Aap20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1003
•12 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AAP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1003
File number(s): PEG 2 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 proper consideration of country information – whether jurisdictional error Legislation: Migration Act1958 (Cth) Pt 7 Div 4, ss 5H, 5J, 5K, 5L, 36, 420, 424, 424A, 425, 430, 474, 476
Migration Regulations 1994 (Cth) sch 2
Cases cited: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83; (2018) 361 ALR 227
BEV15 v Minister for Immigration & Border Protection [2016] FCA 507
BEV15 v Minister for Immigration and Border Protection [2019] HCASL 368
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
Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Border Protection v Ly & Anor [2018] FCAFC 123; (2018) 236 FCR 512
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Minister for Immigration and Border Protection v Pandey & 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 & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff M61/2010E & Anor v Commonwealth of Australia & 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
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
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
WAEE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
WAJR v Minister for Immigration and Multicultural Affairs [2004] FCA 106; (2004) 204 ALR 624; (2004) 80 ALD 435
Number of paragraphs: 36 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 S J Oliver Solicitor for the First Applicant: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 2 of 2020 BETWEEN: AAP20
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 Act1958 (Cth) (“Migration Act”). The applicant seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively”) made on 10 December 2019. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minster 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 arising from statements made in the “Orders Sought” section of the Judicial Review Application. The grounds will be addressed below, in turn, with ground 1 at [9], ground 2 at [15] and ground 3 at [20]. The applicant also raised a number of issues in his oral submissions which are dealt with at [31]-[33] below.
JUDICIAL REVIEW APPLICATION
Background
The relevant background to the Judicial Review Application is as follows:
(a)the applicant was born in Cameroon. The claims for protection arise from his alleged involvement in a political party known as the Social Democratic Front (“SDF”) in Cameroon. He claims to have been assaulted during an SDF initiated protest in February 2008 (“2008 Protest”) and that his uncle was tortured to death shortly thereafter. He says he subsequently lived in fear in various locations in Cameroon before travelling to Australia: Court Book (“CB”) 105 at [14]:
(b)the applicant’s relevant migration history is that:
(i)on 8 September 2016 he lodged an application for a Temporary Short Stay visa on the basis that he would attend the World Masters Athletics Championship in Perth;
(ii)on 21 October 2016 the Temporary Short Stay visa was granted;
(iii)on 24 October 2016 he arrived in Perth; and
(iv)on 1 December 2016 he lodged his Protection Visa application: CB 56;
(c)on 16 November 2018 the Delegate’s Decision to refuse to grant the Protection Visa was made. The Delegate found that the applicant’s claims were not credible and that certain documents provided by the applicant – that is, an SDF membership card, correspondence titled “Attestation of Activist” and a police summons from 2008 – were not genuine. The Delegate’s factual findings were summarised as follows at CB 63:
•I do not accept that the Applicant is a member or former member of SDF
•I do not accept that the Applicant attended or was injured in a protest in Doula, Cameroon on 23 February 2008
•I do not accept that the Applicant has provided genuine documents to support his SDF affiliation and persecution
•I do not accept that the Applicant holds fears for his safety because of his political opinion
(d)on 21 November 2018 the applicant sought review of the Delegate’s Decision by the Tribunal: CB 70-76;
(e)on 26 September 2019 the Tribunal wrote to the applicant inviting him to attend a hearing before the Tribunal: CB 83-91. The applicant responded to the invitation and sent the Tribunal some materials which are best described as country information: CB 92-96; and
(f)on 15 November 2019 the applicant attended the hearing at the Tribunal: CB 97-99 (“Tribunal Hearing”), and the Tribunal Decision was handed down on 10 December 2019: CB 100-116.
By consent of the parties, the Court made orders on 29 January 2020 detailing the timeline for the filing of materials. The applicant filed submissions on 4 January 2021 (“Applicant Submissions”). No further materials were filed by the applicant.
The Minister filed an Affidavit of Georgina Roberta Ellis affirmed 24 March 2020 (“Ellis Affidavit”) and written submissions filed 20 January 2021 (“Minister Submissions”). The Ellis Affidavit annexes documents inadvertently omitted from the Court Book – that is, extracts of pages from the applicant’s passport and the applicant’s marriage certificate – and a copy, with redactions, of the applicant’s PAX card completed on his flight to Australia in October 2016.
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: 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.
The Court has no jurisdiction to engage in merits review, and fact-finding is a matter for the Tribunal, and is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1 – Procedural Fairness
Ground 1 of the Judicial Review Application is as follows:
The tribunal denied me procedure fairness
The applicant did not make any submissions relating to ground 1.
Minister’s Submissions
The Minister’s Submissions are as follows:
(a)the applicant was invited to attend, and he did attend, the Tribunal Hearing;
(b)the applicant was on notice from the Delegate’s Decision that determinative issues on review would include the credibility of his claims and the documentation the applicant relied upon in support of those claims;
(c)the Delegate had found that the SDF membership card, the Attestation Letter and the police summons were not genuine. At the Tribunal Hearing the Tribunal raised its concerns about these documents with the applicant (including the Tribunal’s concerns that the documents had been manufactured) and gave the applicant an opportunity to respond. As the Tribunal raised its concerns about the documents with the applicant prior to making any adverse finding, there is no denial of procedural fairness;
(d)the inconsistencies and deficiencies in the applicant’s statements which were discussed in the Tribunal Decision are not “information” for the purposes of the Migration Act and therefore do not attract procedural fairness obligations; and
(e)the Tribunal questioned the applicant on matters pertaining to the review at the Tribunal Hearing.
Consideration – ground 1
In relation to the issue of procedural fairness the Court notes the following:
(a)the Tribunal invited the applicant to attend the Tribunal Hearing: CB 83-85, and the applicant attended the Tribunal Hearing which lasted around three and a half hours: CB 97-99. The Court is satisfied that the invitation to attend the Tribunal Hearing accorded with s 425 of the Migration Act;
(b)a French interpreter was provided at the Tribunal Hearing and there has been no issue raised by the applicant concerning his ability to effectively communicate with the Tribunal: CB 91 and 97-99;
(c)the Delegate found that the applicant lacked credibility and had provided false documents in support of his Protection Visa application, namely the SDF Membership Card, the Attestation Letter and the police summons. The applicant can therefore be taken to have been on notice of these matters from the date of the Delegate’s Decision: SZBEL. In any event, the Tribunal made its own findings, as to the applicant’s credibility and otherwise, on the basis of its extensive questioning of the applicant at the Tribunal Hearing, and in particular it raised with the applicant certain inconsistencies in his claims and the false documents issue, and relied on the applicant’s responses in forming its conclusions: CB 107 at [33], 108 at [35], [38] and [40]-[43], 109 at [44]-[51], 110 at [52]-[57] and 111 at [59]-[60]. The Court is therefore satisfied that the Tribunal discharged its obligations under s 425 of the Migration Act, and particularly as to the issue of false documents: Minister for Immigration and Border Protection v Ly & Anor [2018] FCAFC 123; (2018) 236 FCR 512 at [47]-[51] per Rares, Robertson, Farrell JJ; WAJR v Minister for Immigration and Multicultural Affairs [2004] FCA 106; (2004) 204 ALR 624; (2004) 80 ALD 435 at [56] per French J; and
(d)section 424A(3)(a) of the Migrations Act allowed the Tribunal to consider country information without requiring the applicant’s response, unless the applicant was not aware of the issues on review arising from the country information: Migration Act, s 425(1). There is no need to consider whether s 425(1) of the Migration Act is applicable here as the issues on review are plainly known and the country information 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 & Border Protection [2016] FCA 507 at [57]-[59] per Bromwich J (from which the High Court refused special leave to appeal: BEV15 v Minister for Immigration and Border Protection [2019] HCASL 368); Plaintiff M61/2010E & Anor v Commonwealth of Australia & 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. No procedural fairness issues therefore arise from the Tribunal’s reliance on the country information in the Tribunal Decision.
In the above circumstances, the Court considers that the applicant was afforded a proper opportunity to participate meaningfully in the review before the Tribunal and has not been denied procedural fairness.
Ground 1 is therefore not made out, and it does not establish jurisdictional error in the Tribunal Decision.
Ground 2 – error of law
Ground 2 of the Judicial Review Application is as follows:
The tribunal committed an error of law
The applicant did not make any submissions relating to ground 2.
Although the Minister made submissions on ground 2, those submissions are directed at what the Court has determined to be ground 3, relating to country information: see [12(d)] above and [23]-[30] below.
Consideration – ground 2
The applicant asserts that the Tribunal committed an error of law. The Court notes that the applicant is a self-represented litigant and the Court ought therefore to remain alert to the possibility of legal error in the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J. In circumstances where:
(a)for the reasons set out at [12]-[13] above, the Tribunal afforded procedural fairness to the applicant in the review;
(b)the Tribunal asked itself the correct questions and identified the applicable law and policy – that is, 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 104-105 at [3]-[8];
(c)the Tribunal understood the basis of the Protection Visa claims, namely that the applicant would suffer harm as a result of his involvement with the SDF and his 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 see also, as to the country information, [23]-[30] below; and
(e)the Tribunal has not demonstrated bias of any kind: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140; (2019) 375 ALR 47,
there was no error of law in the Tribunal Decision.
Ground 2 is therefore not made out, and it does not establish jurisdictional error in the Tribunal Decision.
Ground 3 – Country information
In the “Orders Sought” section of the Judicial Review Application there appears what might be a distinct ground of review which the Court will consider as such. Ground 3 is as follows:
Proper consideration of country information
I will provide further particulars
Applicant’s submissions
The Applicant Submissions, without alteration, are as follows:
On the 6th of November 2019, I emailed the AAT some documents, video and pictures in support of my case. See page 92 of the Court Book. These documents were as follows:
1.I emailed to the AAT President Trump's message to the congress of United States dated October 31, 2019 regarding gross violation of internationally recognized human right by the Cameroonian military. Donald Trump, in his statement to the congress reiterated that, despite the intensive engagement between the United States and the government of Cameroon, Cameroon has failed to address concern regarding persistent human rights violation being committed by Cameroonian forces. These violations include extrajudicial killings, arbitrary and unlawful detentions of innocent civilians serious torture. Accordingly, the President of United States decided to terminate the designation of Cameroon as a beneficiary of the Sub-Sahara country under the AGOA.
2.I also sent video evidences to the AAT on how the Cameroonian forces has been making people disappear in Cameroon. Anybody suspected against the government or supporting the Anglophone is arrested and made to disappear permanently. In one of video I sent to the AAT it show how Cameroonian forces dug a massive hole, put civilian inside and shot at them. This is how many people go missing. These video are taken by some of the military forces not in support of such act and some of for the fun of it. Today most people cannot be accounted for in Cameroon.
3.I also sent video footage and news reports by prominent news outlet in the country like the Guardian and the Post. This video and news report show how the government of Cameroon and their forces violate human rights like shooting at unarmed protester and arbitrary arrest in detention centre serious torture.
4.I also emailed to the AAT a article following the protest of 2008 and the movement of Cameroon youths. I also provide the name of the websites where the full details of the February 2008 strike could be found. If the website is duly consulted then the Court will see clear evidence of the strike I mention in my case and my involvement in it.
5.Finally, pictures of Cameroonian Youths in the February 2008 strike were also sent to the AAT. In the picture you can clearly see our involvement in the protest and how the military reacted by opening fire on us and spraying tear gas and pumping water cannons on us.
I feel the Administrative Appeal Tribunal, did not give proper consideration to those information to support my case. In particular, the AAT did not consider the message of the President of the United States to the congress on human rights violation and video to how people disappear in Cameroon. The Administrative Appeal Tribunal did not take all of these into account.
Minister’s Submissions
The Minister responded to the Applicant’s Submissions on what is now ground 3 on the presumption that the Applicant’s Submissions were directed to ground 2 of the Judicial Review Application. The Minister’s Submissions are as follows:
(a)the present case is not one where the Tribunal made findings that the 2008 Protest did not occur, or that persons who participated therein were not at risk of persecution, or that the applicant himself had not had some role or involvement therein. In the circumstances, the country information provided by the applicant was not relevant material that the Tribunal was obliged to refer to in the Tribunal Decision, as it was unnecessary for the Tribunal to make any particular findings in relation to the country information provided by the applicant;
(b)it cannot be said that the material identified by the applicant was so central to his claims that the failure of the Tribunal to refer to the material gives rise to the inference that the Tribunal failed to properly consider his claims;
(c)the choice of country information and the weight to be given to country information, is a matter for the Tribunal as part of its fact-finding function; and
(d)it cannot be said that the Tribunal failed to consider any relevant evidence or material, such that it fell into jurisdictional error.
Consideration – ground 3
In the Applicant’s Submissions the applicant identifies the following country information as information he provided to the Tribunal in support of his claims, which he contends the Tribunal failed to properly consider:
(a)President Trump’s message to the Congress of the United States dated 31 October 2019 (Applicant’s Submissions at [1]; reproduced at CB 93);
(b)video evidence as to how Cameroonian forces have been making people disappear (Applicant’s Submissions at [2]; referred to at CB 92);
(c)video footage and news reports from prominent news outlets like the Guardian and the Post (Applicant’s Submissions at [3]; reproduced at CB 92);
(d)an article following the 2008 Protest and the movement of Cameroon youths, together with the name of the websites wherein the full details of these events could be found (Applicant’s Submissions at [4]; reproduced at CB 94); and
(e)pictures of Cameroonian Youths in the 2008 protest (Applicant’s Submissions at [5]; reproduced at CB 95-96).
The choice, interpretation and accuracy of country information, and the weight to be given to it, are all matters for the Tribunal, and are matters with which the Court cannot interfere except in limited circumstances where an error goes to the jurisdiction of the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ discussing ss 420(2)(a) and 424(1) of the Migration Act.
Section 430(1) of the Migration Act provides, among other things, that the Tribunal, in its written reasons, is required to set out findings on any material questions of fact and refer to the evidence or any other material on which the findings of fact were based. The Court is entitled to infer that a matter not mentioned in the reasons of the Tribunal was not considered by the Tribunal to be material to the review, and the onus is on the applicant to establish that the appropriate inference to be drawn is that matter was ignored or overlooked: Yusuf at [69] per McHugh, Gummow and Hayne JJ; Minister for Immigration & Citizenship v SZGUR [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. Whether a Tribunal has overlooked evidence and whether that might result in jurisdictional error are often considered with regard to the following circumstances:
(a)the cogency of the evidence; and
(b)the place of that material in the assessment of an applicant’s claims,
see 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.
The country information referred to by the applicant does not relate to, or of itself, constitute a claim which was not dealt with by the Tribunal. The applicant claimed protection on the basis of membership in the SDF and his involvement in the 2008 Protest. The materials referred to by the applicant in the Applicant Submissions at [1]-[3] relate to dangers in Cameroon generally. The materials referred to in the Applicant Submissions at [4]-[5] relate to the 2008 Protest. The applicant has not indicated how proper consideration of these materials would have affected the Tribunal’s conclusion, or in what way the Tribunal failed to have proper regard to that information, to the extent that it was relevant.
The correct inference to draw from the Tribunal Decision is that the Tribunal considered the materials irrelevant or insignificant given:
(a)the Tribunal relied on country information for various purposes. Relevantly, it found the 2008 Protest did occur and that the SDF initiated the protest: CB 106-107 at [22]-[28]. It cannot therefore be said that the Tribunal did not consider a matter to which the country information presented by the applicant related in the context of his protection claims;
(b)the Tribunal did not accept that the applicant was escaping persecution in Cameroon because he is an SDF member who took part in the 2008 Protest: CB 111 at [60]. The Tribunal did not find that the 2008 Protest did not occur or that the SDF were not a part of it, and seemed to accept that the applicant may have played a peripheral role in it: CB 108 at [38]-[39]. The country information supplied by the applicant in relation to the 2008 Protest was not, in light of those findings by the Tribunal, information which the Tribunal specifically needed to refer to, and merely because it did not refer to it, no inference necessarily arises that it was not considered, it being unnecessary for the Tribunal to refer to every bit of evidence before it: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83; (2018) 361 ALR 227 at [41(e)] per Kenny, Griffiths and Mortimer JJ; Applicant WAEE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ; and
(c)the country information provided by the applicant in relation to the 2008 Protest does not appear to contradict the country information relied on by the Tribunal in any fundamental manner, given that the Tribunal are not disputing the existence of the SDF or that the 2008 Protest occurred and was initiated by the SDF: MZYTS at [50] per Kenny, Griffiths and Mortimer JJ.
The Tribunal’s failure to specifically comment on the materials provided by the applicant does not therefore establish that the Tribunal did not properly consider those materials.
Finally, the Tribunal’s reasons were largely based on inconsistencies in the applicant’s claims, and doubts as to the applicant’s credibility, and it is difficult to see how consideration of the country information provided by the applicant could have otherwise ultimately influenced the Tribunal Decision.
Ground 3 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
ORAL SUBMISSIONS AT HEARING
At hearing the applicant raised a number of factual issues with the Court, including:
(a)that the applicant was a member of the SDF involved in “first line” duties, like setting up “spaces”: Transcript p 6;
(b)that the applicant had scars as a result of the SDF events in which he was involved: Transcript p 7;
(c)that the applicant was “moving all the time” and often paid police to allow his travel: Transcript p 7;
(d)with regards to the documents found by the Tribunal to be false, the applicant stated that he had paid a friend of his father for them: Transcript p 7;
(e)that social media demonstrates that people are not free to think, talk or live in Cameroon: Transcript p 7; and
(f)that the applicant would be dead if he were still in Cameroon: Transcript p 8.
The substance of these factual matters was considered in the Tribunal Decision, and these factual matters are for the Tribunal, not the Court, to consider: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
No error, jurisdictional or otherwise, arises from the above matters submitted by the applicant at hearing.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)the three grounds in the Judicial Review Application are not made out and do not establish jurisdictional error in the Tribunal Decision; and
(b)the matters referred to in the applicant’s oral submissions at hearing do not give rise to jurisdictional error in the Tribunal Decision.
It follows that there will be an order that the Judicial Review Application be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 May 2021
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