Aft16 v Minister for Immigration and Border Protection
[2017] FCA 574
•24 May 2017
FEDERAL COURT OF AUSTRALIA
AFT16 v Minister for Immigration and Border Protection [2017] FCA 574
Appeal from: Application for extension of time: AFT16 v Minister for Immigration & Anor [2016] FCCA 2302 File number: NSD 198 of 2017 Judge: BARKER J Date of judgment: 24 May 2017 Catchwords: MIGRATION – application for protection (class XA) visa – application for extension of time to appeal from Federal Circuit Court decision – whether Tribunal failed to consider full integers of claim – whether Tribunal failed to give proper weight to evidence – applicant no longer in Australia – application dismissed by reason of non‑attendance Legislation: Migration Act 1958 (Cth) ss 5(1)(a), 36(2)(a), 36(2)(aa)
Federal Court Rules 2011 (Cth) r 35.33
Cases cited: AFT16 v Minister for Immigration & Anor [2016] FCCA 2302 Date of hearing: 24 May 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 53 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: Mr AE Flick Solicitor for the First Respondent: DLA Piper ORDERS
NSD 198 of 2017 BETWEEN: AFT16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
24 MAY 2017
THE COURT ORDERS THAT:
1.The application for extension of time to appeal be dismissed.
2.The applicant pay the costs of the first respondent, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BARKER J:
The applicant applies for an extension of time to appeal from a decision of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant him a protection (class XA) visa under the Migration Act 1958 (Cth).
The applicant is a male citizen of Fiji and was born in 1976. He arrived in Australia without a visa.
The applicant applied for a protection (class XA) visa on 1 May 2015. In his application, the applicant claimed that he was raised by his grandfather, a chief in a village in Ba, on the western side of Fiji, and that his grandfather verbally passed on a 10 acre piece of land upon the expiry of an existing lease on the land.
The applicant said that his grandfather passed away in 2007, and upon the expiry of the lease in 2008, the village clan ordered that the lease be renewed. The applicant claimed there was a heated argument and he was later kicked, punched and dragged out of his family home. The applicant claimed to have fled to his step-father’s village after being threatened and asked to leave his village.
The applicant stated that he was working part time and had no piece of land from which he could farm and make a living, and as a consequence, his wife had to send three of his children away to his in-laws’ village.
The applicant further claimed that his children have been treated differently since the dispute with the village clan and were often ignored during village activities and social functions. He said he received constant verbal abuse and threats from other villagers because of his disobedience, and he was told he had disgraced his village for causing disruptions.
The applicant claimed he could not return to his village because there is hatred for him there and he is perceived as an outcast for refusing to listen to the village clan. He stated that he feared he will be abused again and his wife and children will be treated differently as they have in the past. The applicant said he could not relocate to other areas in the country as everyone in Fiji knows each other.
The applicant’s protection visa application was refused by a delegate of the Minister on 21 October 2015. On 11 January 2016, the Tribunal affirmed the delegate's decision under review.
The applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. On 22 August 2016, the primary judge held that the Tribunal’s decision was not affected by jurisdictional error and so dismissed the application. See AFT16 v Minister for Immigration & Anor [2016] FCCA 2302.
In an affidavit made 14 February 2017, the applicant states that he did not lodge an appeal on time because he did not have the financial means to obtain a lawyer, and was unware that he could lodge an appeal to the Court.
The applicant now seeks an extension of time to appeal from the decision of the Federal Circuit Court by an application filed 16 February 2017.
DELEGATE’S DECISION
According to the Tribunal, the delegate found the applicant was a generally credible witness, but nonetheless refused to grant the applicant a protection visa on the basis that the delegate was not satisfied that the applicant’s fear of persecution was for any of the reasons provided in s 5(1)(a) of the Act.
The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, there was a real risk the applicant would suffer significant harm.
The delegate therefore found the applicant failed to meet the criteria in s 36(2)(a) and s 36(2)(aa) of the Act.
TRIBUNAL’S DECISION
The applicant appeared before the Tribunal on 17 December 2015 to provide further evidence and argument. He was assisted by his representative and a Fijian interpreter at the hearing.
The Tribunal said the applicant explained he feared returning to Fiji for fear that people in his village, including his relatives, his uncle and his clan would harm him because of the land dispute in 2008. The applicant told the Tribunal those people hate him and are still arguing over the land.
At the hearing, the Tribunal noted to the applicant that the country information and evidence before it indicated that the Taukei Land Trust Board (TLTB) had decided that the lease should be renewed and the land remain owned by the clan. The applicant replied that his grandfather told the clan he wanted the applicant to inherit the disputed land, and the applicant thought the clan would tell the Taukei Land Trust Board (TLTB). The applicant agreed that the clan now holds the interest in the land, but added that he wanted the land to revert to what his grandfather intended.
The applicant was invited by the Tribunal to describe the events that took place in 2008. The applicant stated there was a heated argument and he was punched until he nearly died. After the beating, the applicant said, he was chased away from the village and lived with his mother in another village, which was situated approximately ten to 15 kilometres away from his own village, from 2008 until 2014, during which time he was dependent on her.
The applicant also stated that the last time someone wanted to hurt him was in February 2014, when he was invited to have a drink and the issue of the land came up, and members of his clan, including his cousin, punched him. When asked why he had not previously mentioned the assault in 2014 to the delegate, the applicant replied that the delegate only asked him to explain the incident in 2008.
The Tribunal said the applicant claimed he could not remember any other instances of harm or threats between 2008 and 2014 because he sustained an injury to his head during the 2008 assault. The applicant added that he has nightmares and cannot remember things. The Tribunal advised the applicant that it would consider any psychology reports relating to his mental health if he provided such reports.
The Tribunal also noted the delegate’s findings that the applicant had told an officer within the Department of Immigration and Border Protection that he was planning to return to Fiji once he had earned sufficient funds in Australia. This, the Tribunal said, undermined his claim that he had a grave fear of returning to Fiji. On 8 January 2016, the applicant provided post-hearing submissions to the Tribunal, in which he submitted his reference to making money was a future reference, to a time when he had already obtained papers to legally reside and work in Australia.
The applicant also submitted that his memory was affected by the beatings he had received, and that he continues to take sleeping pills.
The Tribunal put to the applicant that Fiji has a functioning and relatively effective police and judicial system, and he would be able to avail himself of police protection. The applicant responded, in post-hearing submissions, that the police cannot solve the issues because they know, and are related to, the locals in his village.
The Tribunal ultimately found the applicant’s evidence to be unreliable and concluded that the applicant’s claims that he faced a real chance of serious harm or a real risk of significant harm were embellished and not supported by relevant country information.
The Tribunal found the applicant did not have a well-founded fear of persecution for a Convention reason. Rather, the Tribunal said, the underlying intent of the feared harm was based on the applicant disputing the outcome of a land tenure determination by the TLTB. For this reason, the Tribunal found the applicant did not meet the criteria in s 36(2)(a) of the Act.
The Tribunal then turned to the assessment of the complementary criteria under s 36(2)(aa) of the Act. The Tribunal accepted that the applicant was party to a land dispute, and that it was his grandfather’s desire that the applicant inherit an interest in the land. It further accepted that after the death of his grandfather and upon the expiry of an existing lease over the land, the village clan demanded a renewal of the lease.
The Tribunal accepted that the applicant experienced physical assault during the land dispute, and thereafter, he relocated to his mother’s village some ten to fifteen kilometres away from his own village.
However, the Tribunal found that the applicant was able to live in his mother’s village, within relatively close proximity to his village, without being seriously or significantly harmed by his claimed persecutors from 2008 until 2014, and that this was convincing evidence that the applicant did not face a real chance of serious harm in Fiji. The Tribunal also noted that the applicant provided evidence indicating that three of his daughters resided with their grandparents and attended a village school without experiencing serious or significant harm.
With respect to his claimed assault in February 2014, the Tribunal noted that the applicant sought to explain his omission of the assault from the Department by reference to his memory difficulties and by implying he was not asked or did not understand that he was required to provide details of the incident to the delegate. The Tribunal was not satisfied that either explanation explained the omission. The Tribunal noted that, despite being invited to provide medical or psychological reports regarding his mental health, the Tribunal did not receive any such reports or evidence. The Tribunal concluded that the applicant invented the claimed assault of February 2014 to remedy weaknesses in his protection claims.
The Tribunal considered that if the applicant returned to Fiji, he may continue to express his dissatisfaction with the TLTB’s decision and his view that he was wrongly denied his grandfather’s land, and this may lead to ostracism from his village clan. However, the Tribunal did not find that any such ostracism amounted to serious harm or significant harm, as defined in the Act.
In relation to the applicant’s reference to difficulties he faced in receiving an income or earning money to support his family, the Tribunal found, on the basis of the country information before it, the applicant had not been prevented from earning a livelihood to the extent that it threatened his capacity to subsist, and that there was no real chance or real risk that the applicant would face serious or significant harm for any difficulty associated with securing employment in Fiji.
For these reasons, the Tribunal did not find that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there was a real risk that the applicant would suffer significant harm.
The Tribunal was therefore not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa and the applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court.
JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT
In his application for review of the Tribunal’s decision, the applicant raised the following grounds:
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).
In relation to ground 1, the primary judge said the Tribunal found that the applicant did not face a real chance of serious harm for any of the reasons set out in s 5J(1)(a), and the applicant did not identify any such reason as the basis of his claimed fear. The primary judge noted there was no unreasonableness, unfairness or injustice in not finding proved a claim which was not made.
The primary judge further stated that 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. The primary judge also noted that the applicant’s statement that the Tribunal’s decision was “plainly unjust” invited the Court to engage in an impermissible merits review, and so could not provide a basis for setting aside the decision.
With respect to ground 2, the primary judge refers to paras [37] and [38] of the Tribunal’s reasons, which relevantly state that the Tribunal received and had regard to the applicant’s post hearing submissions and additional documentary evidence attached to the submissions. These facts, the primary judge said, demonstrate that the Tribunal’s conduct could not be characterised as a denial of procedural fairness.
The primary judge noted that the applicant, in an affidavit filed in support of his application for review, asserted the following:
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.
In response to para [9] of the affidavit above, the primary judge considered there was no material before the Court to suggest that the applicant ever made such a claim expressly, or that such a claim was sufficiently apparent on the material that the Tribunal had to consider it.
In response to the assertion at para [10] of the affidavit, the primary judge said that the Tribunal did not receive any of the reports which the applicant referred to and the applicant had not requested the Tribunal to delay its decision until any such reports were received.
The primary judge stated that the applicant raised additional contentions in a second affidavit affirmed on 3 August 2016, including that the interpreter caused misunderstanding during the hearing. The primary judge noted that the applicant did not tender a transcript of the Tribunal hearing and did not adduce evidence that the interpreter made a mistake in translating particular statements made by him. Even if such a mistake had been made, the primary judge said, it had no determinative significance for the outcome of the proceeding before the Tribunal, that is, the Tribunal’s reasoning did not turn on it.
At the hearing before the primary judge, the applicant raised the issue of 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 as implicitly guaranteed by s 425 of the Act. In this respect, the applicant tendered a bundle of reports from the International Health and Medical Services in relation to his psychiatric and psychological state.
The primary judge noted that the Tribunal considered the applicant’s concerns about his mental capacity at [54] of its reasons, and acknowledged that the Tribunal’s conclusion on the applicant’s mental and cognitive state might have been different had the reports now before the Court been before the Tribunal. However, the primary judge ultimately found that the evidence was not sufficient to find, on the balance of probabilities, that the applicant was denied a real and meaningful hearing through his mental health or cognitive problems.
For these reasons, the primary judge concluded that jurisdictional error on the part of the Tribunal had not been demonstrated and so dismissed the application.
APPLICATION IN THIS COURT
In his affidavit sworn 14 February 2017, the applicant stated that he did not lodge an appeal on time because he did not have the financial means to obtain a lawyer, and was not aware that he could lodge an appeal to this Court.
The applicant filed an application for an extension of time on 16 February 2017. In the affidavit of 14 February 2017, the applicant raises the following grounds in support of his application:
9.The Administrative Appeal Tribunal constructively committed jurisdictional error when it made its decision on 11 January 2016.
10.The tribunal made an error by not obtaining any psychology and other medical reports and not given proper weight to some evidence.
11.The tribunal failure to by not considering that I am a member of particular social group.
12.The generalisation of tribunal comment that Fijian who travels to Australia on tourist visa are only here to gain employment is an error.
13.The tribunal erred by not adjourning the interview in respect of the interpreter misunderstanding which amount to misrepresentation and miss-interpreted.
14.The tribunal use of country information to reach it’s conclusion was not made according to law and should be vitiated.
15.The tribunal misinterpreted and misapplied section(s) of the Migration Act by not given proper weight to some evidence.
16.The Tribunal misconstrued the Complementary legislation when it failed to recognise what amounts to severe and inhumane treatment and punishment and by that failure the tribunal failed to consider Australia’s international obligations under the various international Conventions.
17.The Tribunal was in error because the decision made was in denial of procedural fairness and denial of natural justice to me.
18.The Tribunal made erroneous findings, reached mistaken conclusions on material questions of fact in breach of Section of the Migration Act 1958.
19.The learned Judge of FCCA erred by misapplying section of the Migration Act 1958
20.The Tribunal failed to make relevant enquiries into critical facts the existence of which can easily be ascertained from a good source such as the Fijian community.
21.That the delegate failed to engage and invoke Australia’s International Obligation under the International Covenant for Civil and Political Rights (ICCPR) and its second Optional Protocol aiming at the abolition of the Death Penalty and the Covenant against Torture.
22.The Tribunal misapplied real risk and real chance of significant harm.
23.The Tribunal had failed to ask relevant questions prescribed by law and its decision was beyond power.
The applicant seeks leave to file an amended application with particulars, any supplementary affidavit and any relevant documents.
By a draft notice of appeal, the applicant seeks to raise the following grounds of appeal:
1.The Federal Circuit Court erred by not properly consider whether the Administrative Appeal Tribunal failed to consider all the evidence before it and/ or all the elements of my claim.
2.The Federal Circuit Court erred by agreeing with Tribunal and misapplying the test of whether there was a real risk of significant harm to me if returned to my home country of nationality.
Particulars
I)The Tribunal made a legal error in failing to consider the full integers of my claim with respect to the complimentary protection criteria.
II)Further, in coming to its decision on 11 January 2016, the tribunal failed to have regards to relevant considerations by not given proper weight to some of the evidence. This failure is a denial of procedural fairness and natural justice.
3.The Federal Circuit Court erred by failing to consider the real risk and real chance to my liberty posed by the harm faced.
Particulars
I)The Tribunal erred in making a qualitative assessment of the serious harm faced by me, beyond a de minimus consideration of the harm that I faced.
4.The Tribunal made a legal error by making an unreasonable decision.
Particulars
I)The tribunal made an error by concluding that I did not meet the requirements under s.5J(1)(a) of the Act (tribunal decision at[49])
Neither the applicant nor the Minister filed any written submissions prior to the hearing.
The applicant did not appear at the hearing.
According to an affidavit affirmed by Ms Chloe Anne Hilary on 11 May 2017 and filed on behalf of the first respondent, the first respondent’s solicitors were informed by the Department that the applicant departed Australia on 9 May 2017. Ms Hilary states that the Department’s records indicate that the applicant does not hold a visa which would permit his re-entry into Australia, his Bridging Visa E having ceased when he left Australia.
In these circumstances, the application should be dismissed for non-attendance pursuant to r 35.33 of the Federal Court Rules 2011 (Cth).
ORDERS
(1)The application for extension of time to appeal be dismissed.
(2)The applicant pay the first respondent’s costs, to be assessed if not agreed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 24 May 2017
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