FEDERAL COURT OF AUSTRALIA

DDY17 v Minister For Home Affairs [2019] FCA 165

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

(Revised from the Transcript)

LEE J:

1    At [24] of the primary judge’s reasons, his Honour described the central question before the Court as being “whether the [second respondent’s (Tribunal)] finding in relation to the applicant’s credibility, and the findings that informed that ultimate finding, were reasonably open to the Tribunal on the material that was before it”. His Honour answered that question by noting that on the evidence before the Court and upon a review of the Tribunal’s reasons, its findings were reasonably open and accordingly, the primary judge dismissed the application that had been made by the appellant pursuant to s 476 of the Migration Act 1958 (Cth) (Act).

2    In a notice of appeal filed in September last year, the appellant appeals the orders made by the primary judge. The notice of appeal was filed within the required period and the only ground of appeal was expressed in the following way:

The Court below made a jurisdictional error in dismissing the appeal from the [Tribunal] who (sic) failed to uphold the notion of procedural fairness in the process of making its decision in relation to his application for a protection visa. This decision evidently constitutes a breach of natural justice.

3    “Particulars” were then provided beneath the ground of appeal, which advance the contention that the Tribunal lacked the evidence to make the findings it made and ought to have inferred that there was a real chance that the appellant may be persecuted on political grounds if he returns to his home country, the Republic of Indonesia. It was similarly contended that the Tribunal erred in finding that the appellant did not have a well-founded fear of persecution.

4    An outline of submissions was filed on 23 January 2019 which put the appellant’s point in a pithy fashion. It is convenient to set out paragraphs [6]-[12] which appear at page 4 of that document, under the heading “Submission”:

6.    The Appellant claimed before the Tribunal that he had a well-founded fear of persecution because the Indonesian Police and a drug dealing gangster was going after him. The Tribunal however, found the Appellant not to be a credible witness and much of the evidence he has advanced in support of his protection claims were not accepted. In relation to the Appellant's claims, the Tribunal concluded that the Appellant will not be harmed if he returns to his Country of origin.

7.    [The primary judge] of the Federal Circuit Court concluded in paragraph 33 of the Federal Circuit Court Decision that the Tribunal's decision is not affected by jurisdictional error.

8.    There were a number of evidences given by the Appellant in his oral evidence before the Tribunal which were inconsistent because his recollection of events was diminishing due to the passage of time.

9.    The Appellant contends that the Federal Circuit Court erred in making the conclusion that the Tribunal's decision was not affected by jurisdictional error.

10.    The Appellant contends that instead of assessing the risk of the happening of the persecution that the Appellant fears, the Tribunal makes a finding that there was no possibility at all that the applicant will suffer harm. The Appellant contends that there is insufficient evidence for the Tribunal to make such a finding and hence the decision was affected by jurisdictional error.

11.    The Appellant still genuinely fears returning to Indonesia.

12.    The Appellant only wish to respectfully request the Federal Court of Australia to re-canvass what was held by the Court below to ensure that the Court below has made a lawful decision in his case.

5    Given the nature of the claim made by the appellant, I have not only reviewed the judgment of the primary judge, but also the reasons of the Tribunal.

6    In November 2014, the appellant set out a number of claims in his “Application for a Protection (Class XA) visa” form. The appellant claimed to fear harm in Indonesia on account of his political views and opposition to government and police corruption. He made the following assertions:

(a)    he had been active politically since he attended university, and conducted research into corruption;

(b)    during the course of his research, he found the Indonesian police accepted money from local gangs to protect criminals involved in illicit drugs;

(c)    he was aware of the names of the police who were behaving corruptly, and reported them;

(d)    by reason of his letter, he was arrested, placed in jail, tortured and released in October 2014; and

(e)    he was threatened and harassed and so eventually left to go to Australia.

7    The appellant did not attend his scheduled interview in May 2015. A delegate of the first respondent (Minister) refused the appellant’s visa application in July 2015. Relying on the absence of any further detail or evidence being provided by the appellant, the delegate was not satisfied that there was a real chance of persecution. The delegate also found that the claimed harm was not significant within the meaning of sub-s 36(2A) of the Act and therefore the applicant was not a person in respect of whom Australia has protection obligations as outlined in sub-s 36(2)(aa) of the Act.

8    This decision was reviewed by the Tribunal. The appellant attended a hearing in April 2017 and later that month was invited to respond or comment on certain particularised information, to which the appellant responded the following month. In June 2017, the Tribunal made its decision which, as is no doubt already obvious, was to affirm the decision under review.

9    The Tribunal decision was based on comprehensive adverse credibility findings which were, as the primary judge noted, informed by a number of more granular findings. In particular, the Tribunal found:

(a)    in oral evidence at the hearing, the appellant did not specify that he feared harm from the local police until prompted and the Tribunal considered that he would have specified he feared harm from the local police without prompting if the fear had been genuine (AB 134: [13]);

(b)    it was not plausible that the appellant’s reason for moving between different places in 2014 was to avoid phone calls and Facebook Messenger calls (AB 134: [14]);

(c)    the appellant’s testimony about when he began having problems with the “Jack Gang”, and what those problems were, was confused and unforthcoming (AB 135: [15]);

(d)    if the appellant truly felt unsafe and that people were following him, the appellant would have mentioned this in his protection visa application (AB 135: [16]);

(e)    the appellant’s testimony about who was selling drugs at a resort was confused and contradictory (AB 135: [17]); and

(f)    given the contradictory nature of his evidence, the Tribunal formed the impression that the appellant was making up evidence as he testified (AB 136-137: [18]–[21]).

10    The Tribunal then turned to the response it had received following its invitation issued in April 2017. In this regard the Tribunal found that the appellant’s disclosure of his whereabouts on Facebook and to his girlfriend was inconsistent with his evidence to the Tribunal that he was hiding and did not tell anyone where he was going (at AB 137-138: [22]).

11    It was this process of reasoning which led the Tribunal to the ultimate finding that the appellant was not credible and that his protection claims had been invented. In this regard, the Tribunal said at [23]:

The above matters taken into account collectively, led me to conclude that the [appellant] was not credible and hence that his protection claims have been invented. Thus, while I accept that the [appellant] is a national of Indonesia based on his Indonesian passport, I reject the protection claims he has made in his protection visa application and at the hearing in their entirety. Specifically and to avoid doubt, I do not accept that the applicant was a political activist since university and opposed to government corruption, or that he conducted research into corruption or drug programs whilst at university …

12    The Tribunal then went on at [24]-[25] to say as follows:

Having rejected the claims for protection made by the [appellant], I find that he does not have a well-founded fear of persecution within the meaning in s.5J(1) and hence he is not a refugee as defined in s.5H. I am thus not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

As I have concluded that the [appellant] does not meet the refugee criterion … I must consider the alternative criterion in s.36(2)(aa). However, having found the [appellant] was not credible and rejected all his claims for protection, I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm. I am therefore not satisfied that the [appellant] is a person in respect of whom Australia has protection obligations …

13    As I noted above, the primary judge held that the Tribunal’s rejection of the appellant’s claims as untruthful was open to it. Of course, this rejection was, for the most part, a result of the appellant’s own evidence to the Tribunal. The primary judge also held (at [31]) that the Tribunal’s reasons were “intelligible and coherent and in their terms, were adequate such as to be the apparent basis for the conclusion” that it reached and rejected any notion that the findings were based on a want of evidence or were infected by legal irrationality.

14    There is no need for the purposes of this appeal, for me to canvas the well-known authorities in this area. The appellant has not identified any recognised ground which might have caused the Tribunal’s credibility findings to result in jurisdictional error. It is trite the Tribunal did not require evidence to rebut the appellant’s claims in order to reject them. Below, the appellant submitted to the primary judge that the Tribunal should have accepted “a little bit” of his claims (see [19]). In effect, this was the real substance of the argument put before me, that there was sufficient material to undermine a finding that there was no possibility at all that the appellant will suffer harm or, put another way, there was insufficient evidence for the Tribunal to make the finding it made.

15    It is clear from the analysis conducted by the primary judge that such a contention lacks merit. Having determined that the primary judge did not fall into error, the appeal must be dismissed with costs.

Associate:

Dated:    19 February 2019