Aao20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1002
•12 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AAO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1002
File number(s): PEG 1 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 12 May 2021 Catchwords: MIGRATION – Judicial Review – decision of Administrative Appeals Tribunal – citizen of Cameroon – Protection (Class XA) (Subclass XA-866) visa – whether denial of procedural fairness – whether error of law – whether country information properly considered – whether jurisdictional error Legislation: Migration Act 1958 (Cth) Pt 7 Div 4, ss 5H, 5J, 5K, 5L, 36, 420, 424, 424AA, 425, 425A, 474, 476
Migration Regulations 1994 (Cth) Sch 2
Cases cited: BEV15 v Minister for Immigration and Border Protection [2016] FCA 507
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140; (2019) 375 ALR 47
EZZ17 v Minister for Immigration & Anor [2018] FCCA 2996
Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration & Citizenship v SZGUR and Anor [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Minister for Immigration & Border Protection v Pandey and Ors [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZAIB v Minister for Immigration and Border Protection and Anor [2015] FCA 1392; (2015) 238 FCR 158
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff M61/2010E and Anor v Commonwealth of Australia and Ors [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 75 ALD 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
VHAJv Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186; (2003) 131 FCR 80; (2003) 75 ALD 609
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531; (2018) 162 ALD 13
Number of paragraphs: 41 Date of last submission: 13 April 2021 Date of hearing: 13 April 2021 Place: Perth Applicant: In person (with the assistance of an interpreter) Counsel for the First Respondent: Ms G Ellis Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 1 of 2020 BETWEEN: AAO20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
12 MAY 2021
THE COURT ORDERS THAT:
1.The application filed 3 January 2020 be dismissed.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 3 January 2020 the applicant filed an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively”) made on 12 December 2019. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration, Citizenship and Multicultural Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to refuse to grant the applicant a Protection (Class XA) (Subclass XA-866) visa (“Protection Visa”).
The Judicial Review Application contains two grounds of review and an additional third ground of review from propositions written in the “Orders Sought” section of the Judicial Review Application, and which are set out below at [9] (ground 1), [14] (ground 2), at [19] (ground 3). The Court has also considered certain matters raised by the applicant in oral submissions at hearing: see [31]-[39] below.
JUDICIAL REVIEW APPLICATION
Background
The relevant background to the Judicial Review Application is as follows:
(a)the applicant was born in Cameroon. He belongs to the Bamileke ethnic group, is of the Catholic faith and a Francophone. His partner, children and a sister live in Cameroon. He has a brother living in Perth and another brother living in Gabon: Court Book (“CB”) 108 at [10]-[13];
(b)the applicant’s brother living in Perth was granted a protection visa on review by the then Refugee Review Tribunal (“RRT”): CB 104 fn 10;
(c)the applicant’s claims for protection arise from his alleged involvement with an opposition political party in Cameroon – the Social Democratic Front (“SDF”). He says he attended an SDF initiated anti-government protest in 2008 (“2008 Protest”) where he says he was assaulted. He fled Cameroon after the 2008 Protest, initially living in Gabon until travelling to Australia: CB 59-72;
(d)the applicant’s relevant migration history is that:
(i)in October 2013, before arriving in Australia, he applied offshore for a Global Special Humanitarian Visa (XB202) which was refused in January 2015;
(ii)he arrived in Australia on 24 October 2016 on a Temporary Work (GA-400) Invited Participant visa on the basis that he would be competing in the World Masters Athletics Championships in Perth; and
(iii)he applied for the Protection Visa on 21 November 2016: CB 59-72;
(e)on 25 July 2018 the applicant was invited by the Minister to attend an interview on 16 August 2018 to discuss his claims: CB 53-54;
(f)the Delegate’s Decision was made on 16 November 2018. The Delegate found the applicant’s claims to fear harm for the reasons he had provided were not credible. Importantly, the Delegate:
(i)did not accept that the applicant was a member or former member of SDF;
(ii)did not accept that the applicant attended or was injured in the 2008 Protest;
(iii)did not accept that the applicant had provided genuine documents to support his SDF affiliation and persecution. The documents referred to were an SDF membership card, correspondence titled “Attestation of Activist” and a police summons from 2008; and
(iv)did not accept that the applicant holds fears for his safety because of his political opinion: CB 55-72;
(g)on 26 November 2018 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 73-79;
(h)on 26 September 2019 the Tribunal invited the applicant to attend a hearing on 14 November 2019: CB 87-89;
(i)on 6 November 2019 the applicant sent materials to the Tribunal relating to the 2008 Protest and danger in Cameroon generally: CB 96-100;
(j)the applicant attended the hearing before the Tribunal on 14 November 2019 (“Tribunal Hearing”): CB 101-103; and
(k)the Tribunal Decision was handed down on 12 December 2019: CB 104-121.
By consent of the parties, a Registrar of the Court made orders on 29 January 2020 outlining the timeline for filing materials.
The applicant did not file any materials.
The Minister filed a Court Book (marked at hearing as Exhibit 1), an affidavit of Thomas Morgan Lettenmaier affirmed 16 March 2020 (“Lettenmaier Affidavit”), an affidavit of Ashley David Burgess affirmed 18 January 2021 (“Burgess Affidavit”) (both affidavits were read at hearing), and written submissions filed 19 January 2021 (“Minister’s Submissions”). The Lettenmaier Affidavit annexes a copy of a document “described as correspondence dated 30 December 2010 from the applicant's brother's lawyer in support of the brother's review application before the RRT” (“Applicant’s Brother’s Lawyer’s 2010 Letter”). The Burgess Affidavit annexes a copy of a PAX card completed by the applicant on his flight to Australia in October 2016 which indicates that the reason for his entry is “Sports”.
Jurisdictional error required
The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An error may constitute a jurisdictional error where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”), as may unreasonableness: as to which see the summary in Minister for Immigration and Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
Ground 1 – procedural fairness
Ground 1 of the Judicial Review Application is as follows:
1. The tribunal denied me procedure fairness
Applicant’s submissions
The applicant made no submissions addressing any aspect of procedural fairness.
Minister’s Submissions
The Minister’s Submissions on ground 1 were as follows:
(a)the Tribunal complied with its procedural fairness obligations;
(b)the applicant was invited to attend at the Tribunal Hearing and was on notice of the issues arising in the review from the Delegate’s Decision;
(c)the Tribunal questioned the applicant at the Tribunal Hearing in relation to the determinative issue on review, namely whether he had a well-founded fear of persecution;
(d)the Tribunal put information it had before it to the applicant for comment at the Tribunal Hearing, and specifically, put to the applicant that he had previously denied being politically active, and the applicant did not need further time to provide comment;
(e)the Delegate had found that the SDF Membership card, attestation of activism and police summons were not genuine documents, and the applicant did not provide any further evidence of his alleged membership of the SDF to the Tribunal; and
(f)to the extent the applicant is claiming there were interpretation issues in the RRT interview, the applicant’s evidence in the RRT interview as set out in the applicant’s Brother’s lawyer’s 2010 Letter was that he was not politically active or at risk. There is no reason to depart from this.
Consideration – ground 1
The procedural fairness requirements for a Tribunal hearing are predominantly set out in Division 4 of Part 7 of the Migration Act. The Court is satisfied that the Tribunal did not deny the applicant procedural fairness in the review for the following reasons:
(a)the Tribunal invited the applicant to attend the Tribunal Hearing: CB 87-89. The notice of invitation accorded with s 425A of the Migration Act as it was sent to the email address the applicant provided to the Tribunal in his application for review– a method specified by the Migration Act, s 441A(5)(b): CB 87-89;
(b)the applicant attended the Tribunal Hearing which lasted over two hours: CB 101-103. A French interpreter was provided at the Tribunal Hearing at the request of the applicant, and no issues have been raised concerning the standard of the interpreter or the issue of a language barrier preventing the applicant from engaging with the Tribunal: CB 94-95 and 101-103;
(c)the Tribunal found that there were significant inconsistencies in the applicant’s claims and found the applicant not to be a credible witness: CB 113 at [47]. As the Delegate found the applicant’s claims not to be credible, including a finding that the applicant provided false documents, the applicant was taken to have been on notice of these issues since the date of the Delegate’s Decision: SZBEL. The Tribunal also extensively questioned the applicant at the Tribunal Hearing, which included, among other things, the Tribunal putting to the applicant inconsistencies in his narrative identified in the Delegate’s Decision, and questioning the applicant on the documents found to be false by the Delegate, his movement history, his brother (and his brother’s protection visa application) and certain country information: CB 109-112 at [19]-[40]. In the circumstances it appears that the Tribunal put the applicant on notice of the live issues in his review and gave him a meaningful opportunity to respond to them;
(d)pursuant to s 424AA of the Migration Act the Tribunal put to the applicant evidence given (to the then RRT) in support of the applicant’s brother’s protection visa application: CB 110 at [29]-[30], and, as the applicant stated that he did not need further time to respond and did provide a response, the Tribunal discharged any procedural fairness requirements attaching to that evidence. Further, the Tribunal considered the applicant’s explanation that the information referred to in the Applicant’s Brother’s Lawyer’s 2010 Letter in support of his brother’s protection visa application was a consequence of an interpreting error or misunderstanding. The Tribunal gave the explanation little weight noting that the applicant’s evidence to the RRT summarised in the applicant’s Brother’s Lawyer 2010 Letter “was not only detailed in the RRT decision but it was also summarised by the migration agent representing his brother and there was no reference to any misunderstanding or interpreting error”: CB 113 at [51];
(e)to the extent that the applicant is suggesting that the Tribunal denied him procedural fairness by relying on country information without giving him an opportunity to respond to that country information, s 424A(3)(a) of the Migration Act allows the Tribunal to consider certain information without requiring the applicant’s response. There is no need to consider whether the requirements of s 425(1) of the Migration Act apply here as the issues on review were plainly known and the country information, being information about a class of persons and not the specifically the applicant, falls within the scope of s 424A(3)(a) of the Migration Act: VHAJv Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186; (2003) 131 FCR 80; (2003) 75 ALD 609 at [50] per Kenny J; BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 at [57]-[59] per Bromwich J; Plaintiff M61/2010E and Anor v Commonwealth of Australia and Ors [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244 at [91] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ;
It follows from the foregoing that ground 1 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 2 – error of law
Ground 2 of the Judicial Review Application is as follows:
2. The tribunal committed an error of law.
Applicant’s submissions
The applicant did not direct the Court to any specific error of law in the Tribunal Decision.
Minister’s Submissions
The Minister submitted that ground 2 is no more than a bland assertion of error and cannot succeed.
Consideration – ground 2
Having remained alert to the possibility of error in the Tribunal Decision: MZAIB v Minister for Immigration and Border Protection and Anor [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J, the Court does not consider that any jurisdictional error arises in the Tribunal Decision in relation to ground 2, given:
(a)the Tribunal complied with procedural fairness requirements, as discussed at [12]-[13] above;
(b)that in identifying the correct question, the Tribunal noted and to a reasonable extent summarised the applicable law, including ss 5H, 5J, 5K, 5L and 36(2) of the Migration Act, parts of Sch 2 to the Migration Regulations 1994 (Cth) and Ministerial Direction No. 84: Consideration of Protection Visa Applications (24 June 2019): CB 107-108 at [3]-[8];
(c)the Tribunal understood the basis of the Protection Visa claims, being a claim that the Applicant was at risk of harm in Cameroon due to his involvement with the SDF and attendance at the 2008 Protest: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”);
(d)the Tribunal took into account various sources of country information, extensively questioned the applicant and explained in sufficient depth the corresponding findings, demonstrating active engagement in the review and genuine consideration of the relevant issues, and considered the entirety of the applicant’s claims: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [45] per Griffiths, White and Bromwich JJ; and
(e)the Tribunal did not demonstrate any bias of any kind: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140; (2019) 375 ALR 47. Rather, the Tribunal appears to have acted in the interests of the applicant by considering a claim not raised by the applicant before the Tribunal Hearing: CB 111-112 at [37]-[40].
Ground 2 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 3 – country information
The statements written in the “Orders Sought” section of the Judicial Review Application which the Court considers constitutes a third ground of review are as follows:
Proper consideration of country information
I will provide further particulars
Tribunal Decision
The Tribunal Decision makes reference to the following country information:
(a)the United States Department of State Cameroon 2018 Human Rights Report, which the Tribunal relied on for information about the political structure in Cameroon and as evidence that the SDF is a minority political party: CB 112 at [41]-[42];
(b)Political Parties of the World 2009, which discusses the SDF presence in the Western Cameroon and that the group is led by Anglophones, and a Freedom House 2011 report which provided that the SDF is associated with the Anglophone minority. Relying on this information the Tribunal found it unusual that the applicant, a Francophone, would support the SDF: CB 113 at [43]-[44];
(c)an International Crisis Group 2010 report which suggested that the SDF had obtained support throughout Cameroon. Political Parties of the World 2009, however, stated that the North West Province is the only province in which the leader of the SDF obtained a majority vote in the 2004 presidential election, with support down from 2002, and Radio France Internationale specified that in the 2011 election the leader of the SDF won 54% of the vote in the North West Province, which was the only area in which the major party leader did not dominate: CB 112 at [45];
(d)the United States Department of State, 2008 Country Reports on Human Rights Practices - Cameroon section, in relation to the 2008 Protest, which was also relied on by the Delegate: CB 112-113 at [46];
(e)country information before the Delegate which suggested the prevalence of document fraud in Cameroon: CB 111 at [36] and 113 at [50]; and
(f)three articles in relation to the Bamileke people for the purposes of considering a claim for protection on the basis of the applicant’s ethnicity: CB 115-116 at [68].
Applicant’s submissions
At hearing the Applicant submitted that the country information he supplied proves the way that people are treated in Cameroon.
Minister’s Submissions
The Minister’s submissions in relation to ground 3 were as follows:
(a)that the choice and assessment of country information was a matter for the Tribunal;
(b)that the Tribunal considered several sources of country information particularly with reference to the SDF. The Tribunal relied on the country information to find that it was unusual that the applicant, a Francophone, would align himself with the SDF. Accordingly, and based on the inconsistencies in the applicant’s claims and evidence, the Tribunal concluded that the applicant was not a member of the SDF, was not politically active in Cameroon and was not issued with a summons by the Cameroon authorities;
(c)in response to the applicant’s oral submissions that the materials he submitted were not considered by the Tribunal, that the Tribunal is not required to comment on every piece of information before it, and the Tribunal obviously did not consider the material submitted germane enough to comment on; and
(d)the Tribunal found that, where the applicant’s brother had recently voluntarily travelled back to Cameroon and the applicant did not suggest that the brother had come to the adverse attention of authorities in Cameroon, the applicant could not fear persecution from those same authorities: CB 115 at [65].
Consideration – ground 3
The choice of, and weight to be given to, country information is a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11]-[13] per Gray, Tamberlin and Lander JJ, discussing ss 420(2)(a) and 424(1) of the Migration Act.
The Tribunal’s consideration of country information, as outlined at [20] above, does not reveal any error of fact of the kind which goes to the jurisdiction of the Tribunal. In this respect ground 3 is simply a request for the Court to overrule factual findings made by the Tribunal. Merits review of this sort is impermissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicant also submitted to the Tribunal materials that can be described as country information: CB 96-100. That information appears to relate to dangers in Cameroon generally or details of what occurred at the 2008 Protest. In relation to this information the applicant put it to the Court at the hearing that “I also think that the proofs – the evidence that I sent with regards to my country – the photos, the evidence – were not taken into consideration, because when I said my life was threatened in my country, this is evidence about the way people are treated and tortured and killed in my country”: Transcript p 2.
The Tribunal was not required to comment on every piece of country information provided by the applicant, or to explain why it rejected an item or attributed less weight to an item: NAHI at [14] per Gray, Tamberlin and Lander JJ. There are situations in which a Tribunal may be required to provide comment on materials submitted by an applicant. It has been held that whether a Tribunal commits a jurisdictional error by failing to consider particular documents or other material depends upon the circumstances of the case and the nature of the material; including the cogency of the material and its place in the assessment of the applicant's claims: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531; (2018) 162 ALD 13 at [28] per Rangiah JJ (with whom Reeves J agreed) citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [111]-[112] per Robertson J; MZYTS at [68]-[70] per Kenny, Griffiths and Mortimer JJ; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [52]-[56] per Katzmann, Griffiths and Wigney JJ.
This is not a situation where the Tribunal was required to comment on any of the country information supplied by the applicant. The reasons for this are as follows:
(a)the Tribunal had regard to a variety of sources of country information for different purposes, which included the Tribunal accepting that the 2008 Protest occurred and that the SDF initiated the 2008 Protest;
(b)the applicant claimed protection on the basis of his membership in the SDF and his involvement in the 2008 Protest; and
(c)the Tribunal was prepared to accept that the applicant was present at the 2008 Protest, but not that he was not a member of the SDF or that he was politically active in Cameroon, or that he was issued with a summons by the authorities: CB 113-114 at [52].
It follows that the country information supplied by the applicant does not contribute anything to the applicant’s claims beyond what was already accepted by the Tribunal. Specifically, in light of these findings, it is difficult to understand how the country information explaining what occurred at the 2008 Protest, without referring to the ramifications for those involved after the event, could be considered relevant to the applicant’s claims for protection. Further, the information concerning generalised violence in Cameroon is not relevant to the Tribunal’s reasons because the applicant’s claims for protection were made on the basis of the applicant’s involvement with the SDF and the persecution of its members after the 2008 Protest: the claims were not made on the basis that the applicant was owed protection obligations because of generalised violence in Cameroon.
The appropriate inference to draw from the Tribunal Decision is that the Tribunal did consider the materials provided by the applicant but considered them irrelevant or insignificant in relation to its findings: Yusuf at [69] per McHugh, Gummow and Hayne JJ; Minister for Immigration & Citizenship v SZGUR and Anor [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 at [67] per Gummow J; SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] per Heerey, Branson and Emmett JJ.
It follows that ground 3 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Applicant’s other oral submissions at hearing
At hearing the applicant made various oral submissions raising distinct issues.
First, the applicant submitted that the main reason the Tribunal refused to grant the Protection Visa was because they were not satisfied that the applicant was involved in politics: Transcript p 3. The applicant stated that he was simply a member of the SDF, not a leader like his brother, and his comments to the RRT in relation to his brother’s protection visa application were made with reference to his level of involvement in politics compared to his brother, not whether the applicant was in fact involved in the SDF. The Tribunal specifically recorded this contention in response to it having been put to the applicant pursuant to s 424AA of the Migration Act: CB 110 at [30]. The Tribunal gave little weight to the applicant’s explanations, which alleged an interpreting error at the RRT hearing for his brother’s protection visa application: see CB 113 at [51] and [12(d)] above, in finding that the applicant was not a member of the SDF: CB 113 at [49].
Second, at the RRT interview in relation to his brother’s protection visa application the applicant said he was still in Gabon because he still held a fear of returning to Cameroon: Transcript p 3. The applicant submitted that the Tribunal failed to take this into account.
The relevant sentence from the applicant’s Brother’s Lawyer’s 2010 Letter is “[the Applicant] stated that although he is not active politically he will not return to Cameroon through fear of persecution for imputed political opinion because of his family, viz. his father and brother”: Lettenmaeir Affidavit, Annexure TML-1, p 2. The Tribunal did address a claim for protection on the basis of imputed political opinion: CB 113-115 at [52]-[66]. Importantly, the Tribunal mentioned that the applicant feared harm by reason of his imputed political opinion: CB 113 at [52]. The Tribunal was not satisfied that the claim was made out because:
(a)of the time that had elapsed since the 2008 Protest;
(b)the fact that the applicant’s wife and children remained in Cameroon;
(c)evidence that the applicant travelled freely in and out of Cameroon;
(d)evidence of his brother travelling freely to Cameroon;
(e)credibility issues with the applicant’s narrative; and
(f)an individual and cumulative assessment of the applicant’s profile as a person who attended the 2008 Protest.
Third, that the documents supplied were the documents available to the applicant to prove his membership with the SDF: Transcript p 7. The Tribunal found that these documents were not genuine, taking into account country information which suggested that document fraud was prevalent in Cameroon, a matter which it put to the applicant at the Tribunal Hearing: CB 111 at [36] and 113 at [50]. The applicant’s submission is no more than an expression of his disbelief in the Tribunal’s finding, and mere disagreement, no matter how strongly expressed, is not a basis for finding jurisdictional error: Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 75 ALD 1 at [114] per Kirby J; EZZ17 v Minister for Immigration & Anor [2018] FCCA 2996 at [16] per Judge Lucev.
Fourth, that there was a reasonable excuse for the applicant having travelled back to Cameroon from Gabon, and that the travels occurred within a year: Transcript p 7, and specifically that the applicant had business in Gabon and was threatened by the Gabonese so he took his wife and child back to Cameroon as his wife and child were not wanted by the Cameroon government. The applicant said that he and his wife were not legally married so there was no issue with her safety. Here, the Tribunal relied on the evidence that the applicant was able to freely transition between Gabon and Cameroon, not that he had a reason to do so: CB 114 at [55]. The applicant’s excuse does not reveal any error in the Tribunal finding as it did.
Fifth, that the applicant paid money for his travel documents and that he had no role in the preparation of the documents: Transcript p 7-8. The applicant did not go any further than merely asserting that he did not prepare the documents. At the Delegate’s interview the applicant denied any knowledge of his travel documents, and before the Tribunal the applicant said that although he was travelling as part of an official delegation he did not know he was travelling to Australia until the day before his departure: CB 115 at [62]-[63]. The Tribunal found that it was difficult to accept that he would be able to travel as part of an official delegation if he was of interest to the Cameroon authorities: CB 115 at [63]. This is not a matter which reveals error in the Tribunal Decision.
Finally, that as a Bamileke person involved in political matters, he was seriously persecuted: Transcript p 8. The Tribunal did consider the applicant’s claims for protection arising from his Bamileke ethnicity, and relied on country information to find that the applicant was not at risk of serious harm on the basis of his ethnicity: CB 115-116 at [67]-[71].
All of these other matters raised in the applicant’s oral submissions at hearing were specifically addressed by the Tribunal, and otherwise do not reveal any error in the Tribunal Decision. They seek to have the Court revisit factual findings made by the Tribunal, and thus fall within the ambit of impermissible merits review: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
CONCLUSION AND ORDERS
The Court has found no jurisdictional error in the Tribunal Decision. The Judicial Review Application must be dismissed and orders will be made to that effect.
The Court will hear parties as to costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 May 2021
0