Anl19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 306

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 306

File number(s):	SYG 295 of 2019
Judgment of:	JUDGE DRIVER
Date of judgment:	15 March 2021
Catchwords:	MIGRATION - review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Fiji – applicant not believed – whether the Tribunal failed to properly consider relevant material considered – no jurisdictional error.
Legislation:	Migration Act 1958 (Cth), ss 36, 438
Cases cited:	Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Number of paragraphs:	30
Date of hearing:	22 February 2021
Place:	Sydney
Solicitors for the Applicant:	Mr R Chaudhry of Chaudhry Legal
Solicitors for the Respondents:	Ms P Durham of Sparke Helmore

ORDERS

SYG 295 of 2019

BETWEEN:

ANL19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEAL TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	15 MARCH 2021

THE COURT ORDERS THAT:

1.The application as amended on 8 April 2019 is dismissed.

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 January 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant, a citizen of Fiji, arrived in Australia on 7 October 2015 as the holder of a visitor visa.[1] On 20 November 2015, the applicant lodged an application for the visa.[2] On 4 March 2016, the delegate refused to grant the applicant the visa.[3]

   [1] Court Book (CB) 13, 20

   [2] CB 2-38

   [3] CB 506-516

4. On 9 March 2016, the applicant applied to the Tribunal for review of the delegate’s decision.[4] On 7 January 2019, the applicant appeared before the Tribunal to give evidence and present arguments.[5] The applicant’s former military colleague also gave evidence at the hearing.

   [4] CB 517-518

   [5] CB 573-576

5. On 21 January 2019, the Tribunal affirmed the delegate’s decision.[6]

   [6] CB 581-602

   Applicant’s claims

6. The applicant’s claims for protection as set out in his visa application and written statements to the delegate can be summarised as follows:[7]

   (a)the applicant was a member of the Fijian military (Army). In 2014, whilst working as a UN Peacekeeper in Syria, he was one of 45 people captured by ISIS operatives and held captive for 15 days;

   (b)after his release, he was required to write a statement about the kidnapping (the Statement).[8] He was instructed by the Military Commander and a superior authority to change the Statement but he refused to do so;

   (c)the applicant believed his superiors asked  him to change the Statement because they did not want to look weak as this could impact the Army’s reputation and jeopardise the opportunity for future UN peacekeeping missions;

   (d)upon return, his service was terminated because he had not changed the Statement;

   (e)the Army is corrupt and mistreat personnel. He feared physical harm or persecution from the Army due to his refusal to change the Statement;

   (f)he received verbal threats that if he disclosed anything, he would be caught and harmed because of his disloyalty to the Army;

   (g)his house was broken into twice which he believed to be linked to the Army;

   (h)since his arrival in Australia, Police and Army personnel visited his house seven times looking for him.

   [7] CB 78-86

   [8] CB 107-109

7. In a written statement to the Tribunal the applicant further claimed that:[9]

   (a)the points in the Statement that the Army wanted him to change concerned the pointing of loaded weapons, being tortured and that the captives had not been paid compensation owed to them;

   (b)he had been dishonourably discharged from the Army;

   (c)when with his family, he received death threats and was told that he was under surveillance.

   [9] CB 560-562

8. In oral evidence to the Tribunal the applicant claimed that the aspects of the Statement that the Army wanted him to change related to the beheading of captives, the surrender of arms and the mention of guns being pointed at his head.[10]

   [10] CB 587, [57]

   Tribunal decision

9. The Tribunal identified that there were two non-disclosure certificates issued pursuant to s 438 of the Migration Act 1958 (Cth) (Migration Act). The Tribunal identified that a copy of both certificates were provided to the applicant. The Tribunal found that the first certificate was not valid as the reason provided for non-disclosure did not provide a sufficient basis for public interest immunity. However, the Tribunal found the documents it covered were not relevant to the review and put no weight on them.[11] The Tribunal found the second certificate was valid because the information it covered was given in confidence. The Tribunal put the substance of the information to the applicant for comment and had regard to the applicant’s response to the allegation.[12]

   [11] CB 585-586, [32]-[36]

   [12] CB 586, [37]-[43]

10. In relation to the applicant’s claims, the Tribunal accepted that he was a member of the Army and that as part of a Fijian Peacekeeping force in Syria he was captured by Syrian forces in Golan Heights in 2014 and released after 15 days.[13]

    [13] CB 593, [105]-[107]

11. The Tribunal observed that the applicant’s claims stemmed from the Statement.[14] The Tribunal was “perplexed” as to how the applicant’s superiors could fault the Statement or conclude that it was embarrassing to the Army.[15] The Tribunal could not find any reference in the Statement to beheading of captives, the surrendering of arms, the mention of guns being pointed at the applicant’s head or the fact that compensation had not been paid to the soldiers, which the applicant claimed at the hearing he had been told to amend.[16] Accordingly, the Tribunal found that the applicant’s claim that he was requested to makes changes to the Statement to avoid embarrassment to the Army made “no sense whatsoever”.[17] The Tribunal did not accept the applicant’s claims that he had been requested by his superiors to make changes to the Statement.[18]

    [14] CB 593, [109]

    [15] CB 595, [111]

    [16] CB 596, [112]

    [17] CB 596, [114]

    [18] CB 596, [115]

12. The Tribunal considered that there was some inconsistency in relation to the applicant’s claims as to how he came to be in possession of the Statement. At the hearing he claimed that he had been given a copy of the Statement by the Army when he submitted a hard copy to them, whereas, in a statutory declaration provided to the delegate the applicant claimed that he had managed to gain access to a computer operated by a clerk, locate the Statement and printed a copy.[19] The Tribunal found that this tended to show that the applicant was prone to exaggerating his recounts of events and would fabricate a claim to advance his cause. Accordingly, the Tribunal found that the applicant had fabricated his claims that his superiors ordered him to change his Statement because it would have embarrassed the Army.[20]

    [19] CB 596, [116]

    [20] CB 596, [117]-[118]

13. Turning to the applicant’s claim to have been dishonourably discharged from the Army, the Tribunal considered the letter of termination provided by the applicant was consistent with a finding that the applicant had been appointed to peacekeeping duties for one year and upon expiry of that year he was posted to the Territorial Force of which he was still a member.[21] The Tribunal considered the applicant’s claim, made at the hearing, that there was a further discharge letter which he was given on his return from Syria but which he was unable to produce as it had been lost.[22] The Tribunal considered that the applicant’s explanation was inconsistent with his representative’s submissions (who did not mention a second letter) and was “so far-fetched and fanciful as to be completely implausible” and appeared to be made up by the applicant as he went along.[23] Based on the above and the fact that the applicant was able to produce a number of documents during the review process, except for the second discharge letter, the Tribunal found that there was no second discharge letter and the applicant was not dishonourably discharged from the Army.[24]

    [21] CB 597, [121]

    [22] CB 597, [123]-[126]

    [23] CB 597, [126]-[127]

    [24] CB 597, [128]-[129]

14. Based on its findings that the applicant was not ordered to amend his Statement and was not dishonourably discharged, the Tribunal found that the applicant would not have been threatened and abused by his superiors for insubordination and that he did not fear serious harm in Fiji.[25]

    [25] CB 598, [130]-[133]

15. Accordingly, the Tribunal was not satisfied at [135] and [140] that the applicant was a person to whom Australia owed protection obligations under s 36(2)(a) of the Migration Act. Nor was the Tribunal satisfied at [136]-[139] and [141] that the applicant was owed complementary protection under s 36(2)(aa).

    THE CURRENT PROCEEDINGS

16. These proceedings began with a show cause application filed on 14 February 2019.  The applicant now relies upon an amended application filed on 8 April 2019.  There are six grounds in that application but Ground 6 was not pressed.  Grounds 1-5 are:

    Ground 1

    The Tribunal committed erred when it failed to properly consider relevant evidence and with respect to the Applicant's role in refusing to prepare and submit a favourable report of his and other Fijian military soldiers in Syria in 2014 by Al Qaeda forces as directed by his superiors and that such refusal led to him being subjected to threats, intimidation and discrimination by the Fijian military.

    Ground 2

    The Tribunal erred when failed to properly consider the Applicant's political opinion with respect to the capture of the Fijian soldiers in Syria in 2014 by Al Qaeda forces and how his voicing such opinion led to him being subjected to threats, intimidation and discrimination by the Fijian military.

    Ground 3

    The Tribunal erred when failed to properly take into account that the demotion of the Applicant to the Territorial Forces from the Regular Force was on account of his political opinion and that he was precluded from further tours of duty on account of such his political opinion which was different to that of the Fijian military and the Bainimarama regime at the material times.

    Ground 4

    The Tribunal erred when it failed to take into account relevant considerations with respect to freedom of expression as it concerned the public as opposed to those in the disciplined forces who were subject to orders from their superiors on all matters.

    Ground 5

    The Tribunal erred when it did not adequately consider the traumatic effects of the Applicant's capture (along with other Fijian soldiers) and its effect on them mentally and psychologically and with consequential ramifications on the Applicant's evidence at the Tribunal hearing.

    (errors in original)

17. In addition to the court book filed on 25 March 2019, I have before me as evidence two affidavits read on behalf of the Minister.  The affidavit of Kirby Alexandra Dunlop made on 8 May 2019 concerns a notification made by a delegate of the Minister relating to documents not reproduced in the court book.  Annexed to that affidavit are communications between the Minister’s Department and the Tribunal concerning certain documents also annexed, including a confidential annexure. 

18. The affidavit of Todd Kliendienst made on 20 May 2019 concerns the same matter.  The Minister claims public interest immunity in relation to the documents in the confidential annexure to Ms Dunlop’s affidavit.  I received the affidavits and their annexures subject to relevance.  In the event, their relevance was not apparent because, although the documents concern matters raised by the Tribunal in its decision, those matters were not put in issue by the applicant.  I have not found it necessary to consider the documents in the confidential annexure.

19. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 22 February 2021. 

    CONSIDERATION

20. The applicant’s submissions develop uncontroversial legal principles but, in the application of those principles to the facts of this case, the applicant’s arguments struggle to rise above a contest over the merits of the Tribunal decision.  There is no doubt that the applicant experienced some traumatic events in Syria when he and other Fijian soldiers were taken captive.  It is possible that the applicant has exhibited some symptoms of PTSD[26] on return and was unable to settle down in Fiji following his return.  It is also possible that he harbours some grievance over his treatment on return.  Those questions, however, do not establish any jurisdictional error on the part of the Tribunal. 

    [26] Post Traumatic Stress Disorder

21. The Minister’s submissions comprehensively address the grounds pressed by the applicant.  I agree with those submission and adopt them.

22. By Ground 1 the applicant contends that the Tribunal failed to properly consider what was “happening on the ground” in Fiji when it rejected the applicant’s claim that he was ordered to change his Statement.  The applicant identifies various matters about the Army and the election held on 17 September 2014 that he says the Tribunal failed to consider. The claims in relation to the election are misconceived as the Statement was not drafted until October 2014. In any event, the Tribunal did consider country information at [85]-[91][27] of its decision about the Fijian political climate in 2014, including that a general election was held.

    [27] CB 590-591

23. The Tribunal also considered in detail the applicant’s claims that his Statement, if not changed, would cause embarrassment to the Army. In submissions to the delegate, the applicant’s representative contended that the Statement would be embarrassing to the Army because it contradicted the government’s official line that the captives had been well treated. In support of this contention the submissions referred to country information about the importance of revenue from peacekeeping missions to the Army and Fijian government.[28] However, the written submissions did not specifically identify what parts of the Statement the applicant was asked to remove. The Tribunal identified the written submissions provided by the applicant at [24] of its decision.[29]

    [28] CB 490

    [29] CB 584-585

24. It is clear from the Tribunal’s decision that it had difficulty accepting that anything in the Statement would be considered embarrassing to the Army.[30] The Tribunal recorded that at the hearing it put to the applicant that the Statement appeared quite benign and asked him to identify what parts his superiors were concerned about. The applicant responded that his superiors were concerned about evidence relating to the beheading of captives, the surrendering of arms and the mention of guns being pointed at his head.[31] As the Tribunal found, those matters did not appear in the Statement. Nor was the applicant able to identify any other part of the Statement that the Army would find embarrassing. It was open for the Tribunal to conclude that the applicant’s claim made “no sense whatsoever” and to reject the assertion that he had been requested by his superiors to change it.[32] Having rejected the factual basis for the claimed harm, the Tribunal was under no obligation to consider and make findings on the state of affairs of the Army at the time.

    [30] CB 595, [111]

    [31] CB 587, [57]-[60]

    [32] CB 596, [114]-[115]

25. The applicant further contends that the Tribunal had a duty to inquire into the applicant’s reasons for leaving Fiji. This issue was not raised in the amended application and the Minister opposed leave being granted for the applicant to rely on this ground.  I have nevertheless considered it.  The applicant’s reasons for leaving Fiji were not a critical fact the existence of which was easily ascertainable.[33] As identified by the Tribunal at [101], it was the applicant’s responsibility to provide sufficient evidence to satisfy the Tribunal of his claims. The Tribunal was not required to make the applicant’s case for him, and the applicant had already provided evidence to the Tribunal that he had left Fiji because he feared harm from the Army and government.[34] Contrary to the applicant’s submissions, there are other conceivable explanations for why the applicant may have departed Fiji a month after returning from Syria. Further, there is no reason to conclude that if the Tribunal had asked the applicant why he left Fiji so soon after returning, any response would be different to the claims he had already made or that it would overcome the Tribunal’s adverse credibility findings.

    [33] Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25]

    [34] CB 31

26. By Grounds 2-4, the applicant contends the Tribunal failed to properly consider that the applicant would face harm for expressing his political opinion, that he was demoted because of his political opinion and that those in the Army were subject to different conditions than the public when it came to freedom of expression.

27. As discussed above, the Tribunal provided a logical basis for concluding that the applicant had never been asked to amend the Statement. The Tribunal did not accept that there was anything in the Statement that could be considered embarrassing. It follows that the Tribunal did not accept that the Statement expressed a political opinion that would attract any adverse attention from the Army or Fijian government. The Tribunal did not accept the applicant had been threatened for this reason or would otherwise face harm on this basis.[35] Given the Tribunal had rejected the applicant’s claims in their entirety, it was not required to consider the issues identified in these grounds. In substance, these grounds do no more than seek impermissible merits review.

    [35] CB 598, [130]-[133]

28. Ground 5 contends the Tribunal failed to consider how the traumatic events the applicant had encountered would affect his ability to give evidence. The Tribunal recognised that it must take care in making credibility findings to give the applicant the benefit of the doubt unless there were good reasons to the contrary.[36]  However, this still required the Tribunal to consider whether the applicant’s statements were coherent, plausible and not contrary to generally known facts. The Tribunal’s credibility findings went beyond just considering any inconsistencies in the applicant’s evidence to find that the very premise of the applicant’s claims “made no sense whatsoever”, were “completely implausible” and were not supported by the documentary evidence provided by the applicant.[37] In light of the Tribunal’s comprehensive credibility findings, an allegation that the Tribunal failed to properly take into account any difficulties the applicant may have had giving evidence cannot be sustained.

    [36] CB 593, [103]-[104]

    [37] CB 596-597, [112], [114], [127], [129]

    CONCLUSION

29. The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

30. I will hear the parties as to costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       15 March 2021