AFT16 v Minister for Immigration

[2016] FCCA 2302

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFT16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2302

Catchwords:
MIGRATION – Persecution – review of Administrative Appeals Tribunal decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Migration Act 1958, ss.36, 5J, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: AFT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 206 of 2016

Judgment of: Judge Cameron

Hearing date: 22 August 2016

Date of Last Submission: 22 August 2016

Delivered at: Melbourne to Sydney by video-link

Delivered on: 22 August 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr L. Brown

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application filed on 4 February 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 206 of 2016

AFT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Fiji who arrived in Australia on 28 September 2014.  On 1 May 2015 he lodged an application for a protection visa with the Department of Immigration and Border Protection, alleging that he feared persecution in Fiji because of his involvement in an ongoing land dispute.  On 21 October 2015 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection.  As summarised by the Tribunal, the applicant relevantly made the following claims in his application:

   a)he was brought up by his grandfather who had been the chief of his village.  While he was still alive, his grandfather verbally passed on to him a ten acre parcel of land effective upon the expiry of a lease held by Indian farmers.  The lease expired in 2008, after his grandfather’s death in 2007, and thereafter his village clan called him to a meeting and demanded that he renew the Indian farmers’ lease.  This led to a heated argument and he was later kicked, punched and dragged out of his family home;

   b)as a result of the dispute, his children were treated differently and were often ignored during village activities and social functions.  He had faced constant verbal abuse and threats of stabbing for his disobedience.  He had also been told that he had disgraced the village;

   c)he was asked to leave his village and he fled to his step-father’s village to live with his mother.  While there he only worked part-time and had no land to farm and make a living so he and his wife had to send three of their six children to live with his parents-in-law;

   d)he reported the dispute to the local police but the police told him to seek a traditional reconciliation;

   e)the dispute had only been verbally solved as an apology.  He could not return to his village because he was hated there and was seen as an outcast for refusing to listen to the village clan.  He could not relocate to other parts of the country because Fiji is a small country in which everyone knows each other.

2. In support of his application the applicant provided letters from his wife and father-in-law, both dated 15 December 2014.  In his letter, the applicant’s father-in-law stated that three of the applicant’s children lived with him and his wife and attended a school in their village.  The applicant also provided a letter from his local police in Fiji, dated 22 December 2014, which noted that the applicant and some of his uncles had had a heated argument over a parcel of land and that the relationship between them had been “amicably restored after some traditional reconciliation was made in the village”.

3. The applicant made the following additional allegations at a Tribunal hearing on 17 December 2015:

   a)he feared harm from the people in the village, including his uncles and relatives;

   b)usually land on Fiji was passed on from father to son but his grandfather had raised him so he had passed the land to him.  He had no documentary evidence of his claim but his grandfather had told the clan that he wanted the land to pass on to him;

   c)a land trust board had determined that the land belonged to his clan and that the Indian farmers’ lease should be renewed but he still wanted to carry out his grandfather’s intentions.  He had not challenged or appealed the land trust board’s decision;

   d)his mother’s village, where he went to live after being asked to leave his own village, was about ten to fifteen kilometres away.  He lived with his mother from 2008 to 2014 and in that time had worked casually but sometimes not at all.  However, if he returned to Fiji he would be able find work;

   e)in February 2014 he was invited for a drink and the land issue came up.  He was punched by members of his clan, one of whom was his cousin.  He did not report the incident to the police because the police were corrupt and he had not been sure that they would act for him; and

   f)he has memory problems as a result of the injuries he sustained when he was assaulted in 2008.

4. On 8 January 2016 the applicant’s representative provided a post-hearing submission to the Tribunal.  The applicant’s representative relevantly submitted that the applicant’s memory was affected by the beatings he had received and that he had to take sleeping pills.  The representative also submitted that the conflict the applicant faced had arisen as a result of clan jealousy and greed and that the clan had gone against the decision of his grandfather.  Amongst other documents, the submission attached a statement from the applicant dated 24 April 2015 in which he repeated his claims.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

2. The Tribunal first considered the applicant’s claims to be entitled to protection under s.36(2)(a) of the Act. In that regard, the Tribunal found that even assuming that the applicant’s village clan intended to harm him, the underlying motive for such harm was not for reasons of the applicant’s race, religion, nationality, political opinion or membership of a particular social group as provided for by s.5J(1)(a) of the Act. It found that the underlying intent, if there had been one, was the applicant’s disagreement with the determination of the land trust board. For those reasons, the Tribunal found that the applicant’s claimed fear of harm did not meet the requirements of s.5J(1)(a) and, consequently, that he did not have a well-founded fear of persecution in accordance with s.36(2)(a) of the Act.

3. The Tribunal went on to consider the applicant’s claims under the complementary protection criteria in s.36(2)(aa) of the Act and concluded that there were no substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there was a real risk that he would suffer significant harm. That conclusion was based on the following findings and reasons:

   a)based on country information concerning land tenure disputes in Fiji and its positive credibility assessment of the applicant and the documents he had provided, the Tribunal accepted the applicant’s claims concerning his inheritance from his grandfather, the subsequent dispute with his village clan and the physical assault he had suffered in 2008 as a result of the dispute.  The Tribunal also accepted that because of the dispute the applicant had relocated to his mother’s village which was about ten to fifteen kilometres from his own village.  However, the Tribunal also found that, with the exception of the claimed assault in February 2014, the applicant had been able to live in his mother’s village from 2008 until 2014 without being harmed.  It found that that was convincing evidence that the applicant did not face serious harm in Fiji and that the people he claimed sought to harm him in fact had no such intention.  It also noted that the applicant had provided a letter from his father-in-law which indicated that three of his children lived with their maternal grandparents and attended school without experiencing serious or significant harm.  The Tribunal also noted the letter from the police dated 22 December 2014 which stated that the relationship between the applicant and his uncles had been amicably restored after some traditional reconciliation;

   b)the Tribunal noted that the applicant had raised his claimed assault in February 2014 for the first time at its hearing.  The Tribunal did not accept his explanation that he had failed to raise the incident because of memory or mental health problems.  In that regard, it noted that the applicant had been lucid and coherent and despite being invited to, had failed to provide any medical or psychological reports on his mental health.  The Tribunal also rejected the applicant’s explanation that he had not raised the incident because he had not been asked about it and had not understood that he had to provide the evidence to the delegate.  It concluded that the claimed assault had not occurred and that the applicant had invented it to remedy the weakness in his case identified in the delegate’s decision record, namely that he had been able to reside in Fiji from 2008 until 2014 without suffering serious harm;

   c)the Tribunal did accept that there might be some ongoing animosity from the applicant towards members of his village clan who collectively held an interest in the disputed property.  However, it found that it was not for it to determine the rightful holder of the interest in the land.  The Tribunal noted that the evidence before it indicated that a land trust board acting in accordance with Fijian law had made a decision to grant the property interest to a party other than the applicant.  It accepted that the applicant was aggrieved by that decision but found that he could appeal it.  It found that there was no evidence to suggest that the applicant had been prevented from lodging an appeal or that the decision was influenced in such a way as to amount to persecutory treatment against the applicant;

   d)the Tribunal noted that the applicant had suggested that if he returned to Fiji he would continue to express his dissatisfaction with the land trust board’s decision and his view that he had been wrongly denied his grandfather’s land.  Although the Tribunal found that such expressed views could lead to the applicant being ostracised from his village clan, a matter of some significance in traditional Fijian culture, it found any such ostracism would not amount to serious harm; and

   e)in relation to the applicant’s claims concerning the difficulties he had faced in earning an income to support his family, the Tribunal did not accept that while living in Fiji the applicant had been prevented from earning an income to the extent that it had threatened his capacity to subsist.  The Tribunal found that the applicant’s clan would not prevent him from finding employment that might suit his skills and experience.  It therefore found that there was no real chance or risk that the applicant would face serious or significant harm because of any difficulty associated with securing employment in Fiji.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Administrative Appeal Tribunal’s Decision is affected by Jurisdictional Error in that it’s reasoning was and is unreasonable, unfair, and plainly unjust and lacks an evident any intelligible justification and thus denying me a Protection (subclass 886) Visa under s.36 of the Migration Act 1958 (the Act) on the evidence that was before the Tribunal.

   2.The Administrative Appeal Tribunal’s Decision is affected by Jurisdictional Error in that the Tribunal denied me Procedural Fairness in that it made a commitment to consider any further reports but made it’s Decision without the reports being completed/finalised thus denying me a Protection (subclass 866) Visa under s.36 of the Migration Act 1958 (the Act).

2. In his affidavit in support of his application the applicant stated:

   9.Had the Tribunal seriously considered that even though I was born in a Village … and by birthright part of the Clan of the village;

   the Tribunal would have found that for Convention reasons of membership of a particular social group comprising of my Family, are essential significant reasons for all the harm I fear and as a foreseeable consequence of being removed from Australia to Fiji, there is a real risk that I will suffer significant harm again owing to a well-founded fear of persecution are unable or unwilling to avail myself of the protection of the Country.

   10.Had the Tribunal waited to consider Psychological and Medical reports relating to my Mental health as it stated it would;

   the Tribunal would have found that I do suffer from loss of memory from the brutality and harm I have faced in the past including discrimination with my Family in Our own Village.

Ground 1

1. The basis of the Tribunal’s finding that the applicant did not face a real risk of serious harm for reasons set out in s.5J(1)(a) of the Act was that the applicant did not seek to, and did not, identify such a reason as the basis of his claimed fear. There was no unreasonableness, unfairness or injustice in not finding proved a claim which was not made.

2. In any event, the basis of the Tribunal’s finding that the applicant’s circumstances did not engage Australia’s complementary protection obligations followed a thorough consideration of the circumstances which the applicant propounded.  The Tribunal’s finding that the applicant did not face a real risk of significant harm was a result of a logical analysis of the facts advanced by the applicant.  It was certainly not one which no reasonable decision-maker would have reached. 

3. To the extent that the first ground of the application alleged, by the statement that the Tribunal’s decision was “plainly unjust”, that it should have reached a different decision on the facts, it was no more than an invitation to the Court to engage in impermissible merits review and so cannot provide a basis for the setting aside of the Tribunal’s decision. 

Ground 2

1. At para.35 of the Tribunal’s decision it is recorded:

   Upon resumption of the hearing, the applicant’s representative told the Tribunal that responses to the information put to the applicant pursuant to section 424AA of the Act would be provided in writing to the Tribunal.

2. The answer to the applicant’s allegation that the Tribunal denied him procedural fairness is found in paras.37 and 38 of the Tribunal’s reasons, which relevantly state:

   On 8 January 2016, the Tribunal received a post hearing submission from the applicant’s migration agent, together with relevant attachments.  The Tribunal had regard to all of the submissions and additional documentary evidence contained in this submission.  The Tribunal summarises the key points from the submission as follows: …

   Several attachments are included with this submission, some of these had already been submitted to the Department … A further five page handwritten statement by the applicant is also attached.  This, to a significant extent, repeats the applicant’s claims and sets out the applicant’s reasons for remaining in Australia as an unlawful non-citizen. …

   The facts as set out by the Tribunal demonstrate that the characterisation of the Tribunal’s conduct as a denial of procedural fairness cannot be made out and thus jurisdictional error in this connection is not demonstrated.    

3. It may be that the assertion in para.10 of the applicant’s affidavit, filed in support of his application, may provide a different basis to conclude that the Tribunal did deny him procedural fairness.  However, there is no evidence before the Court to suggest that such medical reports were foreshadowed to the Tribunal or that it had been requested to delay its decision until they were received.  In those circumstances, there was no error disclosed by the Tribunal in proceeding to a decision on the review without having received the reports to which the applicant referred.

Ground 3

1. Paragraph 9 of the applicant’s affidavit filed with his initiating application implied that the applicant had a claim to protection based on his membership of a particular social group, however, the material before the Court does not suggest that the applicant ever made such a claim expressly or that the availability of such a claim was sufficiently apparent on the material that the Tribunal had to consider it.  In any event, this contention is not made out for the reasons already given in relation to the first ground of this application.

Ground 4

1. In a second affidavit, which was affirmed on 3 August 2016 and filed on the same day, the applicant raised a number of contentions of which only one might suggest jurisdictional error on the part of the Tribunal.  That is found in para.7 of the affidavit where the applicant deposed that:

   The interpreter caused ‘ misunderstanding’.

   That contention relates to an exchange between the applicant and the Tribunal recorded in para.32 of the Tribunal’s reasons:

   The Tribunal referred to the delegate’s findings [where] the delegate found the applicant had told an officer within the Department that he was planning to return to Fiji once he had earned enough funds in Australia.  It invited the applicant to comment on this, indicating that this did not appear to reflect a genuine fear of returning to Fiji for reasons of serious harm.  The applicant replied by saying the interpreter asked him what he would do if he obtained an Australian Visa and he told the interpreter that he would go back to visit his mother.  The Tribunal put it to the applicant that this further suggests that he does not have a genuine fear of serious harm if he would contemplate returning to Fiji.  The Tribunal also put it to the applicant that it has some difficulty accepting that he would say that he would go back to visit his mother if he had grave fear of serious harm.

2. It is not impossible that the interpreter did make the mistake contended for by the applicant, which is that although the applicant had said that, were he to be granted a visa to stay in Australia he would have gone to Fiji to bring his mother to Australia, the implication in what the interpreter said was that he would spend a longer time in Fiji.  Based on his conduct in court at the hearing of this application, it appears to me that the applicant is better able to comprehend English than he is to express it, so it may be that he has indeed identified an error in the interpreter’s translation. However, it should be noted that no transcript of the Tribunal hearing has been tendered in the present application and no evidence adduced from a person skilled in the applicant’s language and the English language saying that the interpreter at the Tribunal hearing did make a mistake in the translation of that particular statement made by the applicant.

1. However, even if such a mistake had been made, the point in question was not one on which anything turned in the Tribunal’s reasoning.  Consequently, even if the interpreter had misinterpreted the applicant’s response, it had no determinative significance for the outcome of the proceeding before the Tribunal.

Ground 5

1. At the hearing of this application, the applicant also stated that he did not agree with the Tribunal’s decision.  That may be so, but as explained to the applicant at the hearing of this application, the Court cannot undertake reconsideration of his visa application even if it might disagree with the conclusion which the Tribunal reached, a matter on which I express no view.  That submission made by the applicant at the hearing of this application does not point to jurisdictional error on the Tribunal’s part.

Ground 6

1. A matter of greater concern raised by the applicant at the hearing of this application was whether or not he had been fit to present his case before the Tribunal and whether or not he had actually enjoyed a real and meaningful hearing of the sort implicitly guaranteed by s.425 of the Act. In this connection, the applicant tendered a bundle of reports from the International Health and Medical Services, largely of a psychiatric or psychological nature. Of those, the most relevant document appears to be the report of Dr Navneet Johri dated 22 February 2016. Dr Johri interviewed the applicant, apparently by telephone, and said this:

   Impression:  PTSD + organic mood disorder with cognitive deficits. 

   I am unable to conduct cognitive testing on Teleconsult. We tried MMSE but with phone line dropping words, it is difficult. 

   It’s clear that he can’t name days of week in reverse order; he can’t subtract 100-7 serially (unsure of his formal schooling)  he could recall only 2 of the 3 words after distraction;  he had trouble registering them in first place.

   Plan:  1) Ideally, a hospital admission will benefit him the most.  It will allow for MRI brain, EEG and neuropsychiatric testing, depending on availability of these facilities. …

2. It is to be recalled that the Tribunal did consider the applicant’s concerns about his mental capacity.  In that regard, it said this:

   Based on the evidence before it, the Tribunal found the applicant lucid and coherent and there is no credible evidence that he has suffered mental health issues which would have prevented him from remembering an assault which occurred as recently as February 2014.  The applicant did claim at the hearing, and repeated these in a copy of a letter dated 24 April 2015 included in the post-hearing submissions, that he had some memory problems.  However, despite an invitation put to the applicant at the hearing for him to provide medical or psychological reports relevant to his mental health, the Tribunal has not received any such reports or evidence.  Having regard to this, the Tribunal rejects the applicant’s explanation that he did not raise the claimed February 2014 assault previously due to memory or mental health problems. (para.54)

3. The finding that the applicant had been lucid and coherent at the Tribunal’s hearing does not dispose of the issue concerning the applicant’s mental and cognitive state before the Tribunal and whether he enjoyed a real and meaningful hearing.  Importantly, the Tribunal’s view was reached without the information contained in the reports now before the Court. 

4. It is not impossible that the Tribunal’s perspective and conclusion on the question of the applicant’s mental and cognitive state might have been different had the report been before it.  Dr Johri’s report does indicate memory issues, but how severe they are and whether they would affect the applicant’s memory of the alleged February 2014 issue cannot be determined.  I have concerns that the applicant may not have been entirely able to present his case to the Tribunal but Dr Johri’s report just does not go that far. 

5. The evidence before the Court is simply not sufficient to find, on the balance of probabilities, that the applicant was denied, through mental health or cognitive problems, a real and meaningful hearing. 

Conclusion

1. For these reasons, I find that jurisdictional error on the part of the Tribunal has not been demonstrated.  Consequently, the application will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 6 September 2016