Wzaux v Minister for Immigration

[2015] FCCA 1017

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAUX v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1017

Catchwords:
MIGRATION – Review of decision of Refugee Review Tribunal – decision to refuse Protection (Class XA) visa – Indian citizen – alleged relationship with member of another caste – whether applicant’s evidence credible – whether well-founded fear of persecution – whether real risk of suffering significant harm as a necessary and foreseeable consequence of removal from Australia to India – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Part 7, Division 4, ss.36(2)(a) and (aa), 422B, 424AA, 425, 425A, 426A, 441A(4), 464, 476

Migration Regulations 1994 (Cth), reg.4.35D

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
DZAAA & Ors v Minister for Immigration & Anor [2011] FMCA 434; (2011) 250 FLR 423
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration & Ethic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412
MZZZL v Minister for Immigration & Anor [2014] FCCA 1309
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
WZAPM v Minister for Immigration & Anor [2013] FCCA 266
WZATK v Minister for Immigration & Border Protection [2014] FCA 1174
WZATK v Minister for Immigration & Border Protection & Anor [2015] HCASL 41

Applicant: WZAUX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: PEG 353 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 21 April 2015

Date of Last Submission: 21 April 2015

Delivered at: Perth

Delivered on: 29 April 2015

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Ms L Gallagher

Solicitors for the Respondents: Sparke Helmore

ORDERS (made on 21 April 2015)

1. The application be dismissed.

2. Written Reasons for Judgment be published from Chambers at a later date.

3. The applicant pay the first respondent’s costs in the amount of $5,800 by 30 June 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 353 of 2014

WZAUX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Under s.476 of the Migration Act1958 (Cth) (“Migration Act”) the applicant on 7 November 2014 filed an application (“Judicial Review Application”) seeking review of a decision of the Migration Review Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision made on 9 October 2014 affirmed a decision by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”), made on 4 May 2014 to refuse the applicant a Protection (Class XA) visa (“Protection Visa”) under the Migration Act.

2. At hearing on 21 April 2015 the Court made the following orders:

   1.The application be dismissed.

   2.Written Reasons for Judgment be published from Chambers at a later date.

   3.The applicant pay the first respondent’s costs in the amount of $5,800 by 30 June 2015.

   These are the Reasons for Judgment referred to in order 2 above.

Background to the Judicial Review Application

1. The background to the Judicial Review Application is as follows:

   a)the applicant was born on 1 April 1987 in India: Court Book (“CB”) 21;

   b)the applicant arrived in Australia in January 2009 as a student: CB 124 at [9];

   c)the applicant returned to India for a month in mid-2010, the stated purpose of the return being to visit his girlfriend: CB 124 at [10];

   d)the applicant lodged a claim for a Protection Visa on 4 April 2013: CB 1-44;

   e)in his application form, the applicant claimed that he left India because he fell in love with a girl from a higher caste and when her family came to know about the relationship they attacked him: CB 27;

   f)the applicant claimed that he had returned to India on one occasion since coming to Australia and was subsequently attacked and warned not to return to India or the girl’s family would find and kill him: CB 28;

   g)the applicant claimed that the girl’s family attacked him as he “hurt their ego, attitude and status in society”: CB 31, and that the authorities would be unable to protect him as many of the girl’s relatives are in “high authority positions” and can therefore misuse authorities such as the police: CB 32;

   h)on 14 May 2014 the Delegate refused the application a Protection Visa: Delegate’s Decision at CB 97-110;

   i)on 9 June 2014 the applicant lodged an application with the Tribunal for review of the Delegate’s Decision: CB 111-112;

   j)on 22 August 2014 the Tribunal invited the applicant to appear to give evidence and present arguments to the Tribunal: CB 115-116; and

   k)on 8 October 2014 the applicant appeared at the Tribunal hearing and gave evidence and presented arguments: CB 117-119.

Tribunal Decision

1. In the Tribunal Decision the Tribunal found that:

   a)the applicant’s claims were not credible and that the applicant was not threatened or harmed in the past because of a relationship with a girl from a higher caste: CB 125 at [15];

   b)the applicant’s claimed fear of harm should he return to India was not genuine and was not well-founded and that he did not face harm as a result of his past relationship in the reasonably foreseeable future if he were to return to India: CB 125 at [15];

   c)the applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act: CB 125 at [16]; and

   d)there was nothing else before the Tribunal to indicate there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm, and as a result the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Migration Act: CB 125 at [17].

2. The Tribunal concluded that the applicant did not meet either the refugee criterion in s.36(2)(a) or the alternative complementary protection criterion in s.36(2)(aa) of the Migration Act. The Tribunal therefore affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 122, CB 123 at [8] and CB 126 at [19].

Judicial Review Application to the Court, orders made and hearing

1. On 7 November 2014 the applicant lodged the Judicial Review Application. The application contained two grounds of review which are set out and considered below.

2. On 21 January 2015 a Registrar of the Court made orders permitting the applicant to file and serve an amended application or any affidavit evidence by 18 February 2015, and submissions and a list of authorities 14 days prior to the hearing, which was listed for 21 April 2015. No amended application, affidavit evidence, submissions or list of authorities was filed or served prior to the hearing.

3. At hearing the applicant had little to say in support of the grounds of review set out in the Judicial Review Application. The applicant said that he had no documents to submit, and that he had told everything to the Tribunal. The applicant reiterated that there was a fight between the two families concerned. The applicant had more to say about costs than he did about the substance of the Judicial Review Application, and in that regard, sought (with the permission of the Court) some assistance from an unidentified lady sitting in the Court gallery as to what to say with respect to the issue of costs. That assistance appears to have been about what to say, not about any lack of understanding of what was being said by the Court. The Court notes that when the applicant appeared before the Tribunal he had the assistance of a Hindi interpreter: CB 117. When the applicant made the Judicial Review Application in response to the question “Does the applicant require an interpreter?” the applicant checked the “No” box: Judicial Review Application, page 4. The Court as presently constituted is keenly aware of the importance of providing an interpreter in circumstances where an applicant would not otherwise understand the proceedings or be able to take part in the proceedings: see DZAAA & Ors v Minister for Immigration & Anor [2011] FMCA 434; (2011) 250 FLR 423 at [36]-[57] per Lucev FM; WZAPM v Minister for Immigration & Anor [2013] FCCA 266 at [21]-[33] per Judge Lucev; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [21] per Judge Lucev. This was not, however, a case in which the applicant did not understand what was being said, or did not have the capacity to appropriately respond; and, further, the applicant did not seek to have an interpreter provided for these proceedings.

Ground 1

1. Ground 1 is as follows:

   1)The Refugee Review Tribunal made an error in deciding my case. The decision of the Refugee Review Tribunal was affected by jurisdictional error because of the following reason:

   ○The Tribunal did not give me an opportunity to comment on information which was credible, relevant and significant and from which the reviewer drew conclusions adverse to my claims.

   I was not given a reasonable and appropriate opportunity to comment on the likely inconsistencies that the Tribunal found. I was pressed to give answers and information to the Tribunal and I was such in an emotional state that I could not describe the incidents in much details and precision as I wanted to.

   ○The Tribunal did not take into consideration relevant information.

   The Tribunal failed to consider the fact that I was emotionally traumatised by the different incidents where I was the victim of attack and abuse, which affected the characterisation and accounts of the incidents.

2. On 22 August 2014 the Tribunal sent the applicant a hearing invitation (“Hearing Invitation”) which complied with the applicable legislative requirements. The Hearing Invitation:

   a)invited the applicant to appear before the Tribunal to give evidence: Migration Act, s.425(1);

   b)provided notice of the specified day, time and place of the hearing: Migration Act, s.425A(l );

   c)provided a period of notice to the applicant for the giving of information, comments or a response that exceeded the prescribed period of 14 days after the notice was received: Migration Regulations 1994 (Cth), reg.4.35D (“Migration Regulations”);

   d)was sent to the applicant by one of the means provided for in s.441A of the Migration Act (by mail to the address provided in the application for review): Migration Act, s 441A(4); and

   e)contained a statement about the effect of s.426A of the Migration Act (as required by s.425A(4) of the Migration Act) - namely, the options available to the Tribunal if the applicant failed to appear before it.

3. The Hearing Invitation advised the applicant as follows:

   Please read and complete the enclosed ‘Response to hearing invitation’ form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish the Tribunal to consider. Any documents or written arguments sent to the Tribunal should be in English or be translated by a qualified translator.

   Hearing Invitation at CB 116.

4. There is nothing to indicate that the applicant took advantage of the opportunity afforded by the Hearing Invitation to submit any new information, documents or written arguments to the Tribunal.

5. The core factual findings of the Tribunal are set out as follows:

   13.The Tribunal is concerned by the inconsistencies in the applicant’s claims and finds they go to the core of his claims. That is, they raise doubts about whether he was ever harmed as a result of a relationship, given the inconsistencies between what he says happened before he left India (attacked many times by her family versus one altercation with boys from her village) and what he says happened in mid-2010 (claim of being very badly hurt versus claim of only being manhandled). The Tribunal also found the applicant’s description of how he met … [the girl] to be vague and unconvincing.

   14The Tribunal is also concerned by the delay in seeking protection, particularly after returning from India in 2010. The applicant said he did not apply for a Protection visa at that time because he did not know he could until 2011, and then he delayed further because he was concerned about the costs involved. However, the Tribunal is not satisfied by this explanation as it was within the applicant’s ability as an educated person, already familiar with the process of applying for a visa, to make appropriate enquiries and seek help at an earlier time. The Tribunal has considered the applicant’s migration history as set out in the delegate’s decision (a copy of which was provided to the Tribunal by the applicant) and considers he only applied for the Protection visa in 2013 when he had no other avenues for a continued lawful stay.

   15.On consideration of all the evidence before it, including the obvious inconsistencies in his account, the Tribunal finds the claims are not credible. The Tribunal finds the applicant was not threatened or harmed in the past because of a relationship with a girl from a higher caste, and therefore finds he would not face such harm should he return to India in the reasonably foreseeable future. The Tribunal finds the expressed fear of harm should he return to India is not genuine and is not well-founded.

   CB 125 at [13]-[15].

6. The inconsistency concerning what happened before the applicant left India, and whether he was attacked many times by the girl’s family as opposed to one altercation with boys from her village, was a matter specifically put to the applicant by the Tribunal: CB 124 at [11], third dot point. The issue of what happened in mid-2010, and the applicant’s claim of being very badly hurt as opposed to being just manhandled was also expressly put to the applicant at the Tribunal hearing: CB 124 at [11], fifth dot point.

7. In relation to the applicant’s description of how he met the girl, that was a matter which the Tribunal also raised and discussed with the applicant at hearing, including asking a series of questions about the girl’s name, the applicant’s and the girl’s castes, how they met, and what harm the applicant claimed to have suffered, and in respect of which the Tribunal found that the applicant’s answers were unconvincing and inconsistent, and cited examples thereof: CB 124 at [11], first dot point.

8. The Tribunal also observed a further fundamental inconsistency in relation to the application in that the applicant asserted that “things settled down” after the 2010 incident because the applicant’s and the girl’s parents had spoken, and the applicant’s parents convinced the girl’s parents that the applicant would not go to her village to see her again, which the Tribunal observed was inconsistent with the central claim that the matter was not settled and that the girl’s family still wished to harm the applicant: CB 124-125 at [11], sixth dot point.

9. To the extent that the Tribunal was also concerned about the delay in seeking protection, particularly after returning from India in 2010, it is apparent that that was also a matter which was put to and discussed with the applicant at the Tribunal hearing: CB 125 at [14].

10. All of the evidence, including the “obvious inconsistencies”, was taken into account by the Tribunal in finding that the applicant’s claims were not credible. Those inconsistencies were squarely put to the applicant, and it is evident that the applicant responded to them.

11. In the above circumstances, where:

    a)the applicant was given an opportunity to provide documents, and information and comment in writing, prior to the Tribunal hearing; and

    b)the Tribunal put matters upon which it perceived there might be inconsistencies, or matters otherwise of concern to the Tribunal, to the applicant at the Tribunal hearing, and subsequently made factual findings in relation to the matters put to the applicant,

    it cannot be said that the Tribunal did not give the applicant an opportunity to comment on information which was credible, relevant and significant and from which the Tribunal drew conclusions adverse to the applicant’s claims. For the same reasons, it cannot be said, as ground 1 asserts, that the applicant “was not given a reasonable and appropriate opportunity to comment on the likely inconsistencies that the Tribunal found”. The Tribunal approached the task of determining the applicant’s credit by reference to proper principles, and had proper regard to the evidence which bore upon the applicant’s credit, and the application of those principles. There was no error in that approach. This was not a case where it could be said that there was no evidence warranting the credibility finding made by the Tribunal. In the circumstances, the Tribunal’s approach was correct, and the determination of credit was solely a matter for the Tribunal, the determination being based on evidence and being reasonable in the circumstances: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J. The Tribunal’s findings on credibility are a function of the Tribunal par excellence: Durairajasingham at [67] per McHugh J. The Tribunal is not required to hold a positive state of disbelief before making credibility findings: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O’Connor, Branson and Marshall JJ. Fact finding, including findings as to credibility, is within the jurisdiction of the Tribunal, and as such, is not reviewable by this Court, as this Court cannot review the merits of the Tribunal Decision if, as here, the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ.

12. In this case, the Tribunal’s findings of fact, including its assessment of the applicant’s credibility and the credibility of his claims, and its expression of its inability to be satisfied of the applicant’s claims, were open to the Tribunal on the evidence before it and for the reasons that it gave.

13. The Court further observes that for the purposes of the Tribunal’s obligations under s.424AA of the Migration Act, “information” does not include the existence of doubts, inconsistencies or the absence of evidence: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (“SZBYR”). It "does not encompass the tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc”: VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at [24] per Finn and Stone JJ, cited by the High Court of Australia in SZBYR at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. The Tribunal was not obliged to put to the applicant the basis of its findings that it was not satisfied that he was threatened or harmed in the past because of a relationship with a girl from a higher caste. Despite that, the Tribunal did discuss with the applicant the various inconsistencies and issues upon which it relied to make factual findings. Whilst such information was not required to be put to the applicant for comment, the fact that the Tribunal did put various matters to the applicant in the manner described above, reveals no error, let alone jurisdictional error, in the approach of the Tribunal at hearing or in the Tribunal Decision.

1. Neither the Tribunal Hearing Record: CB 117-119, which indicates a hearing which took place over close to 50 minutes, nor the Tribunal Decision, evidences that the applicant raised with the Tribunal, at any time during the course of the hearing, that he had felt that he had been incapacitated as a result of his “emotional state” in the course of giving his evidence, or that the applicant was “pressed” to give answers and information. The Tribunal Decision does not reveal that the applicant had any difficulty in participating in the Tribunal hearing. The applicant, who had an opportunity by reason of the Registrar’s orders on 21 January 2015, to file evidence of the Tribunal hearing (including the transcript of that hearing) and of any incapacity at the time of the Tribunal hearing, has not produced any evidence as to the conduct of the Tribunal hearing, or to indicate that he was medically unfit to meaningfully participate in the Tribunal hearing. In the absence of evidence these aspects of ground 1 of the Judicial Review Application are not made out.

2. The Tribunal did consider the applicant’s claim that he had suffered from depression and whether this accounted for the delay in applying for the Protection Visa or the inconsistencies in his claims: CB 125 at [12]. This claim is separate and antecedent to the applicant’s claim that he was in an emotional state whilst giving evidence at the Tribunal hearing. In respect of the claim of depression the Tribunal:

   … confirmed however, that he had never been diagnosed by a medical practitioner with the condition nor had he received any treatment. He admitted he worked as a cleaner at this time.

   CB 125 at [12].

3. Given the lack of medical evidence to support the claim of depression, and the applicant’s ability to work during this period, the Tribunal was not satisfied the applicant suffered a medical depression and was not satisfied that any such condition accounted for the delay in seeking the Protection Visa, or that any such condition accounted for the inconsistencies in the applicant’s claims: CB 125 at [12]. The findings made by the Tribunal on this issue were findings of fact open to the Tribunal on the available evidence, and as such, for reasons set out above: see [19] above, are within the Tribunal’s fact-finding province, and are not matters to be interfered with by this Court exercising powers of judicial review.

4. For all of the above reasons, ground 1 reveals no jurisdictional error in the Tribunal Decision.

Ground 2

1. Ground 2 is as follows:

   2)There was a denial of procedural fairness.

   ●The Refugee Review Tribunal was not fair and reasonable in reaching a decision due to taking into account irrelevant material as mentioned above.

2. In relation to ground 2, no particulars are provided as to how the applicant claims the Tribunal denied the applicant procedural fairness or was “not fair and reasonable”. Nor are any particulars provided as to what “irrelevant material” the Tribunal took into account.

3. As to ground 2 there is nothing in the Tribunal Decision which leads to a concern that the Tribunal failed to afford procedural fairness to the applicant. The Tribunal was aware of, and had regard to, each of the applicant’s claims. For reasons set out in relation to ground 1, the Tribunal approached its task properly, and did not fail to take into account a relevant consideration or take into account an irrelevant consideration.

4. The requirements with respect to procedural fairness for a Tribunal hearing an application for review of a Delegate’s Decision are set out exhaustively in Part 7, Division 4 of the Migration Act: Migration Act, s.422B. Nothing indicates that the Tribunal failed to accord the applicant procedural fairness or failed to carry out a review in accordance with Part 7, Division 4 of the Migration Act.

5. As this was a case to which s.422B of the Migration Act applied, the Tribunal was not required to afford the applicant “normal” procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62. The applicant was entitled only to the rights afforded to him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified by the applicant, nor is any evident on the materials before the Court. Rather, the Tribunal complied with its statutory obligation in s.425 of the Migration Act by validly inviting the applicant to the Tribunal hearing: see [10]-[11] above; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152. The applicant attended the Tribunal hearing and gave evidence in support of his claims, assisted by an interpreter.

6. The Court finds that there was no failure by the Tribunal to afford the applicant the required procedural fairness under the Migration Act.

7. For the above reasons, ground 2 reveals no jurisdictional error in the Tribunal Decision.

Conclusions and orders

1. As there is no jurisdictional error in the Tribunal Decision, it is a privative clause decision within the meaning of s.474 of the Migration Act. It follows that the application must be dismissed.

2. The Minister sought costs, and the applicant made a submission that he was unable to pay the costs sought by the Minister, which were in the sum of $5800. As the Court explained to the applicant at the hearing, the usual rule is that the successful party is entitled to their costs, and that being indigent is not a basis for a court not to award costs: WZATK v Minister for Immigration & Border Protection [2014] FCA 1174 at [23] per Siopis J, from which an application for special leave to appeal to the High Court was dismissed: WZATK v Minister for Immigration & Border Protection & Anor [2015] HCASL 41. The applicant must pay the Minister costs in the sum of $5800 by 30 June 2015.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  29 April 2015