FEDERAL COURT OF AUSTRALIA

AAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 310

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”

2.    The appeal is dismissed.

3.    The Appellant is to pay the First Respondent’s costs of and incidental to the appeal fixed in the sum of $3,300.

4.    When the transcript of this morning’s hearing is typed up, the recorders are not to use the Appellant’s personal name, but are instead to insert the designation of AAK19.

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

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

Introduction

1    The appellant, now 22 years old, is a national of India and of the Jat Sikh caste. He arrived in Australia on 9 November 2016 on a Student visa. His Student visa was cancelled on 8 June 2018.

2    Ten days later, on 18 June 2018, the appellant applied for a Protection (Subclass 866) visa.

3    On 12 July 2018, a delegate of the Minister refused the grant of a Protection visa to the appellant. On 26 November 2018, the Administrative Appeals Tribunal (the Tribunal) affirmed that refusal. The appellant’s application to the Federal Circuit Court (the FCC) for judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth) (the Act) failed: AAK19 v Minister for Home Affairs [2019] FCCA 2510.

4    The appellant now appeals against that decision.

Factual background

5    The appellant claimed to have known his girlfriend in India, to whom I will refer as Ms S, since 2011. He said that he had developed a relationship with her before coming to Australia which had become intimate. Ms S and her parents are of the Hindu Brahman caste. The appellant describes the girlfriend’s parents as “very strict, religious, orthodox” and with a strong belief in the caste system and, in particular, a strong belief that their daughter should not marry outside their caste.

6    The appellant claimed that, in March 2018, the parents learnt of their daughter’s plan to marry him when they listened in on a private telephone conversation between him and Ms S. They then entered their daughter’s room and found a series of photos of the appellant with Ms S in “intimate poses”.

7    The appellant claimed that, because of his caste, the parents did not approve of the relationship. He claimed that Ms S had vanished after this telephone call, that he was unable to make contact with her, and that, despite visits from friends, her whereabouts remain unknown. He also claimed that he could not locate the girlfriend on social media. The appellant claimed that he wrote a letter to the Police in India on 18 March 2018, expressing his concerns about the welfare of Ms S and seeking protection for himself and her, but that he has had no response. He attributed this to the girlfriend’s parents being influential and well-connected and to the Indian Police being corrupt. He provided a copy of the letter he claimed to have sent to the Police in India.

8    According to the appellant, the girlfriend’s parents have threatened him with dire consequences, including death, if he returns to India. He said that he fears being the subject of an “honour killing” if he returns, noting that a friend of his was a victim of such a killing under similar circumstances. He also asserts that his family has received threats, causing them to advise him not to return to India. On this basis, the appellant claimed to have a well-founded fear of persecution if he returns to India and, in the alternative, an entitlement to complementary protection.

The Tribunal’s decision

9    As I have already noted, on 26 November 2018, the Tribunal affirmed the delegate’s refusal of a Protection visa.

10    The Tribunal member did accept that the appellant was born in Patiala, Punjab, India, that he followed the Sikh religion, and that he had travelled to Australia in November 2016 to study. The member also accepted that the appellant knows a person in India with the name Ms S.

11    The Tribunal member had several concerns about the appellant’s evidence, finding that he was not a credible witness, and that his evidence was “lacking in detail, vague and inconsistent with his written claims”. The member’s concerns about the appellant’s evidence included the following:

(a)    the appellant’s accounts in his written and oral evidence as to the time when he had first received threats from the girlfriend’s family were inconsistent;

(b)    there were a number of unusual features in the appellant’s account of the letter which he claimed he had sent to the Police in India. These included that the appellant had written the letter to the Police on 18 March 2018, telling them that his girlfriend had vanished, even though this was only two days after his claimed most recent conversation with her; that the appellant had only a limited recollection about sending the letter and could not produce evidence that it had actually been sent; that the email address to which he said initially that he had sent the letter did not appear to be an official Police address; and that the letter was written in English;

(c)    the appellant was unable to provide any evidence either from Ms S, or of communications between him and Ms S which could demonstrate the content of their conversations or the nature of their relationship. While he did provide some evidence of the call history, the Tribunal member regarded this as being of limited assistance, as it did not contain any record of what had been said between them; and

(d)    there was a significant delay between the appellant’s arrival in Australia in November 2016 and his making the application for the Protection visa in June 2018, with that occurring only after the cancellation of the Student visa and after his detention pursuant to s 189 of the Act. The Tribunal member considered this weighed against the genuineness of the appellant’s claim, saying that if the appellant did have a genuine fear of persecution, an application for a Protection visa would have been made very soon after his arrival in Australia.

12    These matters led the Tribunal member to form an adverse view of the appellant’s credibility and the credibility of his claims. The Tribunal member did not accept that the appellant was in a relationship with Ms S, that they had plans to marry, or that the appellant or his family were threatened by Ms S’s family on the basis of disapproval of their daughter marrying someone from a different caste or religion.

13    The Tribunal member then concluded, on the basis of those findings, that the appellant did not meet the refugee criteria or come within the complementary protection provisions contained in the Act.

The application to the FCC

14    The grounds on which the appellant sought judicial review in the FCC were as follows (quoted verbatim):

1.    AAT just took my case like a normal case, they did not take our relationship seriously, but its all about my further life.

2.    They did not understand the human rights and they did not understand my condition.

3.    Tribunal said the applicant will not face any harm if I return to India because they did not feel sorrow of my murder and they did not realise the fear of which I tackle by [Ms S’s] parents.

4.    AAT think that I will not face any harm in India but may they don’t eastimate that due to the high reputation of [Ms S’s] parents in politics, Police don’t take any action against them, they can do whatever they want, if I shall be killed by the [Ms S’s] parents and reltive, police will not take any action against them, they will release before convited of murder charge, because they are rich they can give huge bribery to Police department, they will dismiss case as soon as possible.

5.    Tribunal said, I did not apply protection visa beginning of arrive in Australia, because that time I was still dreaming to marry with [Ms S], when I shall complete my study, I marry with [Ms S], but [Ms S’s] parent started threating to my parents to kill me.

6.    AAT did not feel their selves at my place, can they return to India, If they were tackling same circumstance like I am tackleing.

15    In an ex tempore judgment, the FCC Judge dismissed the application for judicial review, and made an order for costs against the appellant, saying:

[10]    The applicant’s grounds of review are not conventional grounds of review for jurisdictional error and on their face simply take issue with the credibility findings of the Tribunal …

16    The FCC Judge went on to say that the grounds did not purport to point to anything which might be described as jurisdictional error. His Honour continued, at [10]:

… That in itself is a ground that would merit the dismissal of the application but I have, as I said, read the material, [and] discussed it with the applicant. The decision of the Tribunal resting primarily on an adverse credibility assessment of the applicant was a conclusion that was open to it and justified by the material.

17    The Judge also referred to a number of matters in the Tribunal’s findings which, although not characterised by him in this way, indicated that its conclusions could not be regarded as irrational or unreasonable, let alone unreasonable in the legal sense.

Appeal to this Court

18    The applicant represented himself on the appeal, as he did in the FCC.

19    The appellant’s Notice of Appeal in this Court contains three grounds of appeal which, stated verbatim, are as follows:

1.    Federal Circuit Court took a wrong decision. It all about my life, they do not understand my circumstance.

2.    Federal Circuit did not feel theirselfs at my place, Can they return to India, If they tackle same circumstance.

3.    They said, I did not apply protection visa beginning of arrive of Australia, because that time I was dreaming to marry with [Ms S] After completing my study, but Parents started [threatening] to me and my Parents.

20    None of these grounds identified jurisdictional error. Nor did the appellant provide an outline of submissions in advance of the appeal which might have addressed that shortcoming.

21    I endeavoured to explain to the appellant that he would need to demonstrate jurisdictional error by the Tribunal if his appeal was to succeed. Save possibly for one matter, the appellant’s oral submissions did not identify any jurisdictional error. Instead, the appellant made submissions of the kind which would have been appropriate to make in the Tribunal in support of the merit of his application for a Protection visa.

22    Several of the matters advanced by the appellant were new matters in the sense that they had not been advanced at all before the Tribunal or for that matter, it seems, before the FCC or were in the nature of elaborations of claims previously made but with additional detail. Some of the matters to which the appellant referred were matters which had been dealt with directly by the Tribunal. They had been rejected by the Tribunal, and it cannot be said that they were overlooked by the Tribunal.

23    One of the appellant’s complaints was that the Tribunal member had not looked at his circumstances properly. I am willing to regard that as a submission that the Tribunal committed jurisdictional error by failing to have regard to the central elements of his claims.

24    However, contrary to the appellant’s submission, I am satisfied that the Tribunal did address the central elements of his claim, namely, his claimed fear of harm resulting from retribution or acts of deterrence by his girlfriend’s parents. The Tribunal did not misunderstand that that was the nature of the claim that was being made. It dealt with it expressly and rejected the appellant’s claims concerning it.

25    Many of the appellant’s submissions were, in substance, complaints about the Tribunal’s evaluation of the merits of his claim. However, as I explained to the appellant, on an appeal of the present kind, this Court will intervene only if an appellant demonstrates error by the FCC Judge in failing to find that the decision of the Tribunal was 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 the application.

26    There are circumstances in which this Court may find that there has been jurisdictional error even though the Tribunal has dismissed a claim based on its assessment of the credibility of an applicant and of the applicant’s claims: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496.

27    However, in this case, on my assessment, it was open to the Tribunal on the material before it to make the assessment of the appellant’s credibility which it did and, on the basis of that assessment, to determine that he does not have a well-founded fear of persecution: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485. In particular, the several inconsistencies identified by the Tribunal member made it open to it to conclude that the appellant’s claim was not genuine.

28    I also note that it is not uncommon for a delay in the making of an application for refugee status to be regarded as a matter bearing on the genuineness of a claimed fear of persecution: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76, (2018) 261 FCR 515, at [53]; AXR16 v Minister for Immigration and Border Protection [2019] FCA 42, at [99].

29    In summary, I consider that the FCC Judge was correct to conclude that the appellant had not shown that the Tribunal’s decision was affected by jurisdictional error. Further, the Tribunal’s decision cannot be regarded as legally unreasonable or as lacking an intelligible or rational basis.

Conclusion

30    For these reasons, the appeal is dismissed.

Associate:

Dated:    11 March 2020