AHL16 v Minister for Immigration
[2016] FCCA 3300
•21 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHL16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3300 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa – allegation of jurisdictional error – unparticularised grounds – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: CLI15 v Minister for Immigration [2016] FCA 1223 Minister for Immigration v SZGUR (2011) 241 CLR 594 |
| Applicant: | AHL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 298 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 23 May 2016 |
| Date of Last Submission: | 23 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms C Saunders. |
| Solicitors for the Respondents: | DLA Piper. |
THE ORDERS OF THE COURT ARE AS FOLLOWS:-
The application filed in this Court on 10 February 2016 is dismissed with costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 298 of 2016
| AHL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a male citizen of Slovenia aged 54 years, having been born on 11 February 1962.
By application filed in this Court on 10 February 2016 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 8 January 2016 affirming a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 12 October 2015 refusing to grant the Applicant a Protection (Class XA) visa (Protection visa).
Criteria for a Protection visa
The relevant criteria and law concerning the grant of a Protection visa were recently and conveniently summarised by Burley J in the Federal Court of Australia in CLI15 v Minister for Immigration [2016] FCA 1223 at [34]-[41] as follows:
[34]The Act provides for different classes of visa, one of which is a protection visa under section 36. A protection visa may be granted if the criteria in subsection 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (Refugee Convention). Article 1A(2) of the Refugee Convention provides, that a refugee is a person who, relevantly:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[35]A fear of harm is “well-founded” for the purpose of subsection 36(2)(a) of the Act when there is a “real substantial basis for it”, even where the chance of the object of the fear eventuating is less than 50 per cent. A fear of harm is not “well-founded” if it is merely assumed or speculative; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at [48] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
[36]Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is:
A non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ...
[37] A person who is not a citizen of Australia is a “non-citizen”.
[38]Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because he or she is not a refugee may nevertheless be entitled to protection in Australia under the obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Protection Rights 1966; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at [70] and [100] (Lander and Gordon JJ), and [300] and [313] (Besanko and Jagot JJ).
[39]The proper test is whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: SZQRB at [242] – [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ agreed at [297] and Flick J at [342]).
[40]Subsection 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm as being if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.[41]The phrase “significant harm” does not bear its ordinary and natural meanings. Its meaning is limited to that defined by section 36(2A); SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 (SZTMC) at [10] (Perry J). It is apparent from this definition that a requirement that a person suffer significant harm imposes a high threshold; SZTMC at [10].
General Background
The Applicant arrived in Australia on 5 March 2012 holding a Slovenian passport and on a Tourist visa.
He successfully applied for a Student visa onshore, which was granted on 19 April 2012 and ceased on 2 December 2012.
Then on 30 December 2012 he applied for another Student visa and meanwhile was granted a Bridging visa.
He suffered a work injury in October 2013, withdrew his application for a Student visa on 8 May 2014 and applied instead for a Medical Treatment visa, which was refused by a Delegate on 14 May 2014. This refusal was affirmed by the Migration Review Tribunal on review on or about 22 October 2014.
He was admitted to a mental health facility from 9 January 2015 to 29 January 2015 after a psychotic episode and was detained by immigration authorities on 5 March 2015.
Then he applied for a bridging visa on 16 March 2015, which was refused. He sought review of this refusal unsuccessfully in the Migration Review Tribunal and the Federal Court of Australia, with the adverse decision of the Federal Court delivered on 17 June 2015.
Subsequently, on 30 July 2015 he applied for a Protection visa.
Decision of the Delegate
The Applicant claimed before the Delegate that after finishing school he worked as a plumber and boilermaker and then bought a small truck and started working as a driver in Berlin in Germany and became involved in smuggling stolen cars.
He was married and had a son to that marriage born in 1987 and another son as stated by the Delegate apparently born in 1980.
In 1991 he was convicted of illegal car trafficking and he served four and a half years in prison in Slovenia from 2000 to 2004 and eight months in Italy in 2006 for car smuggling.
The Applicant started having problems with his criminal associates and he claimed that when he was on a trip to Italy in 2008 they came to his home in Slovenia to kill his family and himself for failing to pay them money. Fortunately neither he nor his wife were at home but the intruders destroyed all the furniture in the house.
In 2011 an unknown person attacked the Applicant in Ljubljana, Slovenia and hit him in the face. In February 2012, people looking like secret service agents or security were taking photos of his house and wife which caused great concern to his family.
The Applicant then obtained a new passport and decided that Australia would be a good place to go to for safety. He divorced his wife before leaving Slovenia so as to divert adverse attention from her. He asserted that if he had to return to Slovenia or elsewhere in Europe he would be exposed to the same risk of being physically injured or killed by his persecutors, who are connected with Serbia’s state security.
He further claimed that his persecutors are criminals who know him well and are angry and jealous because he stopped his involvement in their illegal schemes. Since 2002 they have regularly caused damage to his property and machines.
The Delegate put to him that as Slovenia is a member of the European Union, the Applicant would have the right to enter and reside in any other EU member state. The Applicant agreed that he could live in any EU country (with the exception of Italy) but did not want to return to Europe, because if he did, he would have no other choice but to get involved again in criminal car smuggling, as he has no experience in any other area.
By his Decision Record of 12 October 2015 the Delegate refused to grant the Applicant a Protection visa as he was not satisfied that Australia had protection obligations to him under s.36(2)(a) or s36(2)(aa) of the Migration Act 1958 (Cth) (Act).
The Delegate first found that the Applicant as a citizen of a European Union member country had a current right to enter and reside in a number of European countries and therefore s.36(3) of the Act applied so that Australia was taken not to have protection obligations in respect of him and s.36(3) of the Act was not excluded by s.36(4), (5) or (5A) of the Act. The Delegate also concluded that the Applicant was not facing serious or significant harm in Slovenia or anywhere else in Europe.
Application for Review to the Tribunal
The Applicant applied to the Tribunal for review of the Delegate’s decision on 19 October 2015. He attended a hearing before the Tribunal with the assistance of an interpreter on 2 December 2015.
At the hearing, the Applicant gave evidence about his migration history and told the Tribunal that his wife would retire in 2016 and that they planned to live six months in Australia and six months in Slovenia. He said that he could go back to Slovenia but did not want to do so, and had no future in Europe. Later at the hearing he said that he had no problem with Slovenia but did have a problem with the Netherlands and France. He stated that in Slovenia he and his family were respected and that one of his sons is a doctor and the other a pilot.
In the result, the Tribunal found at [58] of its Decision Record that the Applicant had given confusing and contradictory evidence about his protection claims such as, for example, his claims that he can return to Slovenia and that he cannot, and then, that he is a respected person in Slovenia but that he is also a criminal.
The Tribunal found that the Applicant’s lack of detailed evidence about the harm allegedly suffered by his family and himself and their apparent prosperity in the several years before the Applicant left Slovenia was inconsistent with his claims that former criminal associates or the secret police would harm him if he returned. The Tribunal did not accept that the Applicant’s family was at risk of harm.
The Tribunal also took into account that the Applicant did not claim protection until after having been detained by immigration authorities subsequent to the various other visa applications made by him and summarised at [4]-[10] above. It stated at [70] of its Decision Record that the delay in making the application for protection reinforced its finding that the Applicant’s claims for protection had been fabricated. I note that it is permissible as a rational consideration for the Tribunal to take into account a delay in making a Protection visa application in determining whether there was a genuine fear of serious or significant harm in the applicants’ country of origin or whether the delay is inconsistent with the existence of such a fear: WZAVL v Minister for Immigration [2016] FCA 334 at [44(6)] per Farrell J.
The Tribunal did not accept the Applicant’s claims for protection were genuine but rather found that they had been fabricated. Therefore at [75] it stated that it did not accept that there was a real chance that if the Applicant returned to Slovenia he would be persecuted for a Refugee Convention reason or that there was a real risk that he would suffer significant harm and it affirmed the decision of the Delegate not to grant the Applicant a Protection visa.
Grounds of Attack on Tribunal Decision in this Court
The Grounds appearing in the Application filed on 10 February 2016 are as follows:-
1.The Tribunal was in error because it had made the decision in denial of procedural fairness and denial of natural justice to me.
2.The Tribunal had failed to take into account relevant materials and considerations.
3.The Tribunal had constructively failed to exercise jurisdiction.
4.The Tribunal had failed to ask relevant question (sic) prescribed by law and its decision was beyond power.
At the hearing, I gave leave to the Applicant to rely on two further Grounds (which appeared as [17] and [20] respectively of his affidavit affirmed on 7 February 2016), namely:-
5. The Tribunal failed to make relevant enquiries into critical facts the existence of which was easily ascertained under the Migration Regulations.
6. That the Tribunal and 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.
Nevertheless, the Applicant was unable to make any meaningful oral submissions in support of his various Grounds.
Consideration
Ground 1
This Ground is not particularised in any way and there is no evidence whatsoever that the Applicant was denied procedural fairness or acted in breach of natural justice. The Applicant did not tender any transcript of the Tribunal hearing in support of this Ground, nor is there anything else on the face of the Decision Record of the Tribunal which would support this Ground, which has no substance and is rejected.
Ground 2
This Ground is also completely unparticularised. In so far as it might be thought to allege that the Tribunal failed to take into account the Applicant’s own documentary evidence, it cannot be made out. At [18] of its Decision Record the Tribunal referred to the Applicant’s handwritten statement forming part of his Protection visa application and responsive to sections 90 to 97 thereof, and at [65] the Tribunal referred to the Applicant having provided a copy dated 29 January 2015 of his Transfer/Discharge Summary from the mental health facility. At [58] of its Decision Record the Tribunal accepted that the Applicant had suffered a psychotic incident and continued to take medication. Whilst it did not expressly refer to the Medication Summary provided to the Tribunal by the Applicant on 15 December 2015, it accepted at [16] and [58] of its Decision Record that he continued to take medication and thereby implicitly accepted the contents of the Medication Summary. In my view there can be no reasonable suggestion that the Tribunal failed to consider documents relied on by the Applicant which were cogent and corroborative of his claim.
Nothing in the reasons of the Tribunal’s Decision Record indicates that the Tribunal failed to take into account relevant materials and considerations. The Applicant bears the onus of establishing that the Tribunal committed jurisdictional error by not having regard to significant evidence tendered by him. He has failed to establish any basis for drawing the inference that jurisdictional error of this nature was committed by the Tribunal: Minister for Immigration v SZGUR (2011) 241 CLR 594 at 616 [67] per Gummow J and agreed in by Heydon J and Crennan J.
Grounds 3 and 4
These are completely unparticularised Grounds which were not amplified by the Applicant at the hearing and there is no evidence to suggest that the Tribunal failed in the respects complained of by the Applicant. They are incapable of establishing any jurisdictional error on the part of the Tribunal.
Ground 5
This Ground is again completely unparticularised. No attempt has been made by the Applicant to identify the “relevant inquiries into critical facts” which it is said the Tribunal failed to make. There is no requirement for the Tribunal to make out the Applicant’s case for him: Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-170 per Wilcox J. Generally speaking it is not appropriate to speak of the Tribunal being under a duty to inquire, unless there is a failure to make an obvious inquiry about a critical fact, the existence of which could easily be ascertained such that there was a failure by the Tribunal to carry out its essential role of review: Minister for Immigration v SZIAI (2009) 259 ALR 429 at 436 [25]. The judgment of Dodds-Streeton J in SZNZH v Minister for Immigration [2010] FCA 1286 at [36] (considering an appeal from the Federal Magistrates Court) is here apposite:-
[36]His Honour dismissed the alleged failure to investigate the appellant’s genuine claims, observing that the appellant bore the onus of proving that he was a refugee: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12. The very limited circumstances in which failure to make enquiries by the Tribunal may constitute a “failure to review” were not present in this case: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]. The appellant had not identified to the Tribunal any enquiry about any particular aspect of his claim that he considered should have been investigated.
Ground 6
It is clear law that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into Australian municipal law: Tajjour v New South Wales (2014) 254 CLR 508 at 567 [96] per Hayne J. In this instance, aspects of the International Covenant for Civil and Political Rights and its Second Optional Protocol have been incorporated and embodied in Australian law by s.36(2)(aa), (2A), (2B) and (2C) of the Act.
This Ground fails because the Tribunal clearly did engage with s.36(2)(aa) of the Act. The Tribunal specifically referred to and set out the complementary protection criterion at [7] of its Decision Record and at [74] it stated that it had considered the complementary protection criterion embodied in s.36(2)(aa). Then at [75] it found that it did not accept that there was a real risk that the Applicant would suffer significant harm if he were to be removed from Australia. The Tribunal found that as it did not accept the Applicant’s protections claims as genuine, it was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusion
The Applicant has failed to establish jurisdictional error in relation to the decision of the Tribunal and the Application must be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 21 December 2016
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