swollen ankles and arms, not mentioning that he was unconscious.  He did not mention that he had injuries to his left hand, eyes or face.  When he was prompted that there was a medical certificate, that he had given, that detailed those injuries, he agreed to that.  The “subsequent encounters” account was also vague and inconsistent according to the IAA.  The timing of when he saw these boys again was also inconsistent.

13. The IAA then considered the actual tale.  They had trouble believing that the Applicant would approach five or six young men who carried baseball bats and sticks.  It was odd that he would approach these boys rather than the cousin first approaching the college about the boys if she was concerned about the advances.

14. The Applicant said that there were many onlookers to the fight but that the Applicant’s cousin was not there because she went inside.  And the IAA said that they found it difficult to believe that the Applicant would have approached these boys if the cousin was not around.  And even if the cousin had previously identified the boys to the Applicant, it is not clear how the boys would understand or identify who the Applicant’s cousin was if she were not around.

15. At paragraph 17 of their reasons, the IAA noted that it was not credible that the Applicant’s father would lodge a complaint with the principal if he did not know the name of the boys.  The Applicant then said that they found out their names later.  When asked how they found out their names, the Applicant said that it was because they attacked his parents and they were living in the town close by.  However, the Applicant could not explain beyond that how they found out their names.

16. When the delegate put concerns that they could not have complained to the principal if they did not know the attackers’ names, the Applicant then added a new account saying that he knew them by a nickname.  The IAA said that, having listened to the interview, they considered that the Applicant was making up this account as he went along in response to the delegate’s concerns, rather than recounting a lived experience.

17. The IAA did not accept the Applicant went to Malaysia to avoid harm because the attack was some six months before he went to Malaysia.  And further, the IAA did not find it is credible that the Applicant was pursued and would continue to be pursued eight years later, particularly as he has been overseas since then.

18. The Applicant was asked about the attacks on his parents.  Obviously, the Applicant was not there and would only be recounting what he had been told by the parents but the Applicant was vague in his description, according to the IAA.  The IAA said that they found it difficult to believe that the Applicant would not have more information about what happened to his parents beyond the basic level that he had provided.

19. The IAA noted that the Applicant did not make any claims that his parents were beaten in the statutory declaration that he gave to the department.  The IAA said:

    23….While I accept he may elaborate his claims at interview, I find it difficult to believe that he would not mention this at all in his statement, particularly given he claimed it happened as frequently as every two or three months.

20. The IAA noted that the father apparently, because of the police report that had been attached, reported the attack to police in 2015.  But in the police report, there was no mention of the frequency of attacks or prior threats.  And it is difficult to believe, as the IAA found, that if one made a police complaint, that they would not have included information about all the events up to that point.  And if there was a complaint made in 2015, why weren’t there subsequent complaints, given the claimed frequency?

21. The IAA looked at all of the medical certificates and the police reports.  The police report was problematic in that there were no date stamps on it other than that of a notary public of 27 September 2018. The police report was supposedly dated April 2016 while the Applicant’s statement to the department was dated 21 October 2016. The IAA found it hard to believe that the Applicant would not have mentioned a police complaint that had been made some six months earlier in his statement.

22. And further, the police complaint is at odds with the Applicant’s claim in his statement that they did not complain to the police after the initial attack because the boys were powerful people and could have them charged.  The IAA noted that the police report was a typed note on blank paper, which appeared to have been manufactured to enhance the claims provided at interview, and no weight was placed on the document.

23. The medical certificates from Dr Singh were in respect of the Applicant, dated 21 December 2010; the Applicant’s mother, on 15 February 2013; and the father, on 21 November 2015.  The IAA noted that the certificates described similar injuries in all of them.  For instance, swollen eyes, dark circles or headache, red face or cheeks, or left hand inflamed.  The certificates all stated that the Applicant, the mother and the father are to visit for five days and the certificates all list eight or nine medications.  The 2010 certificate notes that it was issued on 30 September 2016 on the basis of an old record.

24. The claim was that the same doctor wrote the certificates, but the IAA considered it odd that the certificates appear so similar in terms of their symptoms and treatment and advice to visit for five days, given they relate to three different incidents over a five-year period. 

25. The IAA found it difficult to believe that the Applicant, who says he was beaten with baseball bats and sticks until he was unconscious, ended up with similar injuries to his parents and was given exactly the same sort of treatment as they were three years after and then five years after his actual assault.

26. The IAA found it difficult to believe that the Applicant would not have required more treatment and possibly an admission, given the severity of the injuries.  The 2010 certificate does not mention that the Applicant was unconscious; rather, it states that he was crying in pain.  And it does not refer to any head injury, which is not consistent with the claims that he was beaten until he was unconscious.  And whilst the Applicant claimed he suffered internal injuries, the certificate does not refer to any internal injuries.

27. The mother, who the Applicant claimed had been beaten by these people and then two months later gone into hospital because of an exacerbation of some pre-existing conditions, had a hospital discharge summary.  That hospital discharge summary did not mention the Applicant’s mother’s previous injuries in her medical history, which is odd that those injuries were said to have been inflicted only two months before.

28. The IAA said this:

    33. Given the prevalence of fraudulent documents as discussed in the DFAT report in the referred material and given my concerns about the certificates, I place no weight on the medical certificates.

    34. I accept the Max Hospital discharge summary is a genuine document…

    35. Having considered the evidence, I do not accept the applicant was threatened or beaten by college boys or unknown men or HS and VS.  I do not accept his parents or cousin was harassed.  I do not accept the applicant’s parents were attacked and beaten.  I do not accept that the boys or anyone is looking for him. The applicant’s evidence was particularly vague, inconsistent, lacked details and [was] not credible.

29. It follows, then, that the IAA found that they did not accept that the Applicant faces any risk of harm upon return to India for those reasons, or that anyone was looking for him.  Having come to those conclusions, the Applicant did not end up meeting the requirements of the definition of “refugee”, nor did he come within the criteria for the complementary protection assessment.

30. The grounds of the application were very simple. They are:

    1. The Second Respondent did not take into account all relevant considerations, which was an error of law,

    2. The Second Respondent took into account irrelevant considerations, which was an error of law. 

31. Mr Auclair, who appears for the Applicant, filed written submissions and made oral submissions here before me today.  He particularised the two grounds.

32. With regard to not taking into account all relevant considerations, he said that the IAA relied on country information to dismiss the medical certificates and that the medical certificates were given no weight because of the DFAT material.

33. The Applicant went to the DFAT material and has submitted that the DFAT country information does not specifically state that medical certificates are vulnerable to forgery, and it is just that all documents are vulnerable to fraud.  The submission from the Applicant was that it would pose an unnecessarily high risk for a medical professional to risk a criminal penalty by providing a false document, which somewhat begs the question that that assumes that it is the medical professional who has given a false document, rather than the Applicant who has given a false document.

34. However, the submission has been put that if the IAA has only used the country information to not consider a medical certificate, then they have not considered all relevant material because the medical certificate was, therefore, relevant.

35. The ground really misstates what the IAA has said.  The IAA has looked at what it is that the Applicant has said at all times.  What the Applicant has said, that his injuries were as a result of the beating, are not consistent with what is contained in the medical certificate.  The medical certificate says that it was issued in 2016 based on records from 2010.  The medical certificates describe similar injuries by the same group of people on three separate occasions, 2010, 2013, 2015; to the Applicant, to his mother, and then to his father.

36. The IAA looked at the fact that three separate attacks all ended up with extremely similar injuries and that the injuries in the certificate are inconsistent with what the Applicant says has occurred.  Those aspects have to be looked at not only just in and of themselves when just looking at the certificates, but also have to be looked at with all of the other material that the IAA has assessed.  It would seem to me that the IAA was entitled to put no reliance or no weight on those certificates for all of those reasons.

37. In any event, the ground is that the IAA did not consider relevant material.  The IAA did consider that material, it just did not give it weight.  If it did not consider that material, then it would have not talked about having considered the material.

38. The problem with the way in which the ground is phrased is that it claims that the IAA did not consider relevant material; that is, it did not consider something that it was mandatorily obliged to consider.  The medical certificates were put before the IAA as evidence and, therefore, the IAA was bound to consider it.  In that consideration, as detailed in paragraphs 25, 26, 27, 28, 29, 30, 31, 32 and then 33, it shows that there has been consideration given to those documents.  The conclusion is that there has been no weight placed on them.

39. I do not consider that the Applicant’s submission that if no weight has been placed upon a document that means that it has not been considered by the IAA is a correct statement.  Therefore, I do not find that there is any jurisdictional error that has been illustrated.

40. The submission by the Applicant went further and said that the IAA could have verified the genuineness of the medical certificate by contacting the doctor or clinic to confirm its existence.  This is a misconception of what the IAA is there to do.

41. The Applicant does understand that it is for the Applicant to prove its case and to present information, but the Applicant says that s.473DC does allow the IAA to have power to obtain information. But that really should only be exercised in the most rare of circumstances, where it would be legally unreasonable for it not to do that.

42. Having given the reasons as to why the medical certificate would have no weight, there was nothing there that would show that it was legally unreasonable for the IAA to not consider using its own power to try and verify the documents.  I do not find there is any jurisdictional error illustrated in that claim.

43. The second ground is that the Second Respondent took into account irrelevant considerations, which was an error of law.  Again, there seemed to be some misapprehension as to what that ground actually means.  What that actually means is that the IAA is alleged to have looked at a particular matter which it was prohibited to look at.

44. What the Applicant has said in the written submissions and in the verbal submissions before me today is that the Second Respondent had said this at paragraph 23:

    Further, I note the applicant did not make any claims that his parents were beaten, attacked or harassed in his statutory declaration.  While I accept he may elaborate his claims at interview, I find it difficult to believe he would not mention this at all in his statement, particularly given he claimed it happened as frequently as every two or three months.

45. The statutory declaration itself specifically mentions that the following was only a summary of the claims for protection and not an exhaustive statement of the reason or reasons why the Applicant cannot return to India, and that the Applicant would provide more detailed information regarding his protection claims during the interview with the case officer.

46. The Applicant says that it was unreasonable to paint the Applicant as a non-credible witness because he did not mention that his parents were beaten, attacked or harassed in his statutory declaration.  If that were the only reason that the Applicant was considered not to be credible, there may be some substance in that complaint.  However, that has nothing to do with taking into account irrelevant considerations.  There has not been shown to me any matter that the IAA was mandatorily prohibited from considering that they did consider.

1. But as to the substance of this claim which, really, is that the IAA has made a finding that was simply not open on the evidence, one has to again look at the reasons as a whole.  The failure to talk about the parents’ troubles in his statement was but one of many factors that the IAA looked at as to whether the Applicant was a credible witness.

2. The other matters that the IAA spoke about, the claims which included the Applicant approaching a group of men who were already armed with baseball bats and sticks, that the cousin was not with him but the cousin somehow told the father but how that happened with the cousin not being there is unclear, that the number of people who attacked him changed, the fact of his being unconscious or not being unconscious, the changing of the injuries that he suffered, and many other aspects all contributed to his credibility problem.

3. This particular aspect that the Applicant now points to is but one of the myriad circumstances to which the IAA pointed, to come to the conclusion that he was not credible.  Whether that particular aspect was reasonable or was open to be used by the IAA must be answered in the affirmative. When one looks at that particular aspect in combination with every other aspect, it assists in drawing an inference that the Applicant has a lack of credibility.

4. Therefore, I do not find that there is any jurisdictional error that has been established in relation to that particular ground or any of the other complaints that have been made.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  23 October 2019