ARO18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 921

Federal Circuit and Family Court of Australia

(DIVISION 2)

ARO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 921

File number(s):	SYG 397 of 2018
Judgment of:	JUDGE LAING
Date of judgment:	9 November 2022
Catchwords:	MIGRATION – request for adjournment – whether the Tribunal misunderstood or failed to consider the applicant’s claims – whether any material error resulted from non-disclosure of a s 438 certificate – application dismissed.
Legislation:	Migration Act 1958 (Cth) s 438
Cases cited:	Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Division:	Division 2 General Federal Law
Number of paragraphs:	31
Date of hearing:	3 November 2022
Place:	Sydney
Solicitor for the Applicant	The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent	Ms K. Evans (Sparke Helmore) appeared in person

ORDERS

SYG 397 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ARO18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	9 November 2022

THE COURT ORDERS THAT:

1.The application be dismissed.

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 LAING

INTRODUCTION

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa). 

   BACKGROUND

2. The applicant is a citizen of Jordan.

3. The applicant, with his mother, arrived in Australia on 31 December 2014 on a Visitor (Subclass FA-600) visa (visitor visa).

4. The applicant and his mother applied for protection visas on 24 March 2015. Each completed their own Form 866C.

5. The Delegate refused the applications on 22 March 2016, making separate decisions in respect of the applicant and his mother.   

6. On 11 April 2016, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant and his mother made separate applications for review.

7. The applicant attended a hearing before the Tribunal on 20 September 2017, with the assistance of an Arabic interpreter.

8. On 16 January 2018, the Tribunal affirmed the Delegate’s decision in respect of the applicant’s visa application.

   THE TRIBUNAL’S DECISION

9. At [3]-[19], the Tribunal summarised the applicant’s claims for protection as well as the evidence that was before it. The applicant claimed that he and his mother caught a female neighbour, who was a member of a well-known and powerful family in Jordan (neighbouring family), breaking into their apartment and stealing items. He claimed that the neighbouring family then violently targeted the applicant for committing what they believed was a ‘crime of honour’ against them because the applicant had ‘defamed’ them. The applicant claimed that he raised the robbery with the police and a parish priest, both of whom advised him not to pursue legal action against the family because they were ‘dangerous’.  The applicant also claimed that as he and his mother were part of a Christian minority, the neighbouring family did not fear them. He claimed to face harm in Jordan on account of his religion. 

10. The Tribunal observed at [20]-[21] that the Department’s file contained a non-disclosure certificate purportedly issued under s 438 of the Migration Act 1958 (Cth) (Act). Having regard to the underlying material and to the reason stated for non-disclosure, the Tribunal formed the view that the certificate was invalid. The Tribunal stated that it had therefore proceeded to ‘treat the documents in the usual way as if there was no certificate’.

11. The Tribunal did not accept that key aspects of the applicant’s claims were credible (at [28] and [41]). In this regard:

    (a)The Tribunal observed that there were inconsistencies in the applicant’s evidence and the evidence of his mother as to whether the applicant was physically assaulted, what weapons his attackers had possessed, where the applicant and his mother had resided after the alleged attacks and what had happened subsequently. The Tribunal did not accept that satisfactory explanations had been provided for these inconsistencies in the evidence (at [28]-[41]).

    (b)The Tribunal observed that a translated medical report and certificate had been provided by the applicant in support of his claims. However, originals of the documents had not been provided. The date on the documents did not match the timeline that had been claimed by the applicant in relation to the alleged attack. The Tribunal also observed that the applicant had told the Tribunal that his friend had falsely registered the applicant’s name on his company’s registration documents as a business partner, which was relied upon in support of the applicant’s visitor visa application. This indicated that the applicant was willing to present false information in order to obtain an immigration outcome. Given these issues, the Tribunal was not prepared to place weight on the medical evidence that he had provided (at [42]).  

12. The Tribunal accepted that:

    (a)the applicant discovered theft of his property by a neighbour in 2013 (at [44]);

    (b)the applicant had told the neighbouring family of the theft at their apartment (at [44]);

    (c)disclosure of the theft to the neighbouring family had caused ‘significant’ tension between them and the applicant. The Tribunal acknowledged that the theft caused the neighbouring family embarrassment, and the lack of response or restitution had left the applicant and his mother ‘dissatisfied and disappointed’ (at [44]);

    (d)the neighbouring family harassed the applicant and his mother, which constituted verbal abuse, verbal threats and minor damage to their property (at [44]);

    (e)during a tense confrontation between the applicant and the neighbouring family, the applicant fainted and was taken to hospital (at [44]);

    (f)the applicant’s religion may have been used as leverage in the harassment once the allegation of theft had been raised with them (at [46]);

    (g)the neighbouring family were attempting to protect their ‘honour or reputation’ (at [47]);

    (h)the primary purpose of the harassment was to drive the applicant and his mother out of the apartment building (at [47]);

    (i)the harassment made the applicant’s living circumstances difficult (at [49]).

13. The Tribunal did not accept that:

    (a)the applicant had been beaten by sticks or assaulted in any other way by the neighbouring family (at [43]);

    (b)the applicant had been threatened with knives or a pistol by the neighbouring family (at [43]);

    (c)the applicant and his mother had gone into hiding or stayed away from their apartment for extended periods of time (at [43]);

    (d)members of the neighbouring family had telephoned the applicant at his work and threatened him (at [43]);

    (e)the applicant’s religion was the ‘essential and significant reason’ behind the theft or conduct of the neighbouring family. The Tribunal noted that no persuasive evidence had been put forward regarding this claim (at [45]-[46]);

    (f)the neighbouring family construed the applicant’s allegations of theft as a ‘crime of honour’ committed against them. The Tribunal accepted that the neighbouring family were attempting to protect their ‘honour’ or reputation. However, the Tribunal observed that country information before it indicated that ‘honour crimes’ in Jordan were violent crimes carried out against girls or women for sexual indiscretion, or who had caused gossip related to sexual behaviour that dishonoured a family (at [47]-[48]).

14. The Tribunal was not satisfied that the conduct of the neighbouring family caused significant or serious harm to the applicant or his mother. The Tribunal was also not satisfied that the neighbouring family intended to act upon their threats. The Tribunal noted that following the harassment, the applicant and his mother continued to reside at the apartment for a further period of 12 months and up until their departure from Jordan. The applicant had also continued to work at the same workplace until shortly before his departure (at [49]-[50]).

15. The Tribunal found that there was no real chance or real risk the applicant would face serious or significant harm from the neighbouring family upon return to Jordan (at [50]). The Tribunal also found that, based on the country information before it, there was no real chance or real risk of the applicant facing serious or significant harm in Jordan based on his religion (at [51]-[52]).

16. Based upon the above, the Tribunal was not satisfied that the applicant was owed protection obligations under the Act (at [53]-[55]). Accordingly, the Tribunal affirmed the Delegate’s decision (at [56]).

    PROCEEDINGS BEFORE THIS COURT

17. The applicant commenced proceedings in this Court by an application filed on 15 February 2018, relying upon the following grounds:

    1.My fear of harm is genuine.  What happened to me and to my mother was a serious persecution because of our Christianity.

    2.The Tribunal Member misunderstood our claim and even though I admit that there may be some inconsistencies, which are minor, because of the length of time but my fear of harm is genuine.

    3.The Member of the Tribunal failed to understand the seriousness of the claim and that religion was the essential and significant reason behind the theft and the Tribunal failed to take into consideration the honour and reputation and the tribal Jordanian customs which, once understood, may give weight to our claim.

    4.Contrary to the Tribunal’s findings I was seriously threatened, abused and faced serious and significant harm at the hand of the tribal family.

    5.The Tribunal failed to consider all claims and failed to accept that I have been seriously harmed and I will be seriously harmed if I return to Jordan.

    Adjournment application

18. At the hearing of this matter, the applicant sought adjournment for an unspecified period in order to allow him to obtain legal representation. However, as was discussed with the applicant, proceedings in this matter have been ongoing for more than 4½ years. There was nothing before the Court to indicate why the applicant had been unable to secure legal assistance within this lengthy period of time. Nor was there anything to instil any confidence that the applicant would obtain legal representation if I adjourned the hearing for a limited period.

19. Whilst I am not unsympathetic to the difficulties faced by unrepresented litigants, ultimately I was not persuaded in these circumstances that it would be an appropriate use of my discretion to allow the adjournment that was sought. If I allowed a further hearing in this case, that hearing would be unable to be allocated to another applicant who may also have been waiting some years for adjudication of their matter.

20. I nonetheless explained to the applicant that I would be conscious of his lack of representation in the matter and would read the materials before me carefully. I assured the applicant that if I identified any material legal error in the decision or procedure of the Tribunal, then I would raise it regardless of whether it had been raised by him or by the Minister.

    Grounds raised by the applicant

21. The pleaded grounds and the matters raised by the applicant at hearing largely reasserted the applicant’s claims for protection and/or disagreed with the factual findings of the Tribunal. As I discussed at the hearing, however, this Court has no general power to substitute for the Tribunal’s decision its own views on the evidence or upon whether the applicant meets the criteria for a protection visa. What this Court can do is consider whether there is any legally relevant, material error in the procedure or decision of the Tribunal.

22. Ground 3 of the pleaded grounds contended that the Tribunal ‘failed to understand’ the seriousness of the applicant’s claims and that ‘religion was the essential and significant reason behind the theft’ he had claimed. Ground 2 similarly contended that the Tribunal ‘misunderstood’ the applicant’s claims. Misunderstanding of an applicant’s claims may, in some cases, demonstrate legally relevant error. However, I accept the submission of Ms Evans for the Minister that no such misunderstanding occurred in the present case.

23. There is nothing in the Tribunal’s decision to indicate that it misunderstood the applicant’s claims, as distinct from declining to find that they ought to be accepted and/or qualified the applicant for the grant of a protection visa. At [45]-[46] of its decision, the Tribunal considered but rejected the applicant’s claim that religion was the essential and significant reason behind the theft or the subsequent conduct by the neighbouring family. The Tribunal instead found that the thefts were opportunistic and motivated by financial gain. Whilst the Tribunal accepted that the applicant’s religion may have been seized upon to verbally abuse and threaten the applicant once confronted regarding the theft, the Tribunal did not accept that the family’s conduct was essentially and significantly motivated by religion. This was in circumstances where the applicant and his mother had resided in the same building for around 25 years without being subjected to serious harm on the basis of their religion.

24. Ground 3, and the applicant’s oral submissions, additionally contended that the Tribunal had failed to understand the relevance of honour and reputation within tribal Jordanian customs.  However, to the extent that this was raised on the material before the Tribunal it appears to have been considered by the Tribunal (at [47]-[48]). The Tribunal accepted that the neighbouring family were attempting to protect their ‘honour’ or reputation by forcing the applicant and his mother out of the building to avoid embarrassment from the theft allegations. However, the Tribunal did not accept that the family considered that a ‘crime of honour’ had been committed. Whilst this phrase had been used in the applicant’s written statement, it had not been further pursued by the applicant. The Tribunal had regard to country information indicating that the expression ‘honour crimes’ in Jordan related to violent crimes carried out against females in response to perceived violations of family honour. The applicant did not indicate any country information that he put before the Tribunal that was to the contrary, or that expanded upon his use of this terminology in a manner that was not considered by the Tribunal.

25. The Tribunal, therefore, does not appear to have misunderstood the applicant’s claims or evidence. Rather, it did not accept that they had the force he had contended.

26. Ground 5 generally contended that the Tribunal ‘failed to consider all claims’. The applicant did not, however, identify any claim that was made to the Tribunal that was not considered. This and the balance of the matters raised by the applicant appeared to seek to engage the Court in impermissible merits review. As explained above, this Court has no jurisdiction to conduct such a review.

    Non-disclosure certificate

27. At the hearing, I discussed the non-disclosure certificate referred to above with Ms Evans. The certificate does not appear to have been disclosed to the applicant prior to the Tribunal’s decision.

28. Ms Evans accepted that the certificate was invalid and was not disclosed. However, she submitted that any error associated with its non-disclosure was not material in the sense considered in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421. At [21] of its decision, the Tribunal accepted that the certificate was invalid. It observed that the relevant folios consisted of an identity verification form, case notes relating to the applicant’s visitor visa application, the Delegate’s written record of the applicant’s evidence at interview and a Disclosure Decision Checklist. As the Tribunal considered that the certificate was invalid, it proposed to treat those documents “in the usual way as if there was no certificate”.

29. Other than the interview record, the documents were of limited relevance to the Tribunal’s review. I accept that to the extent the Tribunal’s procedural fairness obligations (as set out in Part 7 of the Act) were enlivened by the material, they were complied with by the Tribunal. In the circumstances of this case, I do not see any reasonably arguable basis for finding that non-disclosure of the certificate deprived the applicant of the possibility of a successful outcome. I therefore accept that this does not provide any basis for setting aside the decision of the Tribunal.

    CONCLUSION

30. For the above reasons, the application must be dismissed.

31. I will hear from the parties in relation to costs. 

32          I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Laing.

Associate:

Dated: 09 November 2022