ANY15 v Minister for Immigration

[2015] FCCA 2361

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANY15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2361

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – bias – unreasonableness – whether the Tribunal’s findings lack an evident and intelligible justification – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Applicant: ANY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1104 of 2015

Judgment of: Judge Street

Hearing date: 31 August 2015

Date of Last Submission: 31 August 2015

Delivered at: Sydney

Delivered on: 31 August 2015

REPRESENTATION

The first and second applicants appeared in person

Solicitors for the first respondent: Ms N Johnson
Mills Oakley Lawyers

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. The period under s.477 of the Migration Act 1958 be extended up to and including 22 April 2015.

3. The application is dismissed.

4. The First and Second Applicants pay the First Respondent’s costs fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1104 of 2015

ANY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 17 march 2015 affirming a decision of the delegate not to grant the applicants a protection visa.

2. All three applicants are adults.  The second applicant is the partner of the first applicant and the third applicant is their daughter.  The first applicant, relevantly, has a migration history in relation to Australia of having travelled to Australia on five previous occasions before arriving in November of 2012 with the second and third applicants on a three month tourist visa. 

3. It was only after the expiry of that three month tourist visa that the applicants then sought protection.  The second and third applicants had also travelled to Australia twice before. 

4. The Tribunal made adverse findings in relation to the credit of the applicants albeit that the Tribunal accepted a particular incident asserted by the third applicant but found that particular incident was not the basis of any genuine fear of persecution for a Convention reason. 

5. Proceedings were commenced on 22 April 2015 and on 28 May 2015 orders were made permitting the applicant to file an amended application and put on affidavit evidence and submissions in support of the application.  The applicant did file an affidavit in relation to the extension of time and an explanation for the delay.  The respondent consented to the extension of the time and the Court has made an order accordingly.  No other submissions or amended application was put on. 

6. Prior to the hearing date fixed for 31 July 2015, due to a longstanding condition of the second applicant the matter was, by consent, adjourned to 31 August 2015. 

7. At the commencement of the hearing today at 10.15am the applicants applied for an adjournment.  No earlier notice had been given to the first respondent of that application for an adjournment.  The adjournment was opposed. 

8. The first applicant explained that he had been trying to get hold of a solicitor and could not get one and he wanted an adjournment in those circumstances.  Given the history of the matter, having been commenced on 22 April 2015, as well as the adjournment by consent that occurred on 31 July, the applicants have not made out any satisfactory explanation for why an adjournment should be granted. 

9. Further, the Court is not satisfied that an adjournment would be of any utility. There was nothing said by the applicant or any evidence put on to suggest a basis upon which the Court could be satisfied that an adjournment would give rise to the applicants being in any different position in relation to the engagement of a solicitor. 

10. The application identifies the following grounds:

    1. The Refugee Review Tribunal erred in finding that the tribunal is not satisfied that there is a real risk the applicants will suffer significant harm. The decision is bias and unreasonable.

    Particulars

    (a) Error in finding that the applicants have not been subjected to discrimination or harm as Muslims

    (b) Error in finding that the applicants will not face a real chance of serious harm in the reasonably foreseeable future on the basis of their Muslim faith and their ethnicity despite the reports/statistics showing crime rate against women of Muslim faith provided to the Tribunal.

11. I accept the submissions of the first respondent that bias must be distinctly alleged and clearly proven.  There is nothing other than the adverse findings to which the application refers in support of the allegation of bias.  Adverse findings are not a basis upon which a fair minded observer might reasonably apprehend that the Tribunal might not bring an impartial and independent mind to the determination of the matter on its merits.  The allegation of bias has not been proved. 

12. The second matter referred to in the ground advanced on behalf of the applicants in the application is that the decision was unreasonable. 

13. This is a case where the Tribunal identified the applicant’s earlier history in coming to Australia and the delay in the application for protection as well as the inconsistencies in the applicants’ evidence and that included fresh claims being advanced by the applicants to the Tribunal in the hearing that was held on 18 December 2014 notwithstanding the earlier occasions that the applicants had had to advance any such claims.  It was in those circumstances that the adverse findings of credit were clearly open and the adverse findings cannot be said to lack an evident and intelligible justification. 

14. There is no substance in the assertion that the decision was unreasonable.  This ground in the application fails to make out any jurisdictional error.  The absence of any arguable ground of jurisdictional error is a further factor that the Court has taken into account in refusing an adjournment. 

15. Further, the Court is of the view that an adjournment will only unnecessarily add to the costs of the parties and further utilise limited Court time.  In these circumstances the Court is satisfied that this is not an appropriate case in which to grant an adjournment and that an adjournment would be of no utility. 

16. The applicants were found to be nationals of Fiji and their claims were assessed against that country as the receiving country.  The first applicant claimed to fear persecution because of his Muslim faith, Indo-Fijian race and an imputed anti-government political opinion.  The second and third applicants claim to fear sexual abuse as Muslim women in Fiji.  The Tribunal found that the applicants “are not credible, reliable or truthful witnesses” and set out detailed reasons in that regard.  I note this is a case where there had been an earlier hearing by the applicants before a differently constituted Tribunal, which decision had been set aside on the basis that the earlier Tribunal had not considered the applicant’s claim to be prevented from owning land. 

17. It is clear this Tribunal took that claim into account and made adverse findings in relation to the applicants.  Relevantly, the Tribunal found:

    98. In making these findings, the Tribunal has also considered the available country information (referred to in more detail below). However, the Tribunal is not satisfied that the country information supports these adult applicants' claims, noting the significant credibility problems, as well as their ability to travel out of Fiji numerous occasions (and their choice to return), the failure to previously claim asylum in Australia despite a history of significant persecution, and their seven month delay in leaving Fiji after the most recent visas were granted.

    …

    100. The Tribunal is not prepared to accept that the adult applicants suffered any harm or abuse or threats or harassment in the manner claimed or at all. The Tribunal does not accept that the applicant was beaten, kidnapped, assaulted, threatened, attempted break-ins, that he ever required medical treatment for such reasons, that he could not practice his religion freely or had to hide it or that he was neglected by society or that people talk to him in a silly or inappropriate way because he changed his religion, that people have refused to get in his taxi, that his car windscreen was smashed, that people have thrown bottles and sticks at him, that he has had any fears or suffered any harm at the times of elections or coups, or because he is an Indo-Fijian, or Muslim, or both, or that he has had to move, or that he has enemies in Fiji who want to cause him harm. The Tribunal is not prepared to accept that the wife has been subjected to death threats, attempted break-ins, being talked down to, being spat at, ridiculed in public, been the subject of rude or vile comments including suggestions of rape, called a terrorist, taunted for wearing a headscarf or told to take it off, that she has had to run away or she has been bullied or abused or had her purse stolen, that she has had any fears or suffered any harm at the times of elections or coups, or because she is an Indo-Fijian, or Muslim, or both, or that she has had to move, or that she has enemies in Fiji who want to cause her harm.

    101. In summary, the Tribunal has such significant concerns about the lack of credibility of the adult applicants, that it is not prepared to accept any of their claims about past harm, discrimination, harassment, assault, threats or fears.

    …

    103. The Tribunal has taken into account the failure to lodge protection visa applications on previous trips to Australia, as referred to above, as well as the delay in leaving Fiji once the visas to Australia had been granted, and the Tribunal is not satisfied that the daughter (nor her parents) have held fears for her safety in the past.

    104. The Tribunal is also not prepared to accept any of the claims made about her by the other applicants, including that she was taunted (apart from this one incident in 2009 which it accepts), or that her schooling will suffer, or that her father's religion had any impact on her.

    …

    105. … The Tribunal finds that the applicants have not been prevented from practising their religion in Fiji in the manner they desire.

    …

    107. … On the evidence before it, the Tribunal is not satisfied that the female applicants were subjected to serious or significant harm in relation to their passport photographs, nor as claimed, that this is evidence of discrimination carried out by the Fijian authorities against Muslims.

    108. The Tribunal will now consider future harm, noting that it has disregarded all claims of past harm including discrimination other than the daughter being subjected to rude comments once in 2009. The Tribunal does not accept the assertions of the applicants that they are each concerned for the safety of the other in Fiji, and that they will suffer harm.

    …

    117. On the evidence before it, the Tribunal is not satisfied that the applicants face a real chance of serious harm in the reasonably foreseeable future on the basis of their religion, or their ethnicity/race, or a combination of both.

    …

    119. … The Tribunal does not consider these responses to be persuasive, especially having regard to the country information they produced at hearing, noting that there had been four political coups in 20 years, which had caused serious disruptions.

    …

    124. … The Tribunal is not satisfied on the evidence before it that there is a real chance of serious harm in the form of sexual assault or harassment or other abuse against the wife and daughter, as women, nor is it prepared to accept that the applicants face a real chance of being subjected to other crimes, in the reasonably foreseeable future.

    125. … The applicant said there is no guarantee that they will be okay, and the Tribunal explained again that the threshold for a protection as a refugee or under the complementary protection provisions was not a guarantee, but to consider whether there was a real chance of serious harm or a real risk of significant harm; the Tribunal does not consider that such matters indicate a real chance of serious harm or real risk of significant harm to the applicants.

    …

    127. … The Tribunal has not accepted that the applicant is a witness of truth, and it does not accept that the applicant has any political opinion that would lead to him suffering any harm in Fiji, nor does it accept that he has a political opinions such that he would be forced to suppress it in Fiji. The Tribunal does not accept this claim.

    …

    130. …The Tribunal is not satisfied on the basis of this assertion that because a person has written a dob-in letter to the Australian authorities about the applicants, that there is a real chance or real risk that a lesser will be written to the Fijian authorities which would cause the Fijian authorities to seriously or significantly harm the applicants.

    …

    132. The applicants did not provide the Tribunal any other concerns about the authorities concerning their travel to Australia and returning as failed asylum-seekers. The Tribunal finds that the applicants have no profile other than as a family of Indo-Fijian Muslims who have travelled outside Fiji on numerous occasions in the past, including to Australia, and who will be returning again from Australia. The Tribunal is not satisfied that the applicants have a genuine subjective fear of the authorities concerning their return; nor is it satisfied on the evidence before it, namely the DFAT information, that they face a real chance or a real risk of coming to the adverse attention of the authorities when they return to Fiji or thereafter, nor that they face a real chance or a real risk of any harm in this regard. The Tribunal is not satisfied that there is any reason for the applicants to be imputer with a political opinion against the government.

    133. … The Tribunal does not accept the claim that they will have difficulties upon return in Fiji in restarting their lives (for example finding work and a place to live), nor that there is a real chance or a real risk that ethnic Fijians will want to ham1 them. The Tribunal does not accept that there is a real chance or a real risk that the applicants will not be able to have a place to live, or be able to support themselves, including if desired, further educate the daughter.

    134. The Tribunal has significant concerns about the adult applicants' credibility concerning their claimed inability to be able to purchase land, either on the basis of their race or religion, or both. The Tribunal recalls that the applicant's claim ranged from having made three attempts to purchase land, up to over 15, and the wife said it was four or five. The Tribunal considers it reasonable to assume that the applicants would have known how many times they had applied unsuccessfully to purchase land, noting that the purchase of land is a significant event.

    …

    143. Even if the Tribunal gives the applicants the benefit of the doubt, and accepts that they made two applications for land (on the basis of the documents), the Tribunal considers that there can be many reasons why property transactions do not go ahead. The Tribunal has formed a very adverse view of the credibility of the adult applicants, and the Tribunal is not prepared to accept their claims concerning land beyond that they have made two applications (in 2010). The Tribunal is not prepared to accept that these two applications were unsuccessful, nor is the Tribunal prepared to accept that the applicants would be unable to purchase land in the future, if they chose to do so. In this regard, the Tribunal also notes that in the protection visa application form, it is stated that ethnic Indians in Fiji are second-class citizens, with the only exception being those Indian Fijians with extra money or connections. The Tribunal has considered the applicants' extensive travel history, and it considers it highly likely that they are such persons, namely people with extra money and connections. The Tribunal is not satisfied on the evidence before it that the applicants are unable to purchase land in Fiji using their connections and extra money.

    144. Further, on the basis of the adverse credibility finding, and the lack of any evidence, the Tribunal is not satisfied that the applicants face any form of serious or significant harm on the basis of the assertion in the protection visa application form that China is pouring money into Fiji.

    145. The Tribunal has considered the adult applicants' claims individually, and on a cumulative basis, having regard to the findings that they are not credible witnesses concerning past or future harm feared, as well as the relevant country information, the Tribunal rejects all the various claims made and finds that they do not have a well-founded fear of Convention related persecution for any of the reasons put forward by them, or on their behalf. The Tribunal has also considered the daughter's claims individually, and on a cumulative basis, and noting that it accepts that she has experienced a one-off unpleasant episode of rude comments (that she did not understand), and considering the country information, the Tribunal finds that she does not have a well-founded fear of Convention-related persecution for any of the reasons put forward on her behalf.

18. It was in those circumstances that the Tribunal turned to the issue of complimentary protection and relevantly found:

    148. The Tribunal is not satisfied that the applicants have experienced significant harm in the past in Fiji, when considered singularly or cumulatively. The Tribunal also notes the previous opportunities the applicants have had to claim asylum in Australia, and their delay in leaving Fiji after they received their visitor visas. The Tribunal is not satisfied, on the basis of the evidence before it including the country information and statistics about increasing crime rates, and the findings of fact in relation to the applicants and the country information, that they face a real risk of any form of significant harm in Fiji, namely being subjected to crimes, human rights difficulties, sexual harassment or abuse or threats or any other harm, for reasons of their religion, race/ethnicity, gender, youth, having claimed asylum in Australia and been out of Fiji for a long period (in a country where they have extensive relation; or any other claimed reasons.

    149. On the evidence before it, and for the reasons discussed above, and having considered the claims singularly and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, namely Fiji, that there is a real risk they will suffer significant harm. Accordingly, the Tribunal finds that the applicants do not satisfy the requirements of s.36(2)(aa) of the Act.

19. The Tribunal was not satisfied that the applicants are persons in respect of whom Australia has a protection obligation and that they did not satisfy the criteria under s.36(2)(a) or s.36(2)(aa). Those findings cannot be said to be unreasonable and were open on the material before the Tribunal. I am satisfied the applicants had a genuine hearing and that the Tribunal properly conducted the review in accordance with their statutory obligations.

20. The application fails to make out any jurisdictional error. The application is dismissed.

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

Associate: 

Date:  2 September 2015