Aih18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1036

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AIH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1036

File number(s):

SYG 202 of 2018

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

16 November 2023

Catchwords:

 MIGRATION – Administrative Appeals Tribunal – whether the Tribunal erred in its decision – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1968 (Cth) ss 36(2)(a), 36(2)(aa), 36(2B), 424A, 425,

Cases cited:

ARG v Minister for Immigration and Border Protection [2016] FCAFC 174

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Fox v Percy [2003] 214 CLR 118

Minister for Immigration v Li (Li) (2013) 249 CLR 332

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZBYR v Minister or Immigration and Citizenship (2007) 147 CLR 297

Division:

Division 2 General Federal Law

Number of paragraphs:

45

Date of last submission/s:

13 November 2023

Date of hearing:

13 November 2023

Place:

Parramatta

Solicitor for the Applicant

The Applicant appeared in person

Solicitor for the Respondent

Ms Meaney appeared on behalf of the First Respondent

ORDERS

SYG 202 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AIH18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	16 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The Application is dismissed.

2.The Applicant is to pay the First Respondents costs, fixed in the sum of $6,000.00

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE D HUMPHREYS

INTRODUCTION

1. The applicant is a citizen of Fiji. He arrived in Australia in December 2014 as the holder of a Tourist (subclass FA-600) visa.

2. On 15 October 2015, the applicant applied for a Protection (subclass 866) visa (form 866) (“Protection visa”).

3. On 12 January 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa.

4. On 4 February 2016, the applicant lodged an application for merits review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa in a decision dated 5 January 2018.

5. The applicants now seek judicial review of the Tribunal’s decision in this Court. For the reasons set out below the application must be dismissed. 

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

6. Paragraph 1 to 2 of the Tribunal’s decision record outlines the background to the applicant’s Protection visa application. Paragraph 3 to 7 describes the legislative criteria for the grant of a Protection visa. At paragraph 8, the Tribunal states that, in accordance with Ministerial Direction No 56, it took into account the Refugee Law Guidelines and Complimentary Protection Guidelines prepared by the Department of Homes Affairs and country information assessments prepared by the Department for Foreign Affairs and Trade.

7. At paragraph 9 to 13, the Tribunal summarised the applicant’s protections claims in relation to him being fearful of his safety in Fiji, as people were demanding money from him and threatening to cause serious harm to him and his house.

8. The Tribunal accepted the applicant was a citizen of Fiji.

9. At paragraph 9 to 13, the Tribunal reproduced the applicant’s protection claims, which are summarised as follows:

   ·The applicant stated that he studied refrigeration and air conditioning at Fiji National University in Lautoka in 2012 and his occupation is/was a refrigeration technician.

   ·The applicant’s brother and sister reside in New Zealand. The applicant was refused a visa for New Zealand due to “financial difficulties”.

   ·The applicant left Fiji because he was afraid of people who were after him, demanding money.

   ·The applicant stated on one occasion that he was attacked and punched by one of these people for money. Furthermore, those around him told him to not report this to police or else the group of people will burn his house down.

   ·The applicant moved to Tavua in Fiji to escape the harm, but the group of people continued to follow him. He was concerned the police would not help him and he was unable to relocate within the country as he believed the group of people will keep following him.

   ·The applicant claims the reason why people are making threats against him is because they are not happy with the success of his small business.

   ·On one occasion, the group of people came to where the applicant lived alone and proceeded to throw stones on his house and demanded money from him.

   ·When the applicant returned to Fiji after taking a holiday in Australia for three months, he was threatened again. It was then that he decided to apply for protection here in Australia.

   ·There is a letter from the applicant’s mother dated 5 October 2015, in support of her son and explained the safety issues her son faces in Fiji, requesting that he be granted a Protection visa.

10. At paragraphs 14 to 22, the Tribunal summarised the applicant’s interview with the delegate on 12 January 2016 as follows:

    ·The applicant was happy in Fiji until he was having these problems, originally, he had no intention to stay in Australia. The applicant’s mother is worried about his safety and stated that back in 2012 when the applicant first started his company, he was earning a lot of money and hosting parties. Flowing from this, people demanded money and contacted him on the phone and harassed him.

    ·The applicant stated that he has two maternal uncles and three maternal aunties that live in Ba, Fiji and one paternal aunt and uncle that live in Tavua, Fiji. The applicant’s father passed away. In Ba he lives alone but in Tavua he lives with an uncle.

    ·The applicant noted that his business is closed for the moment and the building was given back to the owner, but he would travel half an hour each day to his business. After returning to Fiji from Australia for the first time the situation continued and was worse, that is when the applicant decided to apply for the protection visa.

    ·On one occasion in October 2012, the applicant gave 50 Fijian dollars to an individual who had harassed him in a shop.

    ·The applicant recounted events that occurred in 2012, including that he was punched while walking on the street, beer bottles were being thrown at his house, he received threats of being burnt in his house. After the occurrence of these incidents, he did not seek any medical assistance or report the events to the police.

    ·The applicant told the delegate of an event that occurred where a bank manager who lived alone was killed by the same people. These people are now in gaol, but there are still individuals who are making threats towards him.

    ·The applicant cannot move to Tavua because of his business and the long travel distance to and from work.

    ·He agreed with the delegate that he had not told the police about these safety issues he has raised.

    ·The delegate asked why he has not moved to Suva or Nadi to escape the harassment, the applicant agreed he could do that but it is too expensive and he feels that people will follow him to Suva.

11. At paragraphs 23 to 32, the Tribunal summarised the applicant’s submissions received on 2 November 2017 as follows:

    ·The applicant is Fijian-Indian and lives alone in Fiji. He last resided in Lautoka, Fiji where he runs his business.

    ·The applicant was subjected to harassment from men in his village because he was a businessman and of Fijian-Indian background. He fears continued assaults if he returns to Fiji.

    ·The submissions included country information that Fijian-Indians may be discriminated against in Fiji.

    ·He did not speak to police protections as threats were made to burn down his house with him inside. These threats continued after 2012 until the second time he arrived in Australia.

    ·The applicant swallowed kerosene and attempted to commit suicide due to being mentally distressed in Fiji.

    ·He also states that it would be unreasonable to expect him to return to Fiji if he would continue to receive threats, which would cause his mental health to deteriorate and make him vulnerable.

    ·The reason for the delay in submitting an application for protection was due to him hoping the situation would “simmer down”, but it only worsened when he returned.

    ·Three documents were attached to the submissions including the registrations and insurance of the applicant’s air conditioning/refrigeration business, Ipro Cooling Solutions and a copy of a Statutory Declaration of the applicant declared on 9 October 2017 (“Statutory Declaration”).

12. At paragraphs 33 to 37, the Tribunal outlined the applicant’s statutory declaration in support of his Application for Review. The applicant declared his background and made claims previously contained in his protection visa application. He further adds an incident whereby he drank kerosene on purpose attempting to commit suicide and was hospitalised for one night. The applicant also stated that October 2012 was the first time where a few native Fijian village boys demanded money from him and he gave them 50 Fijian dollars. When he returned to Fiji (the first time), he thought it would be safer and better on his return, but he states it worsened. The applicant states if he is forced to relocate to Fiji, it would have significant consequences on his mental health.

13. At paragraph 38 to 43, the Tribunal reproduced much of the applicant’s evidence given at the Tribunal hearing. The applicant clarified that he was never assaulted in Fiji. Following the hearing the Tribunal received a copy of a document headed “Ba Police Station” dated 5 February 2016. This document stated that an unknown person broke into his house “sometime last week when he was away overseas”.

14. Paragraph 44 onwards deal with the Tribunal’s findings and reasons for its decision. The Tribunal accepts that there is independent country information available that indicates that a Fijian-Indian individual may suffer harassment as a result of their ethnicity.

15. The Tribunal found in paragraph 46, that the applicant produced his Fijian passport and was granted a tourist visa for Australia on 22 December 2014 valid until 18 November 2015.

16. At paragraph 47, the Tribunal accepted the applicant’s evidence at the Tribunal hearing of where his family members currently live.

17. The Tribunal found that the applicant did set up his own air conditioning and refrigeration business sometime in late August - early September of 2012, as evidence was produced at the Tribunal hearing of a copy of a document being an application and certificate of registration of the business.

18. At paragraph 50 and 57, the Tribunal found the evidence given by the applicant to not be truthful and the applicant’s claim of harassment and threats in his country resulting in him being unable to return to his country was not accepted by the Tribunal.

19. At paragraph 51, the Tribunal noted inconsistences with the dates the applicant claims the harassment incidents first arose. When asked at the Tribunal hearing of the dates he was first harassed, the applicant’s evidence was 2014 “the same year I applied for the tourist visa to come to Australia”. The applicant previously claimed in his statutory declaration that the problem first arose in 2012. The applicant also stated at the Tribunal hearing that the incident, whereby someone demanded 50 Fijian dollars from him in the shop, happened in 2013 or 2014. The applicant had also previously claimed in his statutory declaration mentioned above, that this incident had occurred in 2012.

20. At paragraph 52, the Tribunal understood the applicant’s claim included in December 2014 the applicant was harassed several times over the phone for money and that these people got his number through his work. When the Tribunal questioned why he didn’t block the phone number of the caller or change his work phone number, the applicant stated that the phone number was famous and that the callers called from various phone numbers.

21. In the Tribunals view, if the applicant’s evidence of such serious incidents that happened in Fiji were true, he would not have returned to Fiji after he left the country the first time and came to Australia.

22. At paragraph 58, the Tribunal was not persuaded and did not accept that the applicant had mental health issues and attempted to committed suicide in 2015 by drinking kerosene due to the harassment and threats he had suffered subsequently affected his mental health. The applicant stated he was admitted to Ba Mission Hospital, saw a private doctor and was on a drip, and mentioned he could get a medical report about this incident. The applicant first raised this incident in his statutory declaration, when the Tribunal questioned why he did not raise this earlier in his claim he explained that he did not think it was useful information for the Protection visa application. The Tribunal allowed three weeks after the hearing for the applicant to gather and provide further evidence in support of his hospital treatment received, and no further evidence was provided to the Tribunal.

23. The Tribunal stated in paragraph 60 that it did not believe to be true that the applicants home in Fiji was broken into in 2016. This incident was not stated in his statutory declaration. A copy of a document was produced by the applicant dated 5 February 2016 from Ba Police Station in relation to reporting the break in at his house, the Tribunal found it to not be reliable evidence as the applicant previously stated that he did not call police about the break in at his house. According to DFAT Country Information Report Fiji, September 2017, paragraph 5.47 to 49, indicates that document fraud is prevalent in Fiji.

24. At paragraph 61, the Tribunal places no weight on the letter from the applicant’s mother as she refers to the applicant facing “a lot of problems” in Fiji but does not specify what those problems are.

25. The Tribunal ultimately found at paragraphs 62 to 66, that it is not satisfied that Australia has an obligation to protect the applicant by granting the protection visa and that he does not have genuine fear upon a real chance of persecution if he returns to Fiji. There is no substantial ground for believing that there will be foreseeable consequences of his if removed from Australia and returned to Fiji. The Tribunal further notes that the applicant does not meet the refugee criterion outlined in s 36(2).

    GROUNDS OF JUDICIAL REVIEW

26. The applicant’s grounds of judicial review are contained within the Amended Initiating Application filed on 19 April 2018. They are reproduced as they appear in the application:

    1. The Tribunal erred in the manner in which it applied Section 36 of the Migration Act 1958 and s5J(1) and ss5L-5L of the Migration Act 1958

    Particulars

    •Paragraph 9 to 13, the Tribunal summarised the applicant’s protections claims The Tribunal member failed to take into consideration that I was a member of a particular social group. The very strong and significant elements of intention, attitude, motivation and the constant harassment, extortion of money, deprivation of life and mental anguish that followed over prolonged period of time by persecutors were circumstances that were ignored by the Tribunal member. These circumstances constituted a constructive failure to exercise jurisdiction and a denial of procedural fairness amounting to jurisdictional error. (CB 134 – 140).

    2.   The Tribunal applied the wrong test in failing to consider my claim for protection visa that arose on the materials before the Tribunal with respect to my claims for protection visa under s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth).

    Particulars

    •(i) I refer to and repeat particulars to Ground 1.

    •(ii) By purportedly disposing of this claim on the basis that because I was not a member of a particular social group that was targeted, persecuted and would suffer a real and significant harm as defined by both ss36(2A)(a) and s 36(2A)(d) of the Migration Act 1958 (Cth)

    3.   State Failure to provide Protection and Internal Relocation

    The Tribunal’s failure to consider my risk of relocation to another part of Fiji that arose on the materials before the Tribunal as required by Section 36(2B)(a) of the Migration Act 1958. This has led to bias, denial of procedural fairness and unreasonableness giving rise to jurisdictional error.

    Particulars

    •I refer to Page 135(CB) and para 12 of the Tribunal’s decision. In it I had claimed emphatically that I was followed everywhere and threatened by the persecutors not to report to the Police. Nonetheless I lodged a Police report. It was never actioned and there was no hope of any justice from the state. Likewise the Tribunal member failed to consider that I have arbitrarily deprived of enjoyment of life in Fiji as a result of the sustained actions of the persecutors who had made my life a living hell. I was traumatised and anguish was so great that I decided to consumer kerosene to end my life.

    THE APPLICANT’S SUBMISSION

27. The applicant appeared before the Court unrepresented. The Court was satisfied he did not need the assistance of an Interpreter and was able to participate fully in the proceedings. The Court confirmed that the applicant had received a copy of the relevant Court book and the first respondent’s written submissions.

28. At the commencement of the hearing the with Court explained to the applicant it was conducting judicial review, not merits review and the difference between the two types of review. The Court also explained how the hearing would be conducted.

29. The applicant was supplied with a pen and paper so he could take notes if he wished to during the course of the hearing. Despite Court orders, no written submissions were filed by the applicant in support of his application. The applicant told the Court that he was concerned that the Tribunal failed to consider the issue of relocation within Fiji.

30. At the conclusion of the first respondent’s oral submissions, the applicant was asked if he had anything in reply. He stated ‘no’.

    THE FIRST RESPONDENT’S SUBMISSIONS

31. In relation to Grounds 1 and 2, the first respondent submitted that the applicant alleged the Tribunal erred in its application of s 36(2)(A) and s 36(2)(aa) by failing to take into account that the applicant was the member of a particular social group in failing to consider the constant harassment, extortion of money and deprivation of life experience by the applicant.

1. It was submitted contrary to these complaints, the Tribunal expressly consider the applicants claim to face harm as a Fijian-Indian businessman, particularly at paragraphs 24, 33 and 44.  The Tribunal rejected the applicant’s claims in their entirety on the basis that it was not satisfied they were credible.  In circumstances where the Tribunal rejected the applicant’s claims based on adverse credibility findings, the Tribunal was not required to separately consider whether the applicant was in fact a member of a particular social group.

2. Gound 3 contends that the Tribunal failed to consider the applicants “risk of relocation” to another part of Fiji which led to “bias, denial of procedural fairness and unreasonableness”.  The particulars to this ground assert the applicant emphatically claimed he was followed everywhere, threatened by police and the Tribunal failed to consider whether he had been arbitrarily deprived of “enjoyment of life” in Fiji as a result of the actions of his persecutors.

3. This ground misconceived the basis of the Tribunal’s decision because, in circumstances where the Tribunal did not accept that the applicant faced a real risk of significant harm for any the reasons claimed, the question in s 36(2B) of the Act concerning whether it would be reasonable for the applicant to relocate did not arise.  The applicant’s statement that he emphatically claimed he was followed everywhere is nothing more than a restatement of the applicant’s protection claims and an attempt to invite the Court to engage in merits review.

4. The remaining complaints of bias, a denial of procedural fairness and legal unreasonableness in this ground cannot be made out.  It is a rare case in which a court will find a decision-maker has exhibited bias a prejudgement based on a decision-maker’s reasons alone: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. There is nothing in the Tribunal’s conduct in inviting the applicant to hearing, providing him with an opportunity after the hearing to submit further information that supports a finding that the Tribunal had formed a final view about the matter before it and that its mind was not open to persuasion in the course of the review. The allegation of bias cannot be made out.

5. Secondly, the applicant has not explained any particularity how it is alleged he was denied procedural fairness.  The Tribunal complied with its procedural obligations in Part 7 of the Act. The applicant was invited to attend a hearing before the Tribunal. He availed himself the opportunity to do so. The Tribunal’s decision confirms the Tribunal discussed with the applicant at length the inconsistencies in the claims such that it follows that the Tribunal complied with s 425 of the Act.  The applicant was given a real and meaningful opportunity to give evidence and present arguments on the dispositive issue of the review, namely the credibility of his claims: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. There was no information before the Tribunal that enlivened its obligations under s 424A of the Act as that section does not extend to the existence of doubts, inconsistencies, the absence of evidence or the Tribunal’s subjective appraisals of the evidence before it: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].

   IS THERE JURSDICTIONAL ERROR IN THE TRIBUNAL’S DECISION?

6. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review was described in this manner:

   … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

7. Grounds 1 and 2 allege a failure by the Tribunal to properly apply s 36(2)(a) and (aa) by failing to take into account the applicant was a member of a particular social group and failing to consider the constant harassment, extortion of money and deprivation of life experience by the applicant.

8. This ground has no merit. The Court is satisfied that the Tribunal’ decision considered all of the relevant claims made by the applicant but rejected them with for the reasons set out in the decision record, particularly at paragraphs  50, 51, 55, 56 and 57. The Court is satisfied that these factual findings were open to the Tribunal on the evidence and materials before it and for the reasons it gave, including the adverse credibility findings.  The findings were not tainted by any failure to afford procedural fairness or reaching a finding without a logical or probative basis, or unreasonableness: ARG v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83]. Further, it is well established the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness Fox v Percy [2003] 214 CLR 118 at [41].

9. Ground three is a claim that the Tribunal failed to consider the applicants risk of relocation to another part of Fiji which led to bias, denial of procedural fairness and unreasonableness.  The particulars relate to the fact the applicant claims he lodged a police report, and it was never actioned.  Further, he was threatened by police and followed everywhere denied enjoyment of life.

10. This ground also has no merit.  As noted by the respondent, this ground misconceived the basis the Tribunal’s decision as the tribunal found the applicant did not face a real risk of significant harm for any of the reasons claimed if he were to be returned to Fiji.  In light of the confident adverse findings that it made against the applicant, that he did not have a well-founded fear of persecution, it was unnecessary for the tribunal to consider relocation: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535. The claim of bias is serious and requires evidence, such as a transcript of the tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of the decision. Similarly, the mere fact that the tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself suggested the decision-maker approach the task other than with a mind open to persuasion: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]. In my view, nothing in the decision record indicates the tribunal with was not open to persuasion or had formed a final view about the matter prior to the hearing.

11. In relation to the claim that the applicant was denied procedural fairness, no particulars are provided as to how it is alleged he was denied fairness.  The Court is satisfied that the Tribunal complied with all of its procedural fairness obligations set out in Part 7 of the Act.

    As to the claim of legal unreasonableness, unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li (Li) (2013) 249 CLR 332 at [28], or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].

12. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:

    The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power.  The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

13. A fair reading of the Tribunal’s decision does not indicate that the decision lacks an evident and intelligible justification.  The Tribunal made findings of fact that were open to it on the evidence before it and for the reasons it gave.  There is nothing illogical or irrational at the conclusions the tribunal reached in the circumstances of the business of this particular case.  Ground 3 has no merit.

    CONCLUSION

14. As none of the grounds of judicial review have merit, the application must be dismissed.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       16 November 2023