AHB15 v Minister for Immigration

[2015] FCCA 1321

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHB15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1321

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – bias– whether the Tribunal failed to put adverse information to the applicant – no jurisdictional error – application dismissed.

Legislation: 

Migration Act 1958 ss.36(2)(a), 36(2)(aa), 424, 424AA, 476, 499

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: AHB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 820 of 2015

Judgment of: Judge Street

Hearing date: 15 May 2015

Date of Last Submission: 15 May 2015

Delivered at: Sydney

Delivered on: 15 May 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr K. Eskerie
Sparke Helmore

ORDERS

1. The amended application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 820 of 2015

AHB15

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 the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 17 March 2015 affirming a decision of the delegate not to grant the applicant a protection visa.  The grounds of the amended application are as follows:

   1. The decision of the Refugee Review Tribunal is Legally Unreasonable in that:

   2. The Tribunal gave great weight to matters of little importance

   3. The Tribunal gave little weight to matters of great importance

   4. A particular error was commited in reasoning.

   5. The reasoning of the Tribunal is illogical and irrational.

   6. The decision of the Refugee Review Tribunal is void and affected by a reasonable apprehension of bias. The Tribunal did not bring an impartial mind to the resolution of the review of my application for protection.

   7. The Tribunal already made up its mind to affirm the decision under review before the hearing.

2. The applicant was found to be a citizen of Fiji.  The applicant arrived in Australia on 16 December 2009 as the holder of a visa and departed on 18 February 2010.  He returned on 23 September 2010 as the holder of a visitor visa and applied for protection on 4 March 2011. 

3. The delegate refused the application on 27 May 2011.  On 22 March 2013, the applicant lodged a further application for protection visa consistent with the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 in respect of the criteria under s.36(2)(aa).

4. The applicant was invited to appear before the Tribunal at a hearing on 19 February 2015, which was postponed at the applicant’s request to 2 March 2015, at which the applicant appeared to give evidence and present arguments as well as certain family members, and the applicant was assisted by an interpreter.

5. It is clear that at that hearing, the Tribunal put to the applicant clear particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review as is apparent from para.8 of the Tribunal’s reasons, as well as paras.25, 31, 34, 36, 38, 39. The Tribunal identified the relevant law and the ministerial direction to which it was required to and did have regard under s.499. The Tribunal carefully identified the relevant claims confined to the issue of s.36(2)(aa) and the applicant’s evidence.

6. This is a case where the Tribunal found that the applicant was not a credible witness.  The Tribunal found that the applicant had fabricated most of their claims for the purpose of obtaining a protection visa.  The Tribunal’s reasons carefully set out the concerns in respect of the credibility and veracity of the applicant and that claims had changed over time, including the new claims and a number of inconsistencies and contradictions in the claims.  Materially, the Tribunal found:

   45.    The Tribunal raised this inconsistency in the evidence with the applicant at the hearing, pursuant to s.424AA of the Act. The applicant provided a written response in which she stated “Further, there were witnesses that gave credible relevant evidence regarding the trauma and abuse and torture that I have experienced in the past at the hands of my ex-husband and the authorities were not able to protect or stop him from torturing and abusing me on a consistent basis”. Her response does not address the inconsistency in the evidence. It is also inconsistent with her evidence to the Tribunal that she never reported domestic violence to the police. The Tribunal does not accept the evidence given by Mr [N] or Mrs [N] in relation to alleged threats made by the applicant’s husband at the funeral as their evidence is inconsistent and implausible. The witness, Mr [T], gave evidence that he has lived in Australia for 30 years and has never met the applicant’s husband. He stated that he was told that the applicant suffered during her marriage and was threatened by her husband.

7. The Tribunal took into account the applicant’s medical state, but relevantly found:

   26.    … Even if the Tribunal were to accept that she has a disability, it does not explain the inconsistencies and contradictions in her evidence. The Tribunal does not accept the explanation provided by the applicant.

8. The Tribunal noted that the applicant said she had never been working in Australia and that the department had located her working on a farm and she was detained as living unlawfully in Australia. 

9. This was a case where the Tribunal identified and placed little weight on the applicant’s evidence and, relevantly, the Tribunal found:

   49. The Tribunal does not accept that the applicant and/or her husband own or owned a truck. It follows that the Tribunal does not accept any of the applicant’s claims in relation to the truck or the Fijian army/military. The Tribunal does not accept that the applicant ever was, or is, of adverse interest to the Fijian army/military. The Tribunal does not accept that the Fijian army/military will detain her, torture her or kill her if she returns to Fiji now or in the reasonably foreseeable future.

   50. The Tribunal accepts that the applicant married [E] on 29 June 1999 and that they have separated. The Tribunal accepts that the applicant has applied for a divorce. The Tribunal accepts that they have two children. The Tribunal does not accept that her husband was or is an army officer or that his family are in the army. The Tribunal accepts that there might have been some domestic violence during their marriage but does not accept any of the claims made by the applicant in her written statement lodged on 15 September 2013 other than her daughter’s date of birth. The Tribunal does not accept that the applicant ever reported domestic violence to the police.

   51. The Tribunal accepts that the applicant’s husband has a new partner. The Tribunal does not accept that he is interested in having an ongoing relationship with her if she returns to Fiji now or in the foreseeable future. The Tribunal does not accept that the applicant’s husband has threatened to harm her if she returns to Fiji. The Tribunal does not accept that the applicant’s husband or any member of his family will detain, torture or kill the applicant if she returns to Fiji now or in the reasonably foreseeable future. The Tribunal does not accept that the applicant fears harm from her husband if she returns to Fiji now or in the reasonably foreseeable future.

   52. Having considered all of the claims, individually and cumulatively, the Tribunal is not satisfied, for the reasons given above, that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Fiji now or in the reasonably foreseeable future.    

   53. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa).

10. The findings of the Tribunal in respect of credit were clearly open.  The adverse findings cannot be said to lack an evident and intelligible justification and there is no substance in the assertion that the decision of the Tribunal was unreasonable or that the Tribunal failed to conduct a proper review. 

11. I am clearly satisfied that the Tribunal complied with its statutory obligations and put to the applicant the dispositive issues, and that the applicant had a genuine hearing.  There is no substance in relation to ground 1 of the application.

12. In relation to ground 2, this does not give rise to any jurisdictional error.  The weight to be given to evidence was a matter for the Tribunal.

13. Ground 3 does not give rise to any jurisdiction error.  The weight to be given to evidence was a matter for the Tribunal.

14. Ground 4 is a generalised assertion that does not identify any jurisdictional error.

15. Ground 5 is a generalised assertion and again fails to give rise to any jurisdictional error. 

16. Given the applicant’s migration history, the adverse findings made by the Tribunal were clearly open.  The adverse findings made by the Tribunal do not give rise to a ground to support any allegation of bias.  A reasonable person would not believe that the Tribunal might not bring an impartial and independent mind to the determination of the matter on its merits by reason of the adverse findings on the issue of credit.  There is no substance in relation to ground 6. 

17. The assertion of a predetermination by the Tribunal is contrary to the carefully reasoned decision of the Tribunal and there is no substance in the allegation that the Tribunal failed to bring an impartial and independent mind to the determination of the matter on its merits. 

18. To the extent the applicant’s written outline of submissions go beyond the grounds identified in the application, they fail to identify any jurisdictional error. I am satisfied that the Tribunal complied with its obligations under s.424 and 424A of the Migration Act. 

19. Further, I am satisfied this was not a case where the Tribunal failed to properly conduct its review and there was no obligation on the Tribunal to make further inquiry in relation to the medical state of the application.  That was not a matter of a kind in which there was a sufficient link to impose a duty upon the Tribunal to take any such step.

20. The amended application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 May 2015