AFX15 v Minister for Immigration

[2015] FCCA 993

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFX15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 993

Catchwords:
MIGRATION –  Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

First Applicant: AFX15

Second Applicant: AFY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 762 of 2015

Judgment of: Judge Street

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 16 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Applicant: Ms N. Senanayake
DLA Piper

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicants to pay the First Respondent’s costs fixed in the sum of $660.

The Court notes that these orders have been corrected pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 762 of 2015

AFX15

First Applicant

AFY15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 18 February 2015 affirming a decision of the delegate not to grant the applicant a Protection (class XA visa). 

2. The application identifies the following grounds:

   1. The decision of the Tribunal:

   a. Is affected by a jurisdictional error.

   b. Tribunal failed to take into account relevant matters and considered irrelevant matters.

3. The application identifies on the First Court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. 

4. The Response filed by the first respondent identifies in paragraph 2 that the grounds are not capable of establishing any jurisdictional error.  The first respondent indicated that there was no reason why the matter should not be dealt with summarily. The Court raised with the applicants that having looked at the application and after having the benefit of the whole of the decision of the Tribunal, which was marked Exhibit A, the Court was concerned as to whether or not the application failed to disclose an arguable jurisdictional error and whether the matter should be dealt with summarily.

5. I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

6. It is clear that Ground 1(a) of the application fails to identify any jurisdictional error, and equally the matter raised by Ground 1(b) fails to identify any arguable jurisdictional error.  It is clear that the Tribunal carefully addressed the applicants’ evidence and claims.  Both applicants are citizens of Fiji, and their claims were assessed against that country. 

7. The applicants applied for protection visas on 4 March 2013, which the delegate refused on 11 November 2013.  The applicants appeared before the Tribunal on 3 November 2014 to give evidence and present arguments and were assisted with an interpreter as well as being represented by their migration agent.  The Tribunal carefully addressed the applicants’ claims in relation to the Counter Revolutionary Warfare unit (CRW) and relevantly made an adverse finding that it was not satisfied the first applicant was a member of the CRW unit in Fiji and that the Tribunal did not accept in respect of the second applicant the husband’s evidence on this point at para.28. 

8. The applicants provided a supplementary submission document to the Court that sought to suggest the Tribunal failed to take into account certain material relating to the CRW role of the first applicant.  I am clearly satisfied the Tribunal took into account the material that was before the Tribunal, given the reasons of the Tribunal carefully addressing the information in relation to CRW and both applicants’ claims in that regard.  There is no substance in any of the contentions raised in the supplementary submission, and the supplementary submission fails to disclose any arguable jurisdictional error.  In substance, the supplementary submission seeks to advance an impermissible challenge to the findings of fact made by the Tribunal.  Those findings were clearly open.  Relevantly, the Tribunal found:

   23. … The Tribunal does not accept as plausible the applicant husband's explanation that the information is 1nissing because the office burned down or that the CRW records were kept separately; these are his service records which comprise all his activities in the RFMF and the certificate of discharge was issued when he left the RFMF.

   26 …. The Tribunal does not accept the applicant husband’s evidence to have been in the CRW, and the Tribunal does not consider the email from Mr [B] which repeats that evidence to give it any greater credibility.

   27. … The Tribunal finds that the absence of the information from the military records carries more weight than the information contained in the letter and the information in the letter does not fill that void.

   28. The Tribunal is not satisfied that the applicant husband was a member of the CRW unit in Fiji and the Tribunal does not accept the applicant husband’s claim on this point.

   29. Although the Tribunal is not satisfied that the applicant husband was a member of the CRW unit, this does not necessarily lead to a finding that his claims regarding his arrest and detention are not credible. It had already appeared speculative that he would be arrested and detained in 2000 for membership of the CRW unit seven years previously, after having no involvement in the mutiny.

   45. The Tribunal has considered the information email from Mr [B] on this point. The Tribunal is not satisfied that it compensates for the absence of any official documents regarding the claimed arrest and court proceedings, in light of the applicant husband's claim that he appealed his conviction and had it quashed.

   46. The Tribunal is not satisfied merely on the basis of the information contained in the email that the applicant husband undertook the legal proceedings themselves.

   47. For those reasons, the Tribunal does not accept that the applicant husband was arrested, tried or convicted as he claimed.

9. The Tribunal addressed the applicant husband’s claim in relation to being monitored, and made an adverse finding at para.52.  The Tribunal made an adverse finding in relation to the first applicant’s claims in relation to being a member of the CRW, being beaten, arrested, imprisoned and monitored in Fiji relevantly as follows:

   53. The Tribunal has not accepted the applicant husband’s claims and found that he was not of interest to the authorities in Fiji when he departed. Therefore the applicant husband does not face a real chance of persecution on the basis of these claims if he returns to Fiji now or in the reasonably foreseeable future. The applicant husband does not have a well-founded fear of persecution on this basis.

10. The Tribunal then found in relation to the first applicant husband:

    57. In light of this evidence, the Tribunal finds that there is not a real chance that the applicant husband would face any harm in Fiji following the election. He does not have a well-founded fear of persecution on the basis of the previous lack of democracy or the recent election in Fiji.

    58. The applicant husband also made references to rumours at the time that he departed Fiji that there would be a coup if Frank Bainimarama did not win the election. Frank Bainimarama did win the election and there is no suggestion of any coup in the country information. The Tribunal finds this claim to be speculative and unfounded and the applicant husband also does not have a real chance or well-founded fear of persecution on this basis.

11. The Tribunal carefully addressed the events that occurred in Australia in relation to the first applicant’s alleged fears and in particular a YouTube video and relevantly found:

    66. However, the Tribunal has not accepted that the applicant husband was a member of the CRW unit. The Tribunal has also not accepted that the applicant husband was a member of the CRW unit or that the events that he claimed took place in 2000 actually occurred. The Tribunal has not found the applicant to be credible in relation to the CRW claims or the mistreatment, arrest and detention claims and the Tribunal is also not satisfied that the applicant took part in the video to expose Frank Bainimarama or in order for people to know what he was like. The Tribunal is satisfied that the purpose of the video was to lend weight to his claims to have been a CRW member.

    67. As the Tribunal does not accept that these events occurred, the Tribunal is not satisfied that the applicant husband engaged in the conduct of participating in the interview and uploading it or allowing it to be uploaded to the Internet other than for the purpose of strengthening his claim to be a refugee. The Tribunal is satisfied that the conduct of participating in the interview and the direct consequences of that interview in uploading it or allowing it to be uploaded to the Internet activities were sufficiently linked for the Tribunal to be required to disregard both the interview and the uploading of the interview to the Internet in determining whether the applicant husband has a well-founded fear of being persecuted for a Convention reason, in accordance with s91R(3) of the Act.

12. The applicants sought to advance claims and evidence in relation to FDFM and SODELPA and participation in protests, and relevantly the Tribunal found:

    74. The applicant husband does not have a real chance of any harm on the basis of his membership of the FDFM or SODELPA or his participation in the meetings or protests in Australia. He does not have a well-founded fear of persecution on these bases.

13. The applicants sought to raise an issue of association with [SD], and relevantly the Tribunal found:

    78. There is no independent information before the Tribunal to suggest that an association with [SD] would give rise to a real chance of serious harm if the applicant husband were to return to Fiji now or in the reasonably foreseeable future.

    79. The applicant husband does not have a well-founded fear of persecution on this basis.

14. In relation to the applicant husband, the Tribunal concluded:

    80. The Tribunal has considered the applicant husband's claims individually and cumulatively. Although the Tribunal did not accept his claims regarding events prior to leaving Fiji, and the Tribunal was required to disregard the YouTube video, the Tribunal has considered the cumulative effect of the memberships of SODELPA, FDFM, and the participation in the protests in Australia, as well as the association with [SD]. The Tribunal has also considered the applicant husband's profile when combined with his wife's claims and family background. Even so, the Tribunal finds that considered cumulatively the applicant husband does not have a well-founded fear of persecution for a Convention reason and he does not meet the refugee criterion.

15. The Tribunal then turned to the issue of complementary protection in respect of the applicant husband and relevantly found:

    81. The Tribunal has not accepted the applicant husband's claims. Therefore there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.

    83. In light of the findings of fact set out above in relation to the real chance of any harm regarding this claim, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.

    89. Consequently there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband being removed from Australia to Fiji, there is a real risk that the applicant husband will suffer significant harm.

    90. In light of the findings of fact set out above in relation to the real chance of persecution regarding the applicant's participation in the protests and membership of FDFM and SODELPA and his association with [SD], the Tribunal finds that there are also not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.

    91. The Tribunal has taken into account the applicant husband's claims individually and cumulatively. Although the Tribunal did not accept his claims regarding events prior to leaving Fiji, and the Tribunal was required to disregard, the Tribunal has considered the cumulative effect of the YouTube video, memberships of SQDELPA, FDFM, and the participation in the protests in Australia, as well as the association with [SD]. The Tribunal has also considered his profile in combination with his wife's claims and family background. However, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband being removed from Australia to Fiji, there is a real risk that the applicant husband will suffer significant harm. The applicant husband does not meet the complementary protection criterion..

16. The Tribunal then proceeded to asses the claims of the second applicant wife and relevantly found:

    93. To the Tribunal, the representative submitted that the applicant wife's husband is a former member of the Fijian elite CRW unit who had suffered past harm and monitoring from the Fijian military and who had undertaken actions in Australia that he claimed put him at risk of serious or significant harm in Fiji. The Tribunal has considered these claims and has not accepted them. Therefore it has not given these claims any weight in assessing the applicant wife's claims.

    103. Although the applicant wife did not apply initially in her own right, the Tribunal accepts that they did not realise that her family's experience in Fiji might be significant. The Tribunal accepts on the basis of the photographs provided that the applicant wife has participated in protests in Australia. The applicant wife gave evidence regarding the experience of her sisters consistently with her statutory declaration and did not attempt to embellish her claims. The Tribunal accepts her claims in relation to her family's experiences. The Tribunal accepts that she had not been harmed in Fiji.

    104. … The applicant wife does not have a well-founded fear of persecution on this basis.

    108. The Tribunal finds that the applicant wife does not have a real chance of any harm on the basis of her membership of SODELPA, the FDFM her participation in the protests, meeting with Mr [Q] or other activities in Australia. She does not have a well-founded fear of persecution on these bases.

    109. The Tribunal has not accepted the applicant husband's claims in relation to his membership of the CRW and the Tribunal is not satisfied that there would be a real chance of the applicant wife facing any harm in Fiji as a result of those claims.

    110. As set out above, the Tribunal is also not satisfied that the applicant husband is of interest to the Fijian authorities due to the YouTube video or the association with [SD] and the Tribunal is not satisfied that there would be a real chance of the applicant wife facing any harm in Fiji as a result of those claims.

    111. She does not have a well-founded fear of persecution on that basis.

    112. The Tribunal has considered the applicant wife's claims individually and cumulatively; on the basis of her family profile and her own and her husband's activities in Australia. The Tribunal has also considered the applicant wife's profile when combined with her husband's profile. The Tribunal finds that the applicant wife does not have a well-founded fear of persecution for a Convention reason and she does not meet the refugee criterion.

    113. The Tribunal has found above that the applicant does not have a real chance of any harm regarding these claims. In light of those findings of fact, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant wife being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.

    114. The Tribunal has taken into account the applicant wife's claims individually and cumulatively. The Tribunal has also considered her claims and family background in combination with her husband's profile. However, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant wife being removed from Australia to Fiji, there is a real risk that she suffer significant harm. The applicant wife does not meet the complementary protection criterion.

17. It was in those circumstances that the Tribunal found the applicants were not owed a protection obligation by Australia and that the criteria under s.36(2)(a) and s.36(2)(aa) had not been satisfied by the applicants and affirmed the decision of the Tribunal. The applicants had a genuine hearing. The adverse findings by the Tribunal were clearly open. The findings cannot be said to lack an evident and intelligible justification. There is no utility in granting any adjournment, as the proceedings are clearly doomed to failure and an adjournment will only add to the costs of the parties unnecessarily and utilise limited Court time. I am clearly satisfied the proceedings are doomed to failure. I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 April 2015