FEDERAL COURT OF AUSTRALIA

DHB16 v Minister for Immigration and Border Protection [2018] FCA 673

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant pay the costs of the First Respondent of and incidental to the appeal, fixed in the sum of $4,150.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1    At the conclusion of the hearing of this appeal from a decision of the Federal Circuit Court (the FCC) dismissing an application for judicial review under s 476 of the Migration Act 1958 (Cth), I announced my decision dismissing the appeal, and said that I would publish reasons later. The following are my reasons.

2    The Appellant is a national of India, now aged 33, who arrived in Australia on 8 February 2009 on a Student (TU-572) visa. He held Student visas until 12 November 2011. On 1 November 2011, the Appellant applied for a third Student visa but this was refused by a Delegate of the Minister on 17 May 2012. The Appellant’s application to the former Migration Review Tribunal (the MRT) for review of that refusal was unsuccessful, as was a later application for judicial review in the Federal Magistrates Court.

3    On 13 August 2013, the Appellant’s migration agent made a request on his behalf for Ministerial intervention, pursuant to s 351 of the Migration Act. The Appellant was notified on 19 May 2014 that the Minister declined to accede to that request.

4    The Appellant then made an application for a Protection visa, on 24 June 2014. His first application was invalid because he had not provided the personal identifiers required by s 46(2A) of the Migration Act. He made a second application for a Protection visa on 16 September 2014.

5    On 12 October 2015, a Delegate of the Minister refused the application for the Protection visa. That refusal was affirmed by the Administrative Appeals Tribunal (the Tribunal) on review on 10 October 2016. The Appellant then sought judicial review of the Tribunal decision in the FCC, but that application was dismissed: DHB16 v Minister for Immigration [2017] FCCA 2988. It is from that judgment that the Appellant brings the present appeal.

Proceedings in the Tribunal and the FCC

6    In the Tribunal, the Appellant claimed to have a well-founded fear of persecution for a Convention reason by reason of his adherence to a sect known as Dera Sacha Sauda (DSS). He claimed that he had been influential in inducing people to join the sect and that, because of that, he feared that extremist Sikhs would kill him.

7    The Tribunal member examined his claims in some detail and considered a range of country information concerning the DSS. She accepted that the Appellant had become involved in the DSS when he was aged about 18 or 19 and that that involvement had continued during his studies at university. The Tribunal member noted that the Appellant had not claimed that he had ever been personally harmed or personally threatened by extremist Sikhs and considered that there was no evidence that he was or would be targeted for violence by such persons.

8    The Tribunal member formed an adverse view of the Appellant’s credibility. This was because of aspects of the Appellant’s claims which the member did not regard as convincing and because the Appellant had not applied for a Protection visa for over five years after coming to Australia and then only after he had exhausted all other attempts to stay here. The member noted that the Appellant had had numerous opportunities over the five year period, by reason of his contacts with the Department, to make an application for a Protection visa, including at times when he had been represented by a migration agent.

9    The Appellant was without legal representation in the FCC, as he was in this Court. His application for judicial review in the FCC contained a single ground, as follows:

Tribunal Member made wrong finding in the case. In paragraph 39, I had clearly said and acknowledged by the member that I was threatened in India. In paragraph 79 member stated “The applicant gave a sworn evidence and the tribunal accepts that neither the applicant nor his family have been threatened due to the applicants’ DSS involvement”. Tribunal contradicts with its own statement. Member also failed to put weight on the fact that We were attacked in the book stall. It was my good luck that I was inside and got saved. Tribunal member asked wrong questions like what was the “name of group that attacked book stall and kind of injuries victims received”.

The group of attackers don’t have a name and people received different kinds of injuries and there was chaos everywhere. Tribunal gave more importance on wrong questions and made jurisdictional error in the decision.

10    The FCC Judge found, first, that there was no inconsistency between the contents of [39] and [79] of the Tribunal’s reasons. That was because, in [39], the Tribunal had been reciting a passage from the Delegate’s decision, and not making her own finding.

11    Secondly, the FCC Judge rejected the complaint that the Tribunal had not accorded sufficient weight to the incident described as “the book stall incident”. As the FCC Judge noted, the Tribunal member did not accept that the incident had occurred as alleged by the Appellant. Further and in any event, the weight to be accorded to a particular piece of evidence was a matter for the Tribunal: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5].

12    Thirdly, the FCC Judge considered that there was no substance in the Appellant’s complaint that the Tribunal had asked itself the wrong questions with respect to the “book stall incident”. He concluded that the Tribunal had assessed the Appellant’s claim appropriately in accordance with the requirements of the Migration Act. The Judge considered that the Appellant was, in reality, seeking a merits review of the Tribunal decision, and concluded, appropriately, that that was not the function of the FCC on an application pursuant to s 476 of the Migration Act. In this respect, the Tribunal member cited the well-known passage in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]:

In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.

Appeal to this Court

13    The Appellant’s notice of appeal to this Court replicated exactly the grounds in the notice of appeal brought by the Appellant in other proceedings, which are the subject of this Court’s judgment in CQH16 v Minister for Immigration [2018] FCA 672. Those grounds have no relationship at all with the circumstances of the Appellant’s case.

14    However, in a supporting affidavit, the Appellant asserted that there was jurisdictional error in the Tribunal’s judgment and then, subject to one qualification, set out the same grounds as he had alleged in his application to the FCC. The qualification is that, at the conclusion of those grounds, the Appellant added the following paragraph:

I appealed in the Federal Circuit Court but even they refused my appeal and did not find jurisdictional error. This is wrong. Tribunal officer gave importance to wrong question and did not put enough weight on evidence given by me.

15    I treated the contents of the Appellant’s affidavit as stating the grounds of his appeal to this Court.

16    The Appellant submitted that the FCC Judge had erred by not making enquiries into the circumstances on which he based his claim for protection; that if he had felt safe in India, he would at some stage in the period of nine years since leaving India have returned to visit his family; that he felt some shame and embarrassment in having to make a claim for a protection visa; that the FCC Judge had not taken into account all the details of his case; and referred to his good character.

17    As I explained to the Appellant, on an appeal of the present kind, this Court will intervene only if an appellant demonstrates error, that is to say, error by the FCC Judge in finding that the decision of the Tribunal is not affected by jurisdictional error. Other than in respects which are not presently material, this Court is not concerned with the correctness or otherwise of the Tribunal’s evaluation of the merits of his application.

18    I have reviewed the reasons of the Delegate, the Tribunal and of the FCC Judge. Like the FCC Judge, I am unable to discern any jurisdictional error by the Tribunal. No error is apparent in the FCC Judge’s reasons.

19    It was open to the Tribunal member to make assessments of the reliability and credibility of the Appellant’s claims and, further, to determine the merit of his claim to have a well-founded fear of persecution on the basis of that assessment: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [33]. It is accepted that in the assessment of the reliability and credibility of an applicant’s claim, delay by an applicant in making the application for refugee status may be a matter bearing upon the genuineness and depth of the claimed fear of persecution: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at [11]. It is unclear whether the Appellant referred in the Tribunal to the shame and embarrassment he felt in making a claim for a protection visa and, if so, whether he did so in partial explanation for the lapse of time before he made the application. In any event, even if he did so, this was a matter to be assessed in the Tribunal and was not a matter within the scope of his application to the FCC.

20    There is no basis upon which the FCC Judge could have concluded that the Tribunal had asked “wrong questions”. The Tribunal member identified the statutory criteria and addressed them appropriately.

21    The FCC Judge was correct, for the reasons he gave, in finding that there was no inconsistency between [39] and [79] of the Tribunal’s reasons. Further, in [79], the Tribunal member said that she accepted the Appellant’s own sworn evidence that neither he nor his family had been threatened due to his involvement with DSS. As indicated, it was for the Tribunal member to evaluate the evidence and to attach such weight as she considered appropriate to his sworn evidence.

22    It was also for the Tribunal member to evaluate the evidence concerning the “book stall incident”. The only evidence concerning this incident came from the Appellant himself. It was to the effect that a group of extremist Sikhs had “pushed people around” and had tried to destroy a book stall which the Appellant and others were staffing. Some DSS people, but not the Appellant, were beaten. The Tribunal member did not accept the Appellant’s evidence, noting that his report of the incident to her appeared to be the first time that he had mentioned it, and that his account was vague and lacking in detail. I consider that the FCC Judge was correct to conclude that this evaluation of that evidence does not reveal jurisdictional error.

23    The Appellant has not established a basis on which this Court should allow the appeal. These are my reasons for dismissing the appeal on 10 May 2018.

Associate:

Dated:    14 May 2018