GPC18 v Minister for Immigration

[2019] FCCA 2536

FEDERAL CIRCUIT COURT OF AUSTRALIA

GPC18 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2536

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in Indonesia – first and second applicants not believed – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424, 424A, 438, 441A

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 236 FCR 593
Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration v Li (2013) 249 CLR 332

First Applicant: GPC18

Second Applicant: GPD18

Third Applicant: GPE18

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3559 of 2018

Judgment of: Judge Driver

Hearing date: 9 September 2019

Delivered at: Sydney

Delivered on: 9 September 2019

REPRESENTATION

The First and Second Applicants appeared in person

Solicitors for the Respondents: Ms K Pieri of HWL Ebsworth

INTERLOCUTORY ORDERS

1. The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3559 of 2018

GPC18

First Applicant

GPD18

Second Applicant

GPE18

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 7 December 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. 

2. Background facts relating to the applicants’ claims for protection and the decision of the Tribunal on them were set out in the Minister’s submissions filed on 30 August 2019. 

3. The applicants are citizens of Indonesia who arrived in Australia on 2 July 2015 as holders of visitor (subclass 600) visas.  By orders made by Registrar Cho on 24 January 2019, the first applicant was appointed as the litigation guardian of the third applicant, his daughter who is a minor, in these proceedings.

4. On 21 September 2015, the applicants applied for protection (class XA) visas (protection visas).[1]  The applicants originally applied for protection visas on 12 August 2015,[2] however, they were informed by the Minister’s Department on 17 August 2015 that the application was invalid.[3]

   [1] Court Book (CB) 97

   [2] CB 1

   [3] CB 92

5. The first applicant claimed that he left Indonesia as he became the target of political supporters of President Joko Widodo, after they accused him of betraying the President.  The second applicant claimed that she worked as a midwife and that the applicants resided in government housing.  She claimed that after the first applicant withdrew his support for the President, supporters of President Widodo came to the applicants’ home under the pretence that they were seeking medicine from the second applicant.  When the supporters were granted access to the applicants’ home, the supporters attempted to strangle the first applicant and stamped on him, causing a back injury.  The third applicant witnessed this attack and was traumatised by it.  The applicants also claimed that this attack was reported to the police and the second applicant’s employer, however no firm action was taken by the police in relation to the alleged attack.

6. The applicants attended their scheduled protection visa interview on 4 December 2015.  During this interview, the first applicant claimed that he worked as a campaign manager for the Indonesian Democratic Party of Struggle (PDI-P) from 2009 until November 2014.  He claimed that he was targeted by the PDI-P as he planned to move to another political party. He also claimed that he was attacked at the second applicant’s workplace in January 2015 and that he stayed in Kalimantan for two months following this attack.

7. On 10 December 2015, the delegate refused to grant the protection visas on the basis that the delegate did not accept the applicants’ claims for protection.[4]

   [4] CB 233

8. On the same date, the delegate issued a certificate and notification regarding the disclosure of certain information under s.438 of the Migration Act 1958 (Cth) (Migration Act).[5]  The certificate relates to a document contained in folio 49 which is found at page 250 of the court book and notifies that the applicants had been receiving ASA/SRSS financial assistance.

   [5] CB 251

9. On 18 December 2015, the applicants sought review of the delegate’s decision.[6]  The applicants did not attach a copy of the delegate’s decision to their review application.

   [6] CB 252

10. On 11 April 2018, the Tribunal emailed the first applicant, requesting that he provide his protection visa refusal notification letter and protection visa decision record.[7]  On 12 April 2018, the first applicant sent an email to the Tribunal attaching Visa Entitlement Verification Online checks for the applicants.[8]  On the same date the first applicant sent a few emails to the Tribunal.  These emails appear to be photos taken of the protection visa refusal notification letter and protection visa decision record however, the documents were cropped so the full documents cannot be seen.[9]

    [7] CB 263

    [8] CB 264

    [9] CB 272

11. On 16 April 2018, the Tribunal invited the applicants to attend a hearing.[10]

    [10] CB 318

12. On 19 April 2018, the Minister’s Department provided the Tribunal with a copy of the protection visa refusal notification letter and protection visa decision record.[11]

    [11] CB 323

13. On 3 May 2018, the Tribunal emailed the Minister’s Department asking for copies of the visitor visa application which was granted on 18 June 2016.[12]  Based on the Tribunal decision outlined below, it appears that the Tribunal received these documents.

    [12] CB 325

14. The Tribunal also at some point obtained the Minister’s departmental records which indicated that the applicants had applied unsuccessfully for two previous visitor visas.  The two visitor visa applications were refused on 11 April 2014 and 19 May 2014 and can be found at Annexures KXP1 and KXP2 of the affidavit of Kerrie Pieri made on 3 May 2019.

15. On 26 June 2018, the first and second applicants appeared before the Tribunal to give evidence and present arguments with the assistance of an Indonesian interpreter.[13]

    [13] CB 329

16. On 26 June 2018, the Tribunal posted out a recording of the hearing.[14]

    [14] CB 332

17. On 12 July 2018, the Tribunal sent a letter to the applicants inviting them to comment on or respond to information.[15]  The three pieces of information were that:

    a)the Minister’s departmental records indicated that the applicants had previously applied for visitor visas to visit Australia on two occasions in 2014 and these applications were refused on 19 May 2014 and 11 April 2014;

    b)the visitor visa application file contained information which indicated that in the months before the applicants travelled to Australia in July 2015, the applicants were able to live and work in Ngawi in East Java and send their daughter to school in Magetan, East Java;

    c)inconsistencies in the second applicant’s evidence during the Minister’s departmental interview about the work that the first applicant did; and

    d)inconsistencies in the first and second applicants’ accounts about the incident in January 2015 where the first applicant was attacked by men on motorcycles.

    [15] CB 336

18. The letter invited the applicants to give comments about these issues in an interview.  The first and second applicants appeared before the Tribunal to give evidence and present arguments on this on 19 July 2018 with the assistance of an interpreter.[16]

    [16] CB 341

19. On 10 December 2018 the Tribunal notified the applicants of its decision, made on 7 December 2018, to affirm the decision of the delegate.[17]

    [17] CB 345

Tribunal’s decision

1. The Tribunal found that the s.438 certificate was invalid and that at the hearing, it had disclosed the content to the applicants and noted that it was not relevant to the issues under review.[18]

   [18] CB 348 at [11] to [13]

2. The Tribunal highlighted that there were significant concerns about the credibility of the applicants’ claims that the first applicant was at risk of political persecution in Indonesia.[19]

   [19] CB 351 at [33]

3. The Tribunal expressed concerns about the first applicant’s claim that he worked as a PDI-P campaign manager,[20] and noted at [38] that it put to the applicants under s.424A that the second applicant gave inconsistent evidence at the Minister’s departmental interview about what the first applicant did for work.

   [20] CB 353 at [36] to [38]

4. The Tribunal also expressed concerns about the inconsistent, vague and changing evidence about the attack on the first applicant,[21] and noted at [41] that it put inconsistencies between the first and second applicants’ evidence in the Minister’s departmental interview on this incident to the applicants to comment pursuant to s.424A.

   [21] CB 353 at [39] to [43]

5. The Tribunal considered that the fact that the applicants were living in Ngawi Regency in the months before they left Indonesia cast doubt on the claims that the first applicant was at risk of being assaulted or assassinated because of his political opinion.[22] It noted at [46] that it put to the applicants pursuant to s.424A that their visitor visa application contained information which suggesting that in the months before the applicants travelled to Australia in July 2015, they were able to live and work in Ngawi in East Java and send their daughter to school in that area.

   [22] CB 355 at [44] to [50]

6. The Tribunal was also concerned that the first applicant had not provided any documentation corroborating his claim to have been a member of the PDI-P or that he was previously employed by the PDI-P as a campaign manager.[23]

   [23] CB 357 at [51] to [52]

7. As a result, the Tribunal rejected the applicants’ claims in their entirety as lacking in credibility.[24]  Accordingly, the Tribunal found that there is no real chance that the first applicant will face serious harm or significant harm if he returns to Indonesia in the foreseeable future for reasons of his actual or imputed political opinion or for any other reason.[25]

   [24] CB 357 at [53]

   [25] CB 358 at [54]

8. Since the claims of the second applicant rested upon the claims of the first applicant, the Tribunal did not accept that the second applicant will face harm of any type because of her husband’s profile.[26]  The Tribunal also came to the same conclusions in relation to the third applicant.[27]  The Tribunal was also not satisfied in relation to complementary protection.[28]

   [26] CB 358 at [55]

   [27] CB 358 at [57]

   [28] CB 359 at [60]

The present proceedings

1. These proceedings began with a show cause application filed on 24 January 2019.  The applicants continue to rely upon that application.  There are two grounds in it: 

   1.The Administrative Appeals Tribunal failed to comply with Section 424 of the Migration Act.

   2.The Administrative Appeals Tribunal made a jurisdictional error because the Tribunal took irrelevant factors into consideration when exercising its decision-making powers and failed to give proper consideration to the First Applicant's circumstances.

2. The application was supported by a short affidavit filed with it, which I received.  In addition to the court book filed on 14 March 2019, I also received into evidence the affidavit of the Minister’s solicitor filed on 3 May 2019, to which is exhibited documents relating to unsuccessful visitor visa applications made by the applicants in 2014.  Those unsuccessful applications were considered by the Tribunal.  I also received as a bundle[29] documents relating to the successful visitor visa application that the applicants made in 2015.  That application was also considered by the Tribunal. 

   [29] Exhibit R1

3. Both the applicants and the Minister filed pre-hearing written submissions.  I also heard oral submissions from them.  The applicants plainly received some assistance in preparing their written submissions.  In those submissions, the applicants ask that the Court give them the benefit of the doubt.  That request may be misdirected.  Viewed as a proposition that the Tribunal should have given the applicants the benefit of the doubt, the short answer is that the Tribunal was in no doubt about the lack of credibility of the applicants’ claims. 

4. In their written submissions, the applicants take issue with [60] of the Tribunal decision, being its complementary protection assessment.  To the extent that that is put forward to support a proposition that the Tribunal did not consider complementary protection separately, the short answer is that, having rejected the applicants’ factual claims, there was nothing else for the complementary protection assessment to bear upon.

5. In their application, the applicants refer to s.424 of the Migration Act. That may have been intended to be a reference to s.424A. The Tribunal did have regard to information it regarded as adverse in the 2014 and 2015 visitor visa applications. That information was, however, put to the applicants for comment in accordance with the Tribunal’s obligations under s.424A.

6. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced. 

Ground 1

1. The first ground asserts that the Tribunal failed to comply with s.424 of the Migration Act.

2. Section 424 of the Migration Act states:

   (1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on review.

   (2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   (3)A written invitation under subsection (2) must be given to the person:

   (a)except where paragraph (b) applies - by one of the methods specified in section 441A; or

   (b)if the person is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

3. The Tribunal obtained the following information:

   a)the protection visa refusal notification letter and decision record dated 10 December 2015;

   b)the Minister’s departmental records which indicated that the applicants had previously applied for visitor visas to visit Australia on two occasions in 2014; and

   c)the visitor visa application file with a grant date of 18 June 2015.

4. The Tribunal had regard to the protection visa refusal notification letter and decision record as it noted at [2] that the delegate refused to grant the applicants protection visas.  It also had regard to the protection visa decision record at [38] where it noted that the delegate’s decision record noted that the first applicant’s political activism was not mentioned when the second applicant was first asked about the first applicant’s employment.  

5. The Tribunal had regard to the Minister’s departmental records, and noted that they put to the first applicant pursuant to s.424A of the Migration Act that the Minister’s departmental records indicated that the applicants had previously applied for visitor visas to visit Australia on two occasions in 2014 and these applications were refused on 19 May 2014 and 11 April 2014.[30]

   [30] At [49]

6. The Tribunal also had regard to the applicants’ visitor visa applications at [46] to [48], where it noted that it put to the applicants the contents of the applications to comment.  The Tribunal at [48] concluded that the fact that the second applicant was working in their home area in the months before they travelled to Australia and that their daughter was continuing to attend school in Magetan also casted doubts on their claims that they were at risk of being targeted by political supports of President Widodo who were looking for the first applicant.

7. Therefore, the Tribunal had regard to the information that it obtained, meaning that it complied with s.424(1)(a) of the Migration Act.

8. Further, the Tribunal invited the applicants to comment on or respond to this information orally and therefore, it exercised its discretion under s.424A in the applicants’ favour. This written invitation was sent by email on 12 July 2018 which is a method of communication pursuant to s.441A(5)(b) of the Migration Act and therefore, the Tribunal complied with s.424(3)(a) of the Migration Act. Therefore, the Minister submits that s.424 of the Migration Act was complied with.

9. To the extent that the applicants are suggesting that there was a contravention of s 424A of the Migration Act, this section provides that the Tribunal must give to the applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review.

10. The Tribunal sent a letter to the applicants on 12 July 2018, inviting them to comment on or respond to information. The letter outlined the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review in accordance with s.424A(1)(a) of the Migration Act. The letter also explained why the information was relevant to the review and the consequences of it being relied on pursuant to s.424A(1)(b). The letter also invited the applicants to comment on or respond to the information at a hearing in accordance with s.424A(1)(c) of the Migration Act.

11. Therefore, I accept that the Tribunal complied with its obligations under s.424A of the Migration Act and that this ground cannot be made out.

Ground 2

1. The second ground makes two assertions, being:

   a)the Tribunal took irrelevant factors into consideration; and

   b)the Tribunal failed to give proper consideration to the first applicant’s circumstances.

2. In relation to the first assertion, an administrative tribunal falls into jurisdictional error if it relies on irrelevant material.[31]  Further, a decision made by reference to considerations irrelevant to statutory purpose or beyond the Tribunal’s scope is beyond power.[32]

   [31] Craig v State of South Australia (1995) 184 CLR 163 at 179

   [32] Minister for Immigration v Li (2013) 249 CLR 332, 350 at [26]

3. For the ground of “irrelevant considerations” to be made out, it must be established by evidence that the Tribunal did in fact consider an irrelevant matter in exercising its powers.

4. The applicants have not particularised what irrelevant considerations were taken into account.  To the extent that the applicants may be alleging that the Tribunal’s consideration of the applicants’ previous visitor visa file was an irrelevant consideration, the applicants’ previous visitor visa file was not irrelevant.  This is because the information contained in the visitor visa file suggested that in the months before the applicants travelled to Australia in July 2015, they were able to live and work in Ngawi in East Java and send their daughter to school in Magetan, East Java.[33]  As the Tribunal outlined, this may have been relevant to the Tribunal’s conclusion that none of the applicants were at risk of harm in Ngawi because of the political profile of the first applicant and it might also cast doubt on the applicants’ claims that they relocated to Kalimantan for two months in January 2015 in an attempt to avoid harm.  Therefore, the information in the previous visitor visa application was directly relevant to the applicants’ claims for protection.

   [33] At [47]

1. To the extent that the applicants are challenging the Tribunal’s use of the Minister’s departmental records which indicated that the applicants had previously applied for a visitor visa on two occasions, the Tribunal stated that this information does not undermine the applicants’ claims for protection but it did suggest to the Tribunal that the applicants may have had other motivations for travelling to Australia, which reinforced the Tribunal’s concerns that the applicants did not tell the truth about the reasons they travelled to Australia.[34]  Therefore, this consideration was relevant as it went to the Tribunal’s consideration on the credibility of the applicants’ account about why they left Indonesia and travelled to Australia.

   [34] At [50]

2. Accordingly, the Minister submits that the Tribunal did not take into account any irrelevant considerations.

3. In relation to the second assertion, a failure to consider a claim or contention may amount to jurisdictional error where that contention, if made good, would justify concluding that the applicant had made out a criterion he was required to satisfy for the grant of the visa.[35]

   [35] Applicant WAEE v Minister for Immigration (2003) 236 FCR 593, 604 at [45] to [48]

4. The Tribunal summarised the applicants’ claims at [17] to [30], including the claims made in their protection visa application, in the first and second applicants’ interviews before the delegate and also their oral evidence before the Tribunal on both 26 June 2018 and 19 July 2018.

5. The Tribunal then made assessments and comprehensive findings in relation to the claims from [31] to [52], and noted that it had concerns about the credibility of the applicants.  Without further particulars, and given the Tribunal’s detailed considerations of the applicants’ claims as outlined above, there is nothing to indicate that the Tribunal has failed to consider a claim.

6. In their oral submissions, the applicants stated emphatically that they will not return to Indonesia.  They appear genuine in that determination.  I invited them to consider, with the assistance of a migration agent, whether any other visa options may be open to them.  That is a matter for them.  As to their protection claims, they were comprehensively considered by the Tribunal and rejected.  I see no arguable case of jurisdictional error in relation to either the Tribunal decision or the process it followed.

Conclusion

1. I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed, under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The first applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

3. I will order that the first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       10 September 2019