AJT15 v Minister for Immigration

[2016] FCCA 2262

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJT15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2262

Catchwords:
MIGRATION – Application judicial review – “power” and “duty” of the Tribunal to make enquiries – 3 limb test – failure to make inquiry caused Tribunal to fall into jurisdictional error.

Legislation:

Migration Act 1958 (Cth) ss.36(2)(aa), 424

Cases cited:

Minister for Immigration and Citizenship & Anor v SZIAI (2009) 259 ALR 429

Applicant: AJT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: (P)MLG 697 of 2015

Judgment of: Judge McGuire

Hearing date: 19 May 2016

Date of Last Submission: 19 May 2016

Delivered at: Melbourne

Delivered on: 5 October 2016

REPRESENTATION

CounselfortheApplicant: Mr Krohn

Solicitorsfor theApplicant: Frank A. Sanna Lawyers

CounselfortheRespondents: Ms Lucas

SolicitorsfortheRespondents: Australian Government Solicitors

ORDERS

1. That the decision of the Refugee Review Tribunal made 11 March 2015 be quashed.

2. That the application be remitted to the Administrative Appeals Tribunal for hearing.

3. That the first respondent pay the applicants' costs as agreed between the parties and taxed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

(P)MLG 697 of 2015

AJT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) ("the Tribunal") made 11 March 2015 affirming a decision of the Minister's delegate to refuse the grant to the applicant of a Protection Visa.

2. The applicant appears before this Court represented by Counsel.
   The Court has the benefit of written submissions from both the applicant and the first respondent together with supplementary written submissions.

Background

1. The applicant is from Liberia. He arrived in Australia on 12 January 2012 holding a Business Visa (Subclass 456). He applied for the Protection Visa on 6 February 2012. The applicant says that he worked for an organisation in Liberia being "Christian Council of the Mano River Union" ("CCMRU"). This is a non-government organisation based in Liberia involved with the training and facilitating of

   
   

   ex­combatants and mercenaries who had previously fought in wars and civil wars in Liberia and the Ivory Coast.

2. The applicant claims that he was recruited or seconded to elicit information leading to the arrest of mercenaries, their recruiters and ex-combatants together with the recovery of illegal arms in return for the payments totalling US$150,000. He says that he reluctantly agreed to participate and was relatively successful in his duties. He says that he made an instalment payment of US$15,000 but that his superior was replaced and that he no longer had authority to make the further payment of US$135,000 to the informant ex-combatant leaders. They responded by burning down the CCMRU training centre, the applicant's home and kidnapping his father and other family members.

3. In a statutory declaration  of 3 February 2012 the applicant says at [38]:

   I cannot go back to Liberia as the ex-combatants will find me as they have previously found me. They will kill me because of this outstanding debt to them. Few members of my family have already been killed and the whereabouts of the rest of my family and those who depend of me are unknown. Me and my family is (sic) in grave danger in Liberia.

4. The applicant claims that he contacted media outlets and one particular journalist. He says that the journalist met him at his sister in laws home on the evening prior to a scheduled meeting whereupon the sister in law’s home was attacked and three people in the household were killed. The applicant says that he then received a phone call telling him that he and his family would be killed if he did not pay the outstanding monies. That journalist swore an affidavit on 20 March 2012 which was placed before the Tribunal.

Tribunal's decisions

1. It is clear that the Tribunal's affirming of the delegates decision was based primarily on credibility findings contrary to the applicant.

2. Contrary to the delegate and a previously constituted Tribunal, this Tribunal accepted that the applicant was a member of CCMRU and that the organisation existed. The Tribunal noted that at the hearing on 2 March 2015 the applicant told the Tribunal that he had commenced work for CCMRU as a teacher/facilitator in November 2009 and that the Tribunal accepted this to be factually correct. [18]

3. At [19] the Tribunal expressed its concerns in respect of the applicant's claims that he was asked to undertake negotiations with ex-combatants whilst working for CCMRU and this resulted in him being targeted for harm by those ex-combatants. The Tribunal doubted the credibility of the applicant in respect of the timing or chronology. [21]
   The Tribunal's findings were based on inconsistencies in the applicant's own claims and evidence together with inconsistencies between his evidence and independent country information. For example, the Tribunal noted independent country information indicating that the Ivory Coast's second civil war began in March 2011 but that the applicant claimed to have been engaged with Liberian rebels participating in that conflict in October 2010. This inconsistency was raised with the applicant and he gave an explanation. [22] The Tribunal's findings at [22] are:

   Whilst the Tribunal accepts that the movements of mercenaries of those two countries may have been to some extent ongoing, it remains concerned that the applicants claims make direct reference to mercenaries taking part in the war on the Ivory Coast  prior to the commencement of that war.

4. The Tribunal expressed concerns as to the quantum of money allegedly provided to the applicant to elicit information being US$150,000 when the applicant's evidence was that he himself earned only $350.00 per month as a full time employee and hence was not accepting that the applicant's superior could have accessed such monies from the CCMRU budget without the knowledge of its board. It followed that the Tribunal had concerns about the applicant's explanation as to the source of those monies.

5. The Tribunal expressed concerns about inconsistencies in the applicant's evidence as to the manner and time in which the first instalment of $15,000 was allegedly paid to three ex-combatants [24].

6. At [25] the Tribunal noted inconsistencies between the applicant's evidence as to the arrest of a military leader and twelve of his fighters and evidence from independent sources.

7. At [27]-[29] the Tribunal expresses concerns as to documents provided and relied upon by the applicant in support of his claim including a letter from his superior noting that the CCMRU was to close its office in Liberia yet providing no telephone number or email address.

8. At [31] the Tribunal accepted the death certificates of three members of his extended family but did not accept that the deaths came about in the manner claimed by the applicant or that they were related to the applicant's claims.

9. At [30] the Tribunal sets out the following in respect of the incident at his sister in laws home with the journalist present:

   The Tribunal also considers that the applicant has given inconsistent evidence he and Mr Quaye managed to escape the house while his family did not. The statutory declaration made
   3 February 2012 he suggests that he was sleeping at 3 am on 22 December when he awoke to the sound of heavy gun fire and the explosion of grenades. However at the hearing on 2 March 2015, the applicant told the Tribunal that Mr Quaye was recording the applicant s interview in the lounge room at the house at the time of the attack while the applicant’s family slept in other rooms of the house.

10. The Tribunal deals with and rejects the applicant's ultimate claim at [36] as follows:

    For all of the above reasons, the Tribunal does not accept on the evidence before it that the applicant was asked by his former boss of CCMRU in 2010 to negotiate with and arrange payment to ex­ combatants in exchange for information provided by those persons leading to the arrest of mercenaries, their recruiters and ex-combatants and the recovery of illegal arms inside Liberia. The Tribunal does not accept that the applicant commenced such negotiations with three senior ex-combatants nor that he paid them an initial amount of US$15,000 on the understanding that further US$135,000 would be payable after arrests were made on the basis of information provided. The Tribunal does not accept that the applicant was directly or indirectly responsible for providing information leading to the arrests of Timothy Mamadee Toure or Isaac Shegbo, nor that he was involved in providing information leading to the recovery of caches of arms in Liberia. The Tribunal does not accept that the applicant was threatened by those ex-combatants when he was unable to pay the remaining dollars of US$135,000 nor that he relocated his family to Monrovia for fear of retaliatory action by those to whom he owed money. The Tribunal does not accept that the applicants father or any children he is responsible for were abducted by or on behalf of those ex-combatants nor does it accept that the CCMRUs training centre or the applicant s home in Rovergee were targeted in retaliation against the applicant. The Tribunal does not accept that the applicant sought the protection of the Liberian authorities or that he was denied such protection, nor that he arranged a meeting with the journalist Mr Peter King Quaye of Shout Africa Online, nor that the applicant’s sister in law was attacked early in the morning of 22 December 2011 by those ex combatants killing there of the applicants extended family members. The Tribunal does not accept that Mr Quaye assisted the applicant to seek refuge in the Ghanaian Embassy in Monrovia, nor does the Tribunal accept that the applicant fled Liberia for Ghana using a temporary travel document because his passport was not available to him. It follows that the Tribunal does not accept that the applicant will be targeted by harm by ex­ combatants or any other person for any reason relating to his employment at the CCMRU if he returns to Liberia now or in the reasonably foreseeable future.

11. Then at [37] the Tribunal concludes:

    On the evidence before it the Tribunal does not accept there to be a real chance that the applicant would be targeted for harm on the basis of his past work for the CCMRU or any other NGO nor on the basis of any future employment he may have with NGOs in Liberia now or in the foreseeable future.

12. At [38] and following the Tribunal considered the complementary protection provisions and criterion pursuant to s36(2)(aa) of the Migration Act 1958. The Tribunal properly acknowledged the "real risk" test imposing the same standard as the "real chance" test applicable to the assessment of any "well-founded fear." It followed for the same reasons that the Tribunal did not accept there to be real risk that the applicant will face significant harm for any of the reasons claimed.

Application to this Court

1. The applicant's further amended application sets out five grounds of complaint. Ground 1 - is supplemented by a further particular added with leave at the hearing before me.

Ground 1 - The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration by failing to consider a claim, or an integer of the claim, or a material question of fact raised by the material before the Tribunal.

Particulars:

a)The Tribunal noted the applicants claim to have been asked to seek out and pay informants in late 2010 in part at least because of 'political unrest in the Ivory Coast';

b)The applicant also claimed that he was asked to seek out and pay informants in late 2010 in part at least because, in the period when Liberia was about to have elections in 2011, there was concern that ex-combatants be involved and cause conflict and problems for the nation and the region, including possibly eroding the fragile peace in Liberia (see for example the applicant s statement, CB57-58, [5]-[9]; his oral evidence to the delegate from approximately 28 minutes 49 seconds to 29 minutes 48 seconds of the interview; approximately 17 minutes to

19 minutes of the hearing before the member of the Tribunal made the decision which is the subject of the present application.

c)Yet the Tribunal rejected this claim in significant part because of concerns about the timing of the request to the applicant as being before the outbreak of the second Civil War in Ivory Coast.

d)The Tribunal thereby showed that that it mistook the evidence and material before it, and therefore mistook - and therefore failed to address - the question whether in the context of long-standing political unrest in the Ivory Coast, or the threat to fragile peace in Liberia and the region, or the concerns about
ex- combatants in Liberia in the period leading up to and after elections in Liberia in 2011, the applicant may have been asked to seek and pay for information from former senior figures. (added at the hearing). The applicant claimed he was asked to seek out and pay informants in late 2010 within the context, in part, of political unrest in the Ivory Coast, but also, in part, with Liberia about to have elections in 2011 with concern that
ex-combatants be involved and cause conflict and problems for the nation in the region, including possibly eroding the fragile peace in Liberia. The Tribunal, however, rejected this claim of the applicant to have been recruited to pay money to informants and did so significantly because of concerns the Tribunal had about the timing of the request of the applicant as being before the outbreak of the second Civil War in Ivory Coast and where the Tribunal did not refer to the general context of the risk of de-stabilising the peace in the region, nor the context of elections in Liberia and the fear of violence before and after those elections, although these were mentioned by the applicant as part of his reasons for the proposal which he said his superior had put to him. The applicant claims, therefore that the Tribunal mistook the evidence and material before it particularly within context. In doing so the applicant claims that the Tribunal failed to consider his claims and integers of his claims and failed to consider information before it such that it fell into jurisdictional error in the making of its critical findings.

1. In his statutory declaration and set out in CB57 and following the applicant claimed that he was head of trainers and facilitators of
   ex­ combatants at CCMRU. He says that his job took him to every part of 15 counties in his country of Liberia. He says at [5] that Liberia was due to have general elections in 2011 and that political unrest in Ivory Coast attracted thousands of former Liberian rebels which could possibly spread back to Liberia and erode the fragile peace. He said that he was recruited to obtain information leading to the arrest of mercenaries and individuals recruiting mercenaries. The applicant says that he was funded to the extent of US$150,000 whereas the amount was 'higher as compared to the US500 promised to each mercenary when taking part in the war in Ivory Coast.'

2. The Tribunal set out the above at [18] - [21]. The Tribunal dealt with this evidence in respect of its findings of credit at [22]- [24].

3. It is clear that the Tribunal's concerns in respect of credit rested with the timing of events claimed by the applicant including the setting up of the alleged project in October 2010 whereas the Ivory Coast's second Civil War did not begin until March 2011. Nevertheless, the Tribunal was clearly appraised of the applicant's claim in respect of timing at [22] when noting that the applicant had stated that mercenaries constantly travelled between Liberia and the Ivory Coast since the first Civil War in 2002.

4. As such, it was entirely open for the Tribunal to express its concerns and make findings in respect of credibility based on the evidence as to 'timing' without having conflated the evidence as to long-standing political unrest in the region with the actual second Civil War in the Ivory Coast or the pending election in Liberia.

5. In circumstances where the Tribunal noted the applicant's claims and make findings of credit in respect of concerns as to 'timing' it seems to me that to the applicant is, in fact, seeking nothing more than a review of the factual platform profit by him where such further review is, of course, impermissible.

6. I find no merit with ground 1 of the complaint.

Ground 2 - the Tribunal fell into jurisdictional error in that it acted illogically or without any evidence in making findings on material questions.

1. The applicant particularises his complaint where the Tribunal rejected his suggestion of involvement of the Liberian government in making payments through the CCMRU but without evidence and secondly rejected, also by their assertion and without evidence, the covert use by the Liberian government of information arranged by the applicant's informants in the arrest of a notable former fighter.

2. In summary, the applicant argues that the Tribunal's rejection of two of his claims was unreasonable or illogical and not supported by the evidence.

3. This relates to the Tribunal's rejection of the applicant’s evidence in relation to the US$150,000 payment and from where the money had come. Notably, and as indicated by Counsel for the first respondent, the applicant at no stage gave definitive evidence as to the source of the money but ·rather his evidence was, at best, speculative in indicating that the money may have come from the Liberian government.

4. The starting point for this consideration is that it is for the applicant to give and adduce evidence to cause the Tribunal to reach an appropriate state of satisfaction as to his various claims. The onus is not on the Tribunal to establish the claim. [23] of the Tribunal's reasons should be read within its context. The Tribunal noted a quantum of $15,000 allegedly provided by the applicant's superior as against the applicant's evidence as to his own monthly earnings of only $350. The Tribunal appropriately questioned the source of such a large amount of money and the applicant was unable to provide any equivocal response.
   In determining the applicant's credit, it was open for the Tribunal to doubt the applicant's evidence on the basis of the quantum of the money involved and the apparent secrecy of the arrangement from the organisation's leadership. I accept the submission from Counsel for the first respondent that the Tribunal is not "a contradictor in the proceedings".  It is for the Tribunal to assess whether the claims of the applicant were made out to the relevant state of satisfaction. On the face of the Tribunal's reasons, it's reasoning process is apparent. It sets out the applicant's claims. It sets out its concerns. It did so in light of the probity of the applicant's own evidence being, firstly, an unexplained source of the funds and, secondly, against the independent evidence referred to in [25] of its reasons and in respect of the applicants claim that Mr Chegbo and 12 of his fighters had been arrested on 23 May 2011. Such findings were reasonably open to the Tribunal and they proceeded on a course of logical and reasonable consideration in respect of assessing the evidence which, after all, is the function of the Tribunal. I reject any proposition suggesting that the Tribunal needed contrary evidence to the effect, for example, that the Liberian government does not engage in "covert operations" before rejecting at the applicant's claims.

5. I am not persuaded by argument in support of ground 2 of the complaint.

Ground 3 - the Tribunal fell into jurisdictional error in that it failed to make enquiries as required by law, whether to exercise its power under section 424 of the Act to get information or otherwise.

1. Paragraph section 424 of the Migration Act 1958 provides:

   i)In conducting the review, the tribunal may get any information it considers relevant. However, if the tribunal gets such information, the tribunal must have regard to that information in making the decision on the review.

   ii)Without limiting subsection (1), the tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   iii)A written invitation under subsection (2) must be given to the person:

   a)Except where paragraph (b) applies - by one of the methods specified in section 441A; or

   b)If the person is in immigration detention - by method prescribed for the purposes of giving documents to such a person.

2. The applicant says that the Tribunal had before it an affidavit by the journalist attesting to various aspects of the applicant's application before the Tribunal including:

   ·The contact made by the applicant with the said journalist;

   ·The arrangements made for the interview between the applicant and the journalist;

   ·The attack on the sister-in-law's home with the journalist, the applicant and his family present;

   ·The deaths of the three relatives of the applicant in that attack;

   ·The disappearance of the applicant's wife and children after the attack;

   ·The involvement of the national and regional security agencies and the events claimed by the applicant; and

   ·The journalist's part in arrangements for the applicant to flee from Liberia to Australia.

3. The applicant argues simply that where the Tribunal relied heavily on negative credibility findings in respect of the applicant, there was evidence of corroboration of fact and hence of the credibility of the applicant. The applicant says that the Tribunal could and should have sought to verify the evidence of the journalist's affidavit by telephone or otherwise but failed to do so and fell into jurisdictional error in failing to make the relevant enquiries to get the information.

4. The applicant adds that the Tribunal was invited to make enquiries of the applicant's representatives at the hearing if the Tribunal was inclined to pursue the veracity and authenticity of the journalist's affidavit.

5. The High Court dealt with the issue of a suggested "duty to enquire" in Minister for Immigration and Citizenship and Anor v SZIAI[1] where the majority at [25] say:

   Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

   [1] (2009) 259 ALR 429

6. Subsequent considerations of the judgment in SZAIZ (supra) suggest a 3 limb test emanating from that decision each of which must be satisfied:

   a)whether the enquiry that the Tribunal failed to make was obvious;

   b)whether it concerned a critical fact , the existence of which was easily ascertained; and

   c)whether it supplied a sufficient link to the outcome as to constitute a failure to review.

7. Against this background, therefore, and where the Tribunal clearly has the power to make enquiries, the applicant argues that the particular factual platform here imposed a duty on the Tribunal to make such enquires.

8. The Tribunal acknowledged the journalist's affidavit at [29] as follows:

   The Tribunal has had regard to the copy of a document purporting to be an affidavit from Mr Quaye in which he states that he met with the applicant at his in-laws’s home around 10 PM on 21 December 2011 and was present when there was an explosion in the house around 3 AM from which Mr Quaye escaped with minor injuries. However, the contents of that affidavit do not assuage the Tribunal's concerns about the credibility of the applicant’s evidence in this regard and the Tribunal gives it little weight. The Tribunal does not accept that a journalist who lived in the same city as the applicant and whom he had never met would arrive late on the night before a scheduled interview and stay overnight at a strangers home, coincidently being present when that home was attacked by ex-combatants looking for the applicant. For these reasons and in conjunction with the Tribunals serious concerns about the applicant s credibility the Tribunal gives that purported affidavit little weight.

9. The Tribunal has quite obviously considered Mr Quaye's affidavit in light of the credibility of the applicant. The use of the word 'purported' twice in that paragraph suggests to me some doubt in the Tribunal as to the authenticity of the document in the sense considered by the Court in SZIAI (supra). The Tribunal at [29] also notes "that the affidavit does not assuage the Tribunal’s concerns about the credibility of the applicant’s evidence..."

10. The potential corroborative value of the journalist's affidavit could, in this context, impact on the crucial findings of the Tribunal in respect of this applicant's credibility. The invitation to the Tribunal to pursue such an enquiry is indicative, in my view, of the rationale of the document being adduced in evidence. Consequently, within that context I am persuaded that the enquiry available to the Tribunal and which it failed to make was an obvious one. Secondly, I am satisfied that, again within that the nature of the Tribunal's findings based on credit, the affidavit was evidence critical to the findings of the Tribunal. The critical "facts" are the claims of the applicant which were not accepted by the Tribunal by reason of findings of credibility. It further follows that I am satisfied that the affidavit supplied a sufficient link to the outcome being the Tribunal's dismissal  of the application based  on findings of credit contrary to the applicant's claims. I am satisfied, therefore, that the “power” in this case extended to a duty and the failure to make such enquiries causes the Tribunal to fall into jurisdictional error.

Ground 4 - the Tribunal fell into jurisdictional error in that it acted so unreasonable that no reasonable Tribunal would so have acted.

1. This ground of complaint is subsumed in my reasons above.

Ground 5 - the Tribunal fell into jurisdictional error in that it misunderstood the law or applied the wrong relevant test.

1. The applicant argues that the Tribunal in its assessment of his claim to recognition of refugee under Convention the Tribunal did not accept that the applicant " will be targeted" for harm by ex- combatants or any other person for any reason relating to his former employment at the CCMRU. [36]. The term "will be targeted" is repeated at [39].
   The applicant argues that the Tribunal therefore applied the wrong test of whether the applicant was a refugee under the Convention with a well-founded fear of persecution and therefore meeting a criterion for the grant of the Protection Visa. At [40] the Tribunal says:

   In MIACV v SZQRB, the full Federal Court held that the 'real risk ' imposes the same standard as the 'real chance' test applicable to the assessment of ' well - founded fear' in the Refugee Convention definition. For the same reasons the Tribunal does not accept there to be a real risk that the applicant will face significant harm for any of the reasons claimed.

2. The applicant argues, therefore, that this was a finding not  about whether there was merely a real risk of significant harm but a particular finding whether the applicant 'will be' or 'would be' subjected to significant harm.

1. At [37] of its reasons the Tribunal finds:

   On the evidence before it the tribunal does not accept there to be a real chance that the applicant would be targeted for harm on the basis of his past work for the CCMRU or any other NGO nor on the basis of any future employment he may have with NGOs in Liberia, now or in the foreseeable future.

2. Previously at [36] the Tribunal finds:

   It follows that the Tribunal does not accept that the applicant will be targeted for harm by ex- combatants or any other person for any reason relating to his former employment at the CCMRU if he returns to Liberia, now or in the reasonably foreseeable future.

3. I accept the submissions of Counsel for the first respondent that the Tribunal's reasons should not to be confused in firstly dealing with and rejecting the applicant's own claims that he would be harmed or killed as opposed to dealing with the 'real chance' test in the final sentence of [37]. I am, therefore, not satisfied the ground five of the complaint has been made out.

Conclusion

1. Having found merit to ground three of application for judicial review, there will be an order quashing the decision of the Tribunal and remitting the matter for determination together with an order for costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge McGuire.

Date: 5 October 2016