FEDERAL COURT OF AUSTRALIA

AFQ16 v Minister for Home Affairs [2019] FCA 407

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

O’BRYAN J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 23 August 2018, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 6 January 2016. The Tribunal had affirmed a decision of a delegate of the First Respondent, the Minister for Home Affairs, made on 26 September 2014 under s 65 of the Migration Act 1958 (Cth) (Act) refusing to grant the appellants Protection visas.

2    A written outline of submissions was filed and served on behalf of the Minister prior to the hearing of the appeal. No written submissions were filed and served on behalf of the appellants.

3    The appeal was heard on 12 March 2019. The appellants were not represented at the appeal and made submissions to the Court with the assistance of an interpreter.

4    For the reasons that follow, the appeal is dismissed with costs.

Background

5    The appellants are husband and wife and citizens of India. They travelled to Australia so that the second appellant could study. They arrived in Australia on 29 January 2009 on Class TU Subclass 573 (Student) visas, valid until 15 March 2012.

6    On 26 June 2010, the appellants’ son was born in Melbourne and on 9 November 2010 he was granted a Class TU Subclass 573 (Student) visa.

7     On 20 November 2010, the first appellant and his son travelled to India while the second appellant remained in Australia. The first appellant returned to Australia on 6 December 2010 while the appellants’ son remained in India with relatives.

8    On 17 January 2012, the first appellant returned to India for a second time while the second appellant remained in Australia. The first appellant returned to Australia on 24 January 2012.

9    On 15 March 2012, the second appellant applied for a Class VC Subclass 485 (Skilled Graduate) visa which included the first appellant as a dependant. On 9 November 2012, that application was refused. On 29 November 2012, the second appellant applied for a review of that decision. On 16 April 2013, the then Migration Review Tribunal affirmed the delegate’s decision to refuse the Skilled Graduate visa. On 20 May 2013, the appellants sought judicial review of the Tribunal’s decision in the Federal Court of Australia. On 24 July 2013, they were advised that their application was unsuccessful. On 2 September 2013, the appellants submitted a request for Ministerial Intervention. On 20 February 2014, the Minister decided not to intervene.

10    On 19 March 2014, the appellants submitted an application for Protection visas. Their applications were deemed invalid. On 15 May 2014, the appellants lodged further applications for Protection visas under s 36 of the Act. Section 36 (as in force on 15 May 2014) sets out the criteria for the grant of Protection visas. By s 65 of the Act, the Minister must grant a Protection visa if satisfied that the relevant criteria are satisfied, and must refuse a visa if not so satisfied. Ministerial satisfaction as to the fulfilment of the relevant criteria is both a precondition to a decision to grant or refuse a visa and a jurisdictional fact upon which the exercise of power is conditioned: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at 232 [37]-[38] per Gummow and Hayne JJ; 207 ALR 12; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [40] per Gummow ACJ and Kiefel J and [102] per Crennan and Bell JJ; [2010] HCA 16.

11    The appellants’ reasons for claiming protection, as set out in their Protection visa application forms, can be summarised as follows:

(a)    The first appellant claimed that he had come to Australia with his wife, the second appellant, whilst she studied: first in Adelaide and then in Melbourne.

(b)    The first appellant claimed that, in 2009, while they were in Australia, the brother of the first appellant became involved in a dispute with the uncle of his brother’s girlfriend, because the uncle did not approve of the relationship between his brother and his brother’s girlfriend. The first appellant claimed that the dispute escalated and ultimately led to a fight in which the uncle lost his right arm and his brother suffered head injuries. The matter was investigated by the police and the uncle accused the first appellant’s brother of causing the uncle’s injuries. The first appellant’s brother then left India for the UK on a Tourist visa, where he has apparently remained.

(c)    On 21 November 2010, the first appellant returned to India with his son. The first appellant claimed that, while in India, word of his arrival spread and villagers from the uncle’s village came to his village. He claimed that they mistook him for his brother and that he was held for 2 hours while the villagers searched the house for his brother. He claims that the villagers demanded that he tell his brother to return from the UK or they would kill the first appellant for the deeds of his brother.

(d)    The first appellant claimed that he would gain no protection from the police in India and fears that he will be killed by his attackers should he return to India.

12    The second appellant’s Protection visa application was made solely as a member of the family unit of the first appellant.

13    On 30 July 2014, the appellants attended an interview before a delegate of the Minister. They were assisted by an interpreter. On 31 July 2014, the appellants provided additional documentation to the delegate concerning the altercation in India.

14    On 26 September 2014, the delegate refused to grant the appellants Protection visas under s 65 of the Act. The delegate was not satisfied that the first appellant was a person in respect of whom Australia has protection obligations within s 36(2)(a) or (aa) of the Act. The delegate found that the first appellant’s claims of having a well-founded fear of persecution or suffering significant harm on return to India were not credible. The delegate found that the appellants had submitted their Protection visa applications for the purpose of extending their stays in Australia as all other avenues for staying had been exhausted. The refusal to grant a Protection visa to the second appellant followed from the refusal to grant a Protection visa to the first appellant.

Tribunal Proceedings

15    On 27 October 2014, the appellants applied to the then Refugee Review Tribunal for review of the delegate’s decision.

16    On 8 October 2015, the appellants attended a hearing before the Migration and Refugee Division of the Administrative Appeals Tribunal to give evidence and to present arguments. They did so with the assistance of an interpreter.

17    On 6 January 2016, the Tribunal delivered its statement of decision and reasons, affirming the delegate’s decision not to grant Protection visas.

18    The Tribunal was not satisfied as to the first appellant’s credibility and found that his account of events (giving rise to the fear of persecution or suffering significant harm on return to India) had changed significantly over the course of the Protection visa application, the interview with the delegate and the Tribunal hearing respectively: Tribunal Reasons [44].

19    The Tribunal accepted that the first appellant’s brother had been named in court proceedings in India as being in a fight with people from a neighbouring village, during which the uncle of the brother’s girlfriend was seriously injured from a sword wound. However, the Tribunal found the first appellant’s evidence about the incident to be extremely vague and that his knowledge about the incident was minimal: Tribunal Reasons [46] – [48]. The Tribunal observed that, in giving evidence, the first appellant:

(a)    was uncertain about the date on which the incident occurred;

(b)    referred to the uncle by a different name to the original application (the name of the uncle in the original application was consistent with police documentation concerning the altercation);

(c)    stated that he did not know who the people involved in the dispute were; and

(d)    stated that he did not know what the reason for the dispute was: Tribunal Reasons [48].

20    The Tribunal found the first appellant’s evidence regarding the claimed attack on himself at his house in 2010 was vague and shifting, referring to the following matters:

(a)    In his application, the first appellant stated that 15-20 people came to his house and held him while they searched for his brother. In his interview with the delegate, the first appellant stated that his mother hid him when people came to the house looking for him. In the Tribunal hearing, the first appellant gave evidence that 7 or 8 assailants came to the house and beat him with sticks.

(b)    In the Tribunal hearing, the first appellant said that he did not know who the assailants were, only that they had fought with his brother. He also stated that the assailants were on drugs, which had not been previously claimed. Since the claimed attack on himself, the first appellant had not made any effort to identify the persons who were involved; he was not sure if the uncle was involved; and he had not made any enquiry about what the people involved may want now.

(c)    In the Tribunal hearing, the first appellant’s evidence as to the reason he was allegedly beaten was not consistent. Initially he stated that the assailants thought he was his brother and beat him by mistake. Later he stated that the assailants knew who he was but said to him that it didn’t matter which brother it was.

(d)    In his application, the first appellant had identified the uncle’s village as Rahon and that the persons who had held and threatened him were from that village. In the Tribunal hearing, the first appellant stated that he did not know the village from which his assailants had come. Later, he stated it was Malpur. When asked how the village of Malpur related to the village of Rahon, the first appellant stated that he was not sure which village the uncle was from but that he often stayed in Rahon: Tribunal Reasons [49].

21    The Tribunal also found that the first appellant’s responses to various questions asked by the Tribunal raised doubts about his credibility:

(a)    The first appellant stated that he did not report the claimed attack on himself at his house in 2010 to the police because he feared the police would have prevented him from leaving the country: Tribunal Reasons [50].

(b)    The first appellant stated that his father did not report the claimed attack on his son to the police, but spoke with the head of the village council (known as the Sarpanch) who mediated on behalf of the first appellant’s parents. When asked why his parents did not also seek the assistance of the Sarpanch on behalf of himself, the first appellant had no answer but finally said that his parents did not want to get involved: Tribunal Reasons [52].

22    The Tribunal took into account independent country information and found that the judicial system in India would support the first appellant in relation to his brother’s court proceedings and that there was a remote chance that he would be involved in court action brought against his brother in the future: Tribunal Reasons [55] – [56].

23    In assessing the first appellant’s general credibility, the Tribunal also took into account the delay in lodging the applications for protection (while the claimed attack on the first appellant occurred in about November 2010, the application was not lodged until March 2014). While the first appellant claimed that, as time progressed, he became more aware of the gravity of the situation and so applied for the Protection visas, the Tribunal did not accept that there was any significant change in his situation over the relevant period. The Tribunal found that if the fear of harm was genuine, the first appellant would have been expected to make his claims for protection earlier than he had. Those matters caused the Tribunal to have further doubts as to the credibility of the first appellant’s claims to need protection: Tribunal Reasons [57].

24    The Tribunal was not satisfied that the first appellant was a credible or reliable witness and rejected the first appellant’s claims to face harm in India. The Tribunal did not accept that the uncle of the first appellant’s brother’s girlfriend, or persons associated with the uncle, wanted to exact revenge on the first appellant’s brother or the first appellant. The Tribunal did not accept that the first appellant was attacked and injured in 2010 at his family home by people who either mistook him for his brother or wanted to take revenge against his brother. The Tribunal did not accept that those people intended to harm the first appellant in 2010 or intended to do so at the time of the Tribunal decision or in the future: Tribunal Reasons [58].

25    The Tribunal noted the first appellant’s claims that the uncle belonged to a different political party, but the Tribunal did not accept that the first appellant would be harmed for that reason. This was because the Tribunal was not satisfied that the first appellant would be harmed for any reason, and also the first appellant had expressed no political allegiance himself and had made no claims that he would be targeted by anyone for this reason: Tribunal Reasons [59].

26    The Tribunal concluded that the first appellant did not have a well-founded fear of persecution on return to India or that the first appellant would suffer significant harm upon return to India: Tribunal Reasons [60] – [61]. For those reasons, the Tribunal was not satisfied that the first appellant was a person in respect of whom Australia had protection obligations within s 36(2)(a) or (aa) of the Act. It followed that the Tribunal was not satisfied that the second appellant met the criteria in s 36(2)(b) or (2)(c): Tribunal Reasons [62].

Proceedings in the Federal Circuit Court

27    On 4 February 2016, the appellants lodged an application and accompanying affidavit in the Federal Circuit Court, seeking judicial review of the Tribunal’s decision under s 476 of the Act. Subject to various exceptions (which are not presently applicable), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

28    To constitute jurisdictional error, the error must comprise a failure to comply with a statutory precondition which must exist in order for the decision-maker to embark on the decision-making process or a failure to comply with a condition which the statute expressly or impliedly requires to be observed in the decision-making process, and the error must ordinarily be material in the sense that compliance with the condition could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at 6-9 per Kiefel CJ and Gageler and Keane JJ; [2018] HCA 34; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45] per Bell, Gageler and Keane JJ. Such errors can include identifying a wrong issue, asking the wrong question, ignoring relevant material, relying on irrelevant material, failing to observe an applicable requirement of procedural fairness or, in certain circumstances, making an erroneous factual finding: Craig v South Australia (1995) 184 CLR 163 at 179; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [67]; Hossain v Minister for Immigration and Border Protection (2018) ALR 1 at 19; [2018] HCA 34.

29    The grounds of review stated in the application were as follows (without correction):

“1.    There is fear of my life if I go back to India. I have given the information to the DIBP and the RT on two different occasions and the information does warying as I did not have all the details of the incident documented at that time and it is very hard to gather all information of the incident that had happened after six years.

2.    The Appeals Tribunal has just taken a general view of all my claims and given the decision as not to grant a protection visa. The claims in my case will arbittarily deprave me of my life and also of my partner.

3.    There are claims of the harm caused to my family (my wife and my son) who has been living away from both of us in India with his aunt and is growing up alone. The evidence of six years of separation from my son has not been considered as my son had a visa in 2010 and could have entered Australia on a valid Student visa which he had to 15 March 2012.”

30    The application for review was accompanied by an affidavit which repeated the first two grounds of review and exhibited a copy of the Tribunal’s decision.

31    The grounds of review stated in the application were seemingly directed to the factual findings of the Tribunal concerning the appellants’ claims for protection (which led to the Tribunal not being satisfied of the s 36(2) criteria). As noted above, the Tribunal’s factual findings were based principally on its conclusions as to the credibility of the first appellant. Such findings are not immune from judicial review, but to establish jurisdictional error it is ordinarily necessary to show that the findings were legally unreasonable, for example by being based on illogical or irrational findings or inferences of fact: Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J and at 657 per Gummow J; Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 73 ALD 1 at 3 [5] per Gleeson CJ; 77 ALJR 1165; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at 232 [37]-[38] per Gummow and Hayne JJ; 207 ALR 12; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. However, judicial review does not involve mere merits review – it is not enough for the question of fact to be one on which reasonable minds may differ: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [96] and [130] per Crennan and Bell JJ; [2010] HCA 16; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at 122; [2016] FCAFC 174.

32    The primary judge concluded that the appellants had not demonstrated jurisdictional error in the Tribunal’s decision, whether on their stated grounds of review, or otherwise upon consideration of the Tribunal’s reasons.

33    As to ground one, the primary judge concluded that the Tribunal’s adverse credibility findings were open to it, having regard to the inconsistencies in the first appellant’s evidence identified by the Tribunal (at [44] – [45]).

34    As to ground two, the primary judge found that the Tribunal had considered the appellants’ claims in some detail but reached a factual finding adverse to those claims. His Honour concluded that the Tribunal’s findings were open to it on the evidence (at [49]).

35    As to ground three, the primary judge noted, with apparent approval, the Minister’s submission that it was not clear how separation from the appellants’ son, who remains in India, was relevant to the claims to fear harm in India (at [52]).

Notice of Appeal

36    By Notice of Appeal filed on 6 September 2018, the appellants appeal from the judgement of the Federal Circuit Court. The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30.

37    The Notice of Appeal raises the following grounds of appeal (without correction):

“1.    The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.”

38    The grounds of appeal do not identify with any clarity alleged errors in the Tribunal’s decision. As noted earlier, the appellants did not file written submissions prior to the hearing of the appeal and their oral submissions to the Court at the hearing of the appeal did not elaborate on the grounds of appeal in any meaningful way.

39    Nevertheless, it is tolerably clear that the grounds of appeal are directed to the factual findings of the Tribunal concerning the appellants’ claims for protection. In other words, the grounds of appeal repeat the grounds of review raised before the primary judge.

40    The first ground of appeal states that the Tribunal “acted in a manifestly unreasonable way when dealing with the applicant claim”. That ground can best be understood as a contention that the Tribunal’s factual findings were legally unreasonable. The Minister argued that this complaint had not been made before the Federal Circuit Court and that the appellants required leave to advance that ground. In my view, that ground of review was raised before the Federal Circuit Court, albeit that the appellants did not use the expression “legally unreasonable”. Before the Federal Circuit Court, the appellants sought review of the Tribunal’s factual findings concerning the appellants’ claims for protection. In my view, the primary judge considered the grounds of review on that basis. Ultimately, the primary judge decided that the Tribunal’s factual findings did not involve jurisdictional error.

41    In the absence of meaningful written or oral submissions from the appellants, I have carefully reviewed the decision of the Tribunal and the documentary record on which the Tribunal’s decision was based. In my view, the decision of the Tribunal does not display legal unreasonableness or other jurisdictional error.

42    The principles which guide judicial review of findings concerning credibility have been discussed by the Full Federal Court in a number of recent decisions, including CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 507-512; [2016] FCAFC 146; DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 at 649-650 [30]; [2018] FCAFC 2; and AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227 at 239-240; [2018] FCAFC 133 at [41]. The principles included the following:

(a)    Whether or not a credibility finding is affected by jurisdictional error is a case specific enquiry and should not be assessed by reference to fixed categories or formulae.

(b)    Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reason or finding of fact was immaterial, or not critical, to the ultimate conclusion or end result (such as, for example, where it is by one of several findings that independently may have led to the ultimate decision).

(c)    Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.

43    The Tribunal was not satisfied that the first appellant was a credible or reliable witness for a number of reasons: the first appellant’s evidence about the altercation between his brother and the uncle of his brother’s girlfriend was vague; the first appellant’s evidence regarding the claimed attack on himself at his house in 2010 was vague and involved inconsistencies; the first appellant had not reported the claimed attack to the police in India; and the first appellant had delayed in lodging an application for protection with Australia. While some of the bases relied on by the Tribunal were more significant than others, and indeed some may have been insignificant, when considered in totality they provide rational support for the Tribunal’s findings on credibility.

44    In my view, the grounds of appeal do not identify jurisdictional error on the part of the Tribunal, nor any error on the part of the primary judge. The appeal should be dismissed with costs.

Associate:

Dated:    26 March 2019