ADH17 v Minister for Immigration
[2018] FCCA 2968
•24 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADH17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2968 |
| Catchwords: MIGRATION – Protection (class XA) visa – tribunal found applicant an unreliable witness – not a witness of truth – differences between applicant’s oral and written evidence – country information did not support applicant’s claims – well-founded fear of persecution not made out – adverse credibility findings – complementary protection – no real risk of significant harm – Full Court decision in CSO15 distinguished – application dismissed. |
| Legislation: Migration Act 1958, ss.36, 91R |
| Cases cited: CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 |
| Applicant: | ADH17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 51 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing dates: | 18 May 2018 and 7 August 2018 |
| Date of Last Submission: | 7 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms C Symons |
| Solicitors for the Applicant: | Esser Legal |
| Counsel for the First Respondent: | Ms N Campbell |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Mills Oakley Lawyers |
ORDERS
The application filed on 11 January 2017 and amended on 16 October 2017 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $8 367, comprising –
(a)the amount of $7 467 on scale; and
(b)the amount of $900 in costs thrown away for the submission filed on 3 October 2017, pursuant to the order made on 16 October 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 51 of 2017
| ADH17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case raised a very specific issue concerning the application of one aspect of the Full Court of the Federal Court’s reasons in CSO15 v Minister for Immigration and Border Protection,[1] judgment in which was given on 7 February 2018.
[1] [2018] FCAFC 14
In careful submissions prepared and presented on behalf of the applicant by Ms C Symons of counsel, it was contended that in this case the Administrative Appeals Tribunal failed to discharge its statutory duty under the Migration Act (“Act”) because it failed to undertake the analysis the Full Court held that the tribunal was required to undertake. Specifically, the applicant said the tribunal was required, but failed, to engage in the fact intensive analysis in which the tribunal must engage as the High Court held in Minister for Immigration and Border Protection v SZSCA[2] and in SZATV v Minister for Immigration and Citizenship.[3] Relevantly paraphrased, the Full Court of the Federal Court held in CSO15 that such a fact intensive analysis required the tribunal –
a)to assess on the material before the tribunal the place or places to which an individual is likely to return and make findings about at least one of those places;
b)if the place or places to which an individual is likely to return are places in respect of which the person has a well-founded fear of persecution or where the individual faces a real risk of significant harm, then the decision-maker should determine whether there are any other places to which the individual is likely to return and then the tribunal must engage in the same fact-finding; and
c)only if the place or places to which an individual is likely to return are places in respect of which the person has a well-founded fear of persecution or faces a real risk of significant harm that the decision-maker must look at any other places in that individual’s country of nationality where neither of those risks exist.
[2] (2014) 254 CLR 317
[3] (2007) 233 CLR 18
The Full Court further held that the tribunal must examine places that are new or unfamiliar locations for the individual and assess whether it is reasonable and practicable to expect that individual to relocate.
The Full Court further held that it is not simply a matter of the decision-maker finding “a place” where an individual might not be exposed persecution for a Convention reason or to the risk of significant harm and in that final step there must be an assessment of the reasonableness and practicability of the particular individual living in that (new) place.
Further, the Full Court held that such fact intensive analyses depends on what is the individual’s evidence and narrative about the place or places in his or her country of nationality to which he or she has historic connections so the slimmer or more tenuous the connection in the past or the more complex the question of how the individual might live in a region to which she or he has some connections, then the more the analysis may need to turn to questions of reasonableness and practicability.
The question in this case was whether the tribunal undertook the analysis set out in paragraphs 2, 3, 4 and 5.
Synopsis
For the reasons that follow, despite the extremely careful and forensically developed argument advanced on behalf of the applicant, in my judgment the tribunal did not fail to undertake its statutory duty in this case, whether on the grounds set out in CSO15 or otherwise. It follows that the tribunal did not fall into jurisdictional error in this case with the consequence that that this proceeding must be dismissed and the applicant must pay the minister’s costs.
Relevant background
The applicant is a male citizen of Chad who first entered Australia on 1 July 2012 as an unauthorised air arrival. On 6 August 2012 he applied for a protection (class XA) visa. His claims to protection were recorded in a written statement he made dated 27 July 2012. He was interviewed by the minister’s delegate in September 2012. He also relied on the information in his statutory declaration made 29 July 2016. As discussed below in these reasons, the applicant gave evidence to the tribunal on 26 August 2016. Written submissions were prepared on his behalf on 26 September 2016.
The applicant claimed he was a citizen of Chad who was born and raised in Moso Kori before moving to N’Djamena in 1998. His wife and three children live in Saudi Arabia. The applicant claimed that he worked as a driver and personal assistant for Haroun Koso Moussa (“Haroun”) from 1998 until 2004, during which time he lived in Haroun’s home. The applicant claimed that Haroun and his family were supporters of the opposition party in Chad, known as Movement for Democracy and Justice in Chad (“MDJT”). As part of his employment one of the applicant’s regular tasks was to drop off goods, such as ammunition, money, bullets, boxes and a land cruiser, to a colonel named Edrishay who also supported the MDJT. The applicant claimed he was asked to deliver some wireless devices to Colonel Edrishay in August 2003. Upon his return to Haroun’s house, Haroun’s uncle informed him that “members of the intelligence” had discovered the equipment taken to the colonel, Haroun had been arrested and the applicant’s life was at risk. After temporarily going into hiding at a former employer’s home, the applicant claimed he subsequently went to the home of Mohamad Salih Abdel Lahi (“Jamal”) who was a contact of Haroun. As the applicant was talking to Jamal, intelligence officers came and arrested him. The applicant claimed that he was imprisoned for a month, during which time he was badly tortured and forced to sign a confession written in French that he could not understand. The applicant claimed he was taken to hospital after one of his legs started to swell badly.[4] He escaped from the hospital with the assistance of one of Haroun’s relatives and was taken to Cameroon before obtaining a visa to Saudi Arabia. He met his Sudanese born Chadian national wife in Saudi Arabia where they married and had three children.[5]
[4] Court book (filed 4 July 2017) 78
[5] Ibid 74
The applicant claimed that in 2009 while in Saudi Arabia he found out his name was on a list of wanted persons published by the Chad embassy. In 2010 his passport was taken by the Saudi authorities. He said his visa expired while he was in Saudi Arabia and he stayed on illegally until he “bought the identity of another person which enabled him to remain in Saudi Arabia as a resident”.[6] He remained in Saudi Arabia until 2012, when he travelled to Australia on a false passport and claimed protection on arrival.[7]
[6] Ibid 75
[7] Ibid 74-75
The applicant feared he would be seriously harmed or killed if he returned to Chad on the basis of his political opinion as a supporter of the MDJT and his association with Haroun[8] and that the Chadian authorities would not protect him as they had already subjected him to jail and torture.[9]
[8] Ibid 1, 27, 51
[9] Ibid 48
The applicant provided the department with copies of his Chadian identity card,[10] a copy of the passport he used to travel to Australia[11] and copies of his and his wife’s Saudi Arabian residence permits.[12]
[10] Ibid 55
[11] Ibid 54
[12] Ibid 52-53
The applicant’s counsel’s complexion of the applicant’s claims were less expansive. They were in the following terms, taken from paragraph 3 of the of the applicant’s written submissions dated 20 July 2018 –
The applicant’s claims were initially focused on his imputed political opinion. The applicant claimed that he would be perceived to be a supporter of the Movement for Democracy and Justice (the MDJT) and therefore an opponent of the ruling political party in Chad. The applicant described how, in around 2003, he had been tortured, shot and imprisoned by security officials, after it was discovered that he had provided military equipment to the MDJT. The applicant was released from prison after providing what he assumed to be a confession (it was written in French) and had subsequently escaped to Cameroon, and later, to Saudi Arabia. In 2009, the applicant discovered that his name was on a list of wanted persons published by the Chad Embassy. In 2012 he travelled from Saudi Arabia to Australia.
On 28 November 2014 the minister’s delegate decided to not grant the applicant the protection visa he sought.
On 8 December 2014 the applicant sought merits review before the tribunal. On 16 May 2016 the applicant was invited to appear before the tribunal to give evidence and to present argument at a hearing scheduled for 24 August 2016, rescheduled without protest for 26 August 2016.
When returning the applicant’s completed hearing response form, the applicant’s statutory declaration made 29 July 2016 was also provided to the tribunal. In that statutory declaration, the applicant additionally asserted that –
a)he would be imprisoned or “disappeared” if forced to return from Chad after spending time in a Western country;[13]
b)the Islamic extremists, Boko Haram, were politically active in Chad and had attacked his sister in July 2015;[14] and
c)he was a member of the Ahza tribe which is discriminated against in Chad.[15]
[13] Ibid 111 [11]
[14] Ibid 111-112 [12]
[15] Ibid 112 [13]
During the hearing before the tribunal the applicant told the tribunal that he had received psychological and psychiatric treatment in Australia, but that he no longer had a case manager and no longer saw anyone and was not on medication.[16] At the conclusion of the hearing the tribunal granted the applicant four weeks’ time in which to provide further material in support of his application, including any medical report or psychological report relating his situation and injuries.[17] A further submission was provided to the tribunal by the applicant’s representative on 22 September 2016 but no medical or psychological evidence was produced.[18]
[16] Ibid 138 [35]
[17] Ibid 138 [36]
[18] Ibid 118-130
Relevance of credibility
Ms Symons’s thoughtful argument was premised on the absence of adverse credibility findings. In CSO15 the Full Court made no reference to adverse credibility findings. That was not the situation in this case.
To the contrary.
The tribunal’s decision was replete with seriously adverse credibility findings. The significance of adverse credibility findings was the subject of debate between Ms Symons and me. It unfolded as follows during discussion about the mechanics of the regime canvassed by the Full Court in CSO15 at paragraph 45 of the joint judgment[19]–
[19] Transcript of proceeding 12-13
HIS HONOUR: Do you say that the obligation still inures, if the tribunal takes a view that the applicant’s claims are to be rejected at the threshold, because he’s utterly incredible?
MS SYMONS: Yes. It might be an example ‑ ‑ ‑
HIS HONOUR: So – wait a second. Let me understand that. That’s an important point. So in other words – you say that the tribunal rejects everything that the applicant says holus-bolus, says he’s a bald-faced liar, but it still has to go down that path that you’re telling me arises from paragraph 45. Do you?
MS SYMONS: Well, we need to consider at what point ‑ ‑ ‑
HIS HONOUR: No, no. What’s your – you have to give me not – unequivocal answers.
MS SYMONS: Your Honour, the – it’s difficult, because the way in which a tribunal makes a decision can take different forms, and it might be, that in a fairly unusual case all of the applicant’s claims are rejected. So the question of whether it had a well-founded fear of persecution fails at that absolute-threshold point, where there is no need to engage with concepts of ‑ ‑ ‑
HIS HONOUR: Yes. Well, that’s my point. That’s my point. So does it follow, that if the applicant fails to get over the threshold of even invoking 36(2A) – for example – that it’s not necessary, to go down the path prescribed by paragraph 45?
MS SYMONS: That may well be right.
HIS HONOUR: Well, it would, probably, follow. Wouldn’t it?
MS SYMONS: Yes. But in my submission, that’s not this case, but I would have to accept that it’s not – wouldn’t always follow a linear course. You wouldn’t always be required to make that finding or engage in that identification, but in my submission, the tribunal had to here, if it wanted to engage and rely upon section 36(2BC), because it necessarily involves ‑ ‑ ‑
HIS HONOUR: Well, that’s what I – as you’ve been talking I’m wondering whether your better point is that the tribunal relies on that particular section but doesn’t go through the analysis of the elements of the section so as to identify that it is or is not properly made out.
MS SYMONS: Yes. Well, your Honour, the ‑ ‑ ‑
HIS HONOUR: Is that a point that ‑ ‑ ‑
It was plain enough that Ms Symons acknowledged that in certain circumstances an applicant for a protection visa would encounter obstacles especially where that applicant’s evidence about the events allegedly giving rise to the fear of harm was rejected. That concession was properly made. It followed logically. If the tribunal took the view that the applicant was not to be believed, it followed that the tribunal was entitled to reject the factual premise on which the whole of the applicant’s claims were based. That was the situation in this case. It seemed to me that such a result followed whether the protection claim was granted in a Convention based claim or it was a complementary protection claim. Put differently, it seemed to me that Ms Symons’s argument about the process of logic in which a tribunal was required to engage, which CSO15 addressed, was based on there being no challenge to the applicant’s factual assertions. Nowhere in the reasoning of the Full Court in CSO15 was there any rejection of the applicant’s veracity. Nor was there a hint that the tribunal found the applicant an unreliable witness. That was an entirely different set of circumstances to those in this case. In this case the tribunal made a collection of adverse credibility findings.
The tribunal accepted that the applicant was a national of Chad who did not have a right to enter or reside in any other country except Chad[20] but expressed concern about the applicant’s credibility and identified differences between his oral evidence and his written statements and the plausibility of some of his claims.[21]
[20] Court book 141 (at [54])
[21] Ibid (at [55])
The tribunal observed that in his written statement the applicant said that after he returned to Haroun’s house, Haroun’s uncle informed him that Haroun had been arrested but in his oral evidence the applicant claimed the uncle said that Haroun had escaped and the applicant should do the same.[22] The tribunal noted that at the beginning of the hearing it had asked the applicant if he had assistance completing his visa application forms and written statement, to which the applicant told the tribunal his lawyer had written the documents, he used an interpreter, all the information in the documents was true and correct and he did not wish to add or change anything to that information.[23] The tribunal found that the applicant had provided significantly different information, which reflected poorly on his credibility and the reliability of his evidence and claims.[24]
[22] Ibid (at [56])
[23] Ibid 141-42 (at [60]-[61])
[24] Ibid (at [61]-[62])
The tribunal questioned why the applicant was arrested during a raid at Jamal’s house and imprisoned, when no one else was arrested.[25] The tribunal was not persuaded by the applicant’s response that the police only wanted him as he was the main person to assist Haroun, given the applicant had otherwise stated that the police were after everyone associated with Haroun.[26] The tribunal was also concerned that the applicant would visit a home that he knew was under surveillance while trying to hide from the authorities. The tribunal found the applicant’s claims regarding the alleged raid at Mohammad’s house were “implausible” and reflected poorly on his credibility and reliability of his evidence.[27]
[25] Ibid (at [63]-[65])
[26] Ibid (at [67])
[27] Ibid (at [68]-[69])
The tribunal enquired how the applicant had escaped from hospital when he was under guard.[28] It found his explanation that the police guards were replaced by hospital guards once he started to recover and that his brother-in-law had bribed the guards and orchestrated his escape to be implausible in circumstances where the applicant had also claimed that the authorities were after everyone associated with Haroun, particularly him. The tribunal found this reflected poorly on the applicant’s credibility and reliability of his evidence.[29]
[28] Ibid (at [70])
[29] Ibid 142-43 (at [71]-[73])
The tribunal raised its concerns about the plausibility of the applicant’s claim that he overheard a conversation in a park in Saudi Arabia, six years after leaving Chad, where his name was mentioned as a person wanted in Chad.[30] It was not persuaded by the applicant’s response that extradition to Chad from Saudi Arabia was a big issue at the time.[31] At the hearing the tribunal noted country information which indicated that a peace agreement was reached between the MDJT and the Chadian government in 2005, which contradicted the applicant’s claims.[32] The tribunal was not persuaded by the applicant’s response, finding that the applicant had told the tribunal he had no interest in politics and was only connected to it through his employment with Haroun, which was over 10 years ago.[33]
[30] Ibid 143 (at [74]-[75])
[31] Ibid (at [76])
[32] Ibid (at [77]-[79])
[33] Ibid (at [80])
The tribunal considered and accepted country information which indicated there was a lack of law and order in Chad, including abuses by Chadian security forces, but did not accept the information supported the applicant’s claim that he would be of ongoing adverse interest to the authorities due to his previous involvement with Haroun.[34] Whilst recognising the applicant had been generally consistent throughout the application process, the tribunal found that the applicant’s oral evidence was different to his written statement about the circumstances leading to his arrest.[35] The tribunal expressly considered the effect of the passage of time on a person’s ability to recall details and the applicant’s evidence that he had seen a psychiatrist in Australia for seven months but observed that the applicant had not provided any medical evidence to indicate he had an ongoing mental health condition that would affect his recall or ability to provide evidence consistently despite being granted time in which to do so. The tribunal did not accept that the applicant’s mental health condition or the passage of time explained the differences between his oral and written evidence. The tribunal was not satisfied the applicant had told the truth in relation to critical aspects of his claims.[36]
[34] Ibid 144 (at [83])
[35] Ibid (at [84])
[36] Ibid (at [84])
In view of its credibility concerns the tribunal found that the applicant was not a witness of truth.[37] It rejected all of applicant’s key claims, including that –
a)he was employed by a person in Chad who was an active MDJT member;
b)he made deliveries to opposition party members;
c)he was arrested, imprisoned, tortured and forced to sign a confession;
d)he escaped from hospital and fled Chad for the reasons claimed;
e)he is or was of adverse interest to the Chadian intelligence agency or government;
f)one of his friends advised him that he was wanted in Chad by staff at the Embassy in Saudi Arabia; and
g)he overheard a conversation in 2010 or 2011 that he was wanted in Chad.[38]
[37] Ibid 144-45 (at [86]-[87])
[38] Ibid 145 (at [87])
The tribunal found that, based on the applicant’s own evidence, he was not interested in politics and did not remain in contact with anyone (including colleagues from the MDJT) due to a shared interest in politics.[39] It also did not accept that the applicant would be perceived or be imputed as having a political opinion due to his previous employment in Chad, that he had a political opinion or was politically opposed to the Chad Government, or that he would undertake any political activity upon return to Chad.[40] Accordingly, the tribunal did not accept there was a real chance that the applicant would suffer serious harm due to this real or imputed political opinion, including his purported (but not accepted) involvement with MDJT if he returned to Chad.[41]
[39] Ibid (at [88])
[40] Ibid (at [89])
[41] Ibid 145-46 (at [90]-[92])
As the tribunal did not accept that the applicant was detained or signed a confession, it also did not accept that the authorities in Chad had any adverse interest in him or that he faced a real chance or serious harm from the authorities if he returned.[42] It did not accept the applicant’s claim that there were outstanding court sentences against him in Chad.[43]
[42] Ibid 146 (at [93])
[43] Ibid (at [94]-[95])
The tribunal considered the applicant’s alleged fear of racism arising from his claim that the Ahza tribe was perceived as “weak” by the Chadian regime and persecuted.[44] The tribunal observed that the applicant told it he did not experience any harm while in Chad because he was a member of the Ahza tribe. The tribunal found that as it was not aware of any country information to suggest that members of specific tribes were targeted or persecuted in Chad. The tribunal did not accept that the applicant faced a real chance of serious harm due to racism or his tribal membership on return to Chad.[45] Similarly, the tribunal found there was no country information that supported the applicant’s claim that returnees, including failed asylum seekers from western countries, were targeted, imprisoned or “disappeared” on return to Chad. Accordingly, it was also not satisfied that he faced a real chance of serious harm on return to Chad for these reasons.[46]
[44] Ibid 146
[45] Ibid (at [96]-[97])
[46] Ibid (at [99])
Despite its concerns about the applicant’s credibility, the tribunal was prepared to accept that his sister was killed by Boko Haram as this was supported by country information which indicated that Boko Haram attacks had increased in Chad.[47] However, the tribunal observed that “when questioned if Boko Haram would target the applicant specifically, the applicant told the tribunal they are targeting everyone”.[48] It did not accept that the applicant would be specifically targeted by Boko Haram or that the group’s attacks involved systemic and discriminatory conduct as required by s 91R(1)(c) of the Act.[49] The tribunal was not satisfied that the applicant had a well founded fear of persecution and found he did not meet the criterion in s 36(2)(a) of the Act.[50]
[47] Ibid 147 (at [100]-[101])
[48] Ibid (at [101])
[49] Ibid (at [101]-[102])
[50] Ibid (at [103]-[105])
The tribunal separately considered whether the applicant met the complementary protection criterion but, given its adverse credibility findings and rejection of the applicant’s factual claims, the tribunal was also not satisfied there was a real risk the applicant would suffer significant harm if he returned to Chad for any of the reasons claimed.[51] The tribunal accepted that Boko Haram attacks had increased in Chad but found that this risk was faced by the population generally and not the applicant specifically, and therefore found he did not satisfy the criterion set out in s 36(2B)(c) of the Act.[52] The tribunal was not satisfied that the applicant’s claims, considered individually and cumulatively, gave rise to a real risk of significant harm and found he did not meet the criterion in s 36(2)(aa) of the Act.[53]
[51] Ibid 147-48 (at [106]-[114])
[52] Ibid 148 (at [115])
[53] Ibid 148-49 (at [117]-[118])
It seemed to me that those findings of fact remove this case from one to which the reasoning in CSO15 was applicable, whether for the purpose of Convention based protection or for complementary protection. I do not agree that the tribunal misconstrued s 36(2B)(c) of the Act as the applicant said. The tribunal rejected the applicant’s case, almost in its entirety. No challenge was made in this case that the factual findings, especially those relating to credibility, were wrongly made.
In my view, in view of those credibility findings, there was there was no need for the tribunal to embark on the excursus of s 36(2B) of the Act.
Conclusion
In those circumstances, it seemed to me that the application for judicial review must be dismissed and the applicant must pay the minister’s costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 24 October 2018
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