AST16 v Minister for Immigration
[2018] FCCA 1850
•10 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AST16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1850 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal’s decision was irrational – whether the Tribunal failed to carry out its review – whether the Tribunal failed to properly consider the applicant’s claims – whether the Tribunal made an error of the SZBEL type – whether the Tribunal made a finding for which there was no evidence – whether the Tribunal failed to properly consider the applicant’s complementary protection claims. |
| Cases cited: CDY15 v Minister for Immigration and Border Protection [2018] FCA 175 |
| Applicant: | AST16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 662 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 16 May 2018 |
| Date of last submission: | 16 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 10 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Georgina Costello |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the First Respondent: | Christopher Tran |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The decision of the Administrative Appeals Tribunal made on 9 March 2016 in matter number 1401498 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 662 of 2016
| AST16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is a citizen of Ethiopia. She entered Australia for the third time on 17 August 2012 on a tourist visa. She was here to visit her daughter. On 7 November 2012, the applicant applied for a protection visa.
The applicant’s first statutory declaration
The applicant claimed in her statutory declaration made on 13 December 2012 that:
a)because her father is Eritrean, she and her family were treated badly;
b)she was discriminated against in employment and denied other opportunities;
c)she joined the Ethiopian People’s Patriotic Front (“the EPPF”) in 2011;
d)the EPPF sought to change the government by force;
e)she was an EPPF spy;
f)she supported the EPPF by giving them money and by recruiting people;
g)the police came looking for her on 23 September 2012;
h)at that time, she was in Australia, visiting her daughter; and
i)she heard that other EPPF members were arrested.
Submissions to the delegate
By email dated 17 December 2012, the applicant’s adviser corrected certain errors in the applicant’s statutory declaration, none of which alter the summary above. She also said that she would prefer a Tigrinyan interpreter at the delegate’s interview, rather than an Amharaic interpreter, as previously requested.
The applicant’s adviser sent the delegate a submission dated 14 December 2012, in which the applicant highlighted her Eritrean descent and the problems that caused her.
The delegate’s decision
The delegate did not accept that the applicant was an EPPF spy or held a political profile that would create a real chance of her being targeted as an opponent of the Ethiopian government or for any other Convention reason. The delegate did not accept that the applicant was a credible witness. The delegate did not consider that the applicant was owed complementary protection.
The applicant’s second statutory declaration
The Tribunal invited the applicant to attend a hearing on 13 June 2014. The hearing invitation included a number of questions that the Tribunal identified as issues that might arise at the hearing.
The applicant made a second statutory declaration on 5 June 2014. It addressed issues raised by the delegate and in the Tribunal hearing invitation. In her second statutory declaration, the applicant claimed that:
a)prior to coming to Australia on her third tourist visa, she had been detained twice in Ethiopia;
b)the first time was when she was 25, that is, in about 1987;
c)she was at a friend’s house when the police raided it;
d)she was arrested and detained for 15 days and fined;
e)there were mass arrests of Tigrayans at that time and many assassinations of Tigrayans;
f)the second period of detention was in 1991, in the Ethiopian calendar, which the Tribunal understood to be about 1998 to 1999 in the Gregorian calendar;
g)the applicant did not know why she was arrested but thought it may have been because she was Eritrean;
h)she was held for five days and repeatedly raped;
i)the prison captain was called Getachew;
j)he offered to release the applicant early in exchange for sex;
k)he subsequently ate and drank at the applicant’s restaurant, but left without paying; and
l)the applicant relocated from her town to the capital, Addis Ababa, to avoid Getachew.
In her second statutory declaration, the applicant also discussed her ethnicity, explaining that she is a person of mixed Eritrean and Ethiopian descent.
The Tribunal’s hearings
The Tribunal conducted a hearing on 13 June 2014. The interpreter was Tigrinyan. Following the hearing, the Tribunal was reconstituted. The reconstituted Tribunal conducted a second hearing on 27 October 2015. The interpreter was again Tigrinyan.
The Tribunal’s reasons for decision
The Tribunal did not accept that the applicant was a credible witness and found that she had fabricated her claim that she was involved with a political opposition group. The Tribunal did not accept that the applicant was a spy for the EPPF or her related claims.
The Tribunal did accept that the applicant was arrested and detained twice. However, the Tribunal considered that the events of 1987 were no longer relevant to the way the applicant might be perceived today. The Tribunal accepted that the applicant was repeatedly raped in detention in 1998 or 1999. However, the Tribunal considered that these were opportunistic crimes. The Tribunal noted that the applicant had moved away from the town where these events occurred and considered that they did not create a real chance of the applicant being persecuted in the reasonably foreseeable future.
The Tribunal did not accept that the applicant faced a real chance of persecution as:
… a Tigrinyan / Eritrean / part Eritrean or the daughter of a Tigrinyan / Eritrean …[1]
[1] Paragraph 152 of the Tribunal’s reasons for decision.
The Tribunal did not accept that the applicant faced a real chance of suffering significant harm as defined in the complementary protection provisions.
Ground 1
The first ground of review in the application filed on 1 April 2016, amended on 31 January 2017 and further amended on 16 May 2018 is:
The Tribunal erred when it found that the applicant was “not Eritrean” or imputed to be so by others, “even though her ethnicity was Tigrinya”, in circumstances where she had claimed to be of mixed Eritrean/Ethiopian origin and that her mother was “Tigrayan”, not “Tigrinyan”, either by:
(a)acting with extreme irrationality;
(b)failing to carry out its review;
(c)failing to properly construe and consider the Applicant’s claims;
(d)breaching s 425 of the Migration Act 1968 (Cth) in the SZBEL sense; or
(e)making a finding for which there was no evidence.
This ground concerns the first bullet point in paragraph 147 of the Tribunal’s reasons for decision, which is as follows:
The applicant is not “Eritrean” or imputed to be so by others, even though the Tribunal accepts that her ethnicity is Tigrinya. The Tribunal does not accept that she could not get a job or that her own business suffered. The Tribunal does not accept that she has had her glasses broken, that she has been told to go “back” to Eritrea and that anybody in Ethiopia has discriminated against her on the basis of her actual or imputed ethnicity or nationality or because of her membership of her father’s family
The applicant claimed in her statutory declaration made on 13 December 2012 that:
2.… I consider my ethnicity to be Ethiopian. However, because my father is Eritrean and my mother Tigrinyan, people in Ethiopia consider me to be Eritrean and Tigrinyan.
…
4.I speak Tigrinya, which is the language spoken both in Eritrea and by Tigrinyans.
However, at the hearing before this court, the applicant submitted that the applicant’s claim in her statutory declaration to be Tigrinyan was a mistake. She said that her mother was actually Tigrayan. The applicant said during her second hearing before the Tribunal that:
my mother is from the Tigray ethnic group and my father is from the Eritrea.
Ground 1(a): irrationality
The applicant argued that the Tribunal’s finding that:
The applicant is not “Eritrean” or imputed to be so by others, even though the Tribunal accepts that her ethnicity is Tigrinya
was extremely irrational because the applicant claimed that her mother was Tigrayan, not Tigrinya. However, that submission fails to take account of the fact that the applicant herself claimed in her first statutory declaration to be Tigrinyan on her mother’s side. The applicant’s evidence on this point during the hearing was not expressed as a correction, but as an alternative version of the facts.
The Minister submitted, without dispute from the applicant, and I therefore accept, that Tigrinyans are of Eritrean ethnicity and Tigrayans are of Ethiopian ethnicity. Therefore, the applicant’s claim could ultimately be understood to be that she was of mixed heritage, being Eritrean/Tigrinyan on her father’s side and Ethiopian/Tigrayan on her mother’s side.
With that understanding, the Tribunal said that she was not “Eritrean” or imputed by others to be so even though she was of Eritrean ethnicity. The Tribunal did not say exactly why it did not accept that she was “Eritrean”. The Tribunal did not accept that the applicant’s claims about her political activities were credible and said that she fabricated them. However, those findings did not go to the applicant’s ethnicity.
Indeed, the Tribunal accepted that the applicant’s ethnicity was Eritrean/Tigrinyan. What the Tribunal did not accept was that the applicant was “Eritrean”. The Tribunal did not explain its use of quotation marks around the word Eritrean. However, it seems that the Tribunal meant that the applicant was not perceived to be Eritrean, even though she was.
As the Tribunal’s reasoning about the applicant not being “Eritrean” only applied to her political activities, I consider that the finding that she was not “Eritrean” has to be confined to the applicant’s political activities as well. That is, the Tribunal must be understood as accepting that the applicant is part Eritrean/Tigrinyan for the assessment of her other claims.
With this reading of the Tribunal’s reasons, the finding that the applicant was not perceived to be Eritrean but is in fact part Eritrean/Tigrinyan is both rational and correct. The applicant’s focus in relation to this sub-ground about her mother being Tigrayan is beside the point.
The Minister said that the Tribunal:
got the distinction between Tigrayan and Tigrinya (sic) wrong … .
However, the Minister submitted that the impugned finding was not irrational but a mere factual error within jurisdiction. The Minister noted that the applicant had herself, in her written claims, made a mistake about whether she was Tigrayan or Tigrinyan, and had failed to correct that particular error, even though she had corrected other errors in her statements.
Notwithstanding the Minister’s concession, I am not persuaded that the Tribunal did confuse Tigrayan and Tigrinyan. The analysis above makes sense of what the Tribunal said. There is no reason to conclude that the Tribunal was mistaken about this issue.
In any event, the Minister submitted that the Tribunal’s finding that the applicant is Tigrinyan was immaterial, because the crux of the applicant’s claims was that she was perceived to be Eritrean, and her claims did not depend on her being either Tigrinyan or Tigrayan.
That is correct. Moreover, the applicant did not point to any error that flowed from the Tribunal considering that the applicant was Tigrinyan rather than Tigrayan. The crux of the applicant’s claims was that she was Eritrean on her father’s side, and Ethiopian on her mother’s side. Subject to the discussion below, the Tribunal dealt with that issue.
Ground 1(a) is not made out.
Ground 1(b): failure to conduct a review
The applicant claimed that the Tribunal failed to conduct a review because it misunderstood the applicant’s claims. The applicant said in her written submissions that the Tribunal:
… did not properly properly construe her claims because it approached the evidence and claims as if the Applicant was Tigrinyan and Ethiopian, rather than that she was mixed Eritrean/Ethiopian and of Tigrayan/Eritrean ethnicity.
However, the various ethnic mixes put forward by the applicant are all the same. That is, the applicant is Tigrinyan/Ethiopian and Tigrayan/Eritrean. There is no substance to this ground.
In any event, in relation to this sub-ground, the Minister submitted that the applicant claimed that her difficulties stemmed from her Eritrean heritage, and the Tribunal considered that claim. The applicant conceded in her written submissions that it was the Eritrean part of her mixed heritage that caused her problems.[2] Subject to the discussion below, I accept that the Tribunal did consider the applicant’s Eritrean heritage.
[2] Paragraph 18
Ground 1(c): failure to consider claims
The applicant said in relation to this sub-ground that the Tribunal failed to deal with her claim that she was raped in detention possibly because she was Eritrean.
The Minister had three answers to this point. The first was that the material about the rapes was evidence, not a claim, and the Tribunal is not required to refer to every item of evidence. The second was that the Tribunal rejected the applicant’s credibility, so did not need to address the evidence in detail. The third was that the evidence went no higher than a suspicion, and the Tribunal was plainly aware of it, so it cannot be said that the Tribunal overlooked the evidence.
The Tribunal dealt with the rapes as follows:
149.The Tribunal further accepts that she was subjected to horrible violence and repeatedly raped around 1998−1999, as set out in paragraph 44 above. …
150.In relation to the events that took place in 1998−1999 in Adama, the Tribunal finds that the harm was perpetrated on her by someone in a position of power, who knew that she would be too terrified to tell anybody, even her own husband, what had happened. The appalling violence inflicted on the applicant more than 15 years ago was an opportunistic common crime, or more precisely a series of crimes. After the applicant was released from detention, the captain who had violated her kept coming to her restaurant and eating and drinking for free.33 That was cruel in the extreme, but an indication, that he was not interested in harming her further. Furthermore, some time after this, the applicant decided to move from Adama to Addis Ababa. These events from the late 1990s do not, in the Tribunal's opinion, create a real chance of persecution now or in the reasonably foreseeable future.
33 See applicant’s statutory declaration of 2014, at paragraph 14.
Although the Tribunal did not accept that the applicant was a credible witness in relation to her claims about the EPPF, the Tribunal did accept the applicant’s claims about being raped. That is, her claims about being raped were not simply evidence that could be disregarded. The rapes were established fact for the purposes of the Tribunal’s reasoning.
The Tribunal found that the rapes were opportunistic crimes. That finding was probably open to the Tribunal. It is not unreasonable to think that prison guards might opportunistically rape female prisoners, or male prisoners for that matter.
However, there is nothing in the Tribunal’s reasoning in paragraphs 149 or 150 of its reasons for decision that explains why the applicant was in detention and at the mercy of prison guards in the first place. On my reading, the Tribunal’s reference to opportunistic crimes related to the rapes themselves, not the detention as such.
The applicant said in her second statutory declaration in relation to this matter that:
11.I was not told the reason that I was arrested nor can I say with certainty that it was anything to do with my Eritrean heritage but there was another woman in the same cell. She was also taken away from the cell for questioning, and was distressed when she was returned to the cell, but we didn’t talk about it. I did not know her, but after my release I made enquiries and learned that she was Eritrean and her family came from our area. I would not have been surprised if she was also being raped when she was taken from the cell. We would not have felt comfortable speaking of these things as it not in our culture to do so.
12.The war between Eritrea and Ethiopia was going on at the time of my arrest. I was known in the area as the daughter of an Eritrean man and Eritreans would come to eat at my restaurant. I believe I may have been targeted because they thought I might be involved with the Eritreans but I cannot be sure of this. I was not involved; I was concentrating on my business.
13.My husband tried to get me released, but was unsuccessful. He paid a lot of money in bribes, but they would still not release me. I don’t know why I was finally released.
Clearly, the applicant was raising a claim, albeit in a somewhat circuitous manner, that she was detained because she was Eritrean.
The Tribunal dealt with the rapes while the applicant was in detention on the basis that they were a personal matter between the prison captain and the applicant. The Tribunal considered that the captain was not interested in hurting the applicant further because he merely ate and drank in her restaurant without paying. The Tribunal also noted that the rapes had occurred 15 years ago, and the applicant had moved from the town where they occurred to the capital.
However, the Tribunal’s reasoning in that regard does not address the claim that the applicant was detained in the first place because she was Eritrean. The Tribunal did not say in paragraph 150 of its reasons for decision that there was no longer a real chance of the applicant being detained. The Tribunal’s reasoning in paragraph 150 of its reasons for decision only dealt with the chance of being raped by the prison captain, rather than the chance of the applicant being detained because she is Eritrean.
The Tribunal noted in paragraph 44 of its reasons for decision, after summarising the applicant’s claims about being detained and raped, possibly because she was Eritrean, that there was a war between Eritrea and Ethiopia at the time of the detention and rapes. However, the Tribunal did not return to that note and use it as a basis for concluding that the applicant did not face a real chance of being detained in the future.
However, the Tribunal did find, in paragraph 147 of its reasons for decision, that:
The applicant is not “Eritrean” or imputed to be so by others … .
That finding, if unimpeached, would be sufficient to found the conclusion that the applicant does not face a real chance of being detained and raped because she is Eritrean. Obviously, the applicant did seek to impeach that finding.
As discussed above, the Tribunal’s reasoning that the applicant was not “Eritrean” only concerned her political activities. Otherwise, the Tribunal accepted that the applicant was Tigrinyan, which, as the Minister accepted, means Eritrean.
Therefore, the Tribunal failed to consider whether the applicant faced a risk of being detained in the future because she is an Eritrean/Tigrinyan. The Tribunal thereby fell into jurisdictional error.
Ground 1(d): SZBEL
The applicant argued that the Tribunal did not alert the applicant to the possibility that it would find that she was not Eritrean or perceived to be so, in circumstances where the delegate accepted that she was of mixed Eritrean and Ethiopian descent: CB130.
The Minister argued that this sub-ground took too narrow a view of the Tribunal’s reasons, which were that nobody had discriminated against her because of her actual or imputed ethnicity, and which was the same view taken by the delegate.
However, the Minister’s submission failed to recognise that the Tribunal reached its conclusion by a process of reasoning that included the critical step that the applicant was not perceived to be an Eritrean.
As that process of reasoning was different to the delegate’s, and as it involved a different critical step, the Tribunal was obliged to alert the applicant to the possibility that the Tribunal might find that the applicant was not perceived to be an Eritrean. This sub-ground is made out.
Ground 1(e): no evidence
The applicant argued that there was no evidence that she was not perceived as being of mixed Eritrean/Ethiopian origin.
However, the evidence supporting that conclusion was the evidence relating to the applicant’s credibility in relation to her claims to be a spy for the EPPF and the related claims. But, as discussed above, that evidence and reasoning only applied to the applicant’s political claims.
The Tribunal did accept, in fact, that the applicant was Tigrinyan/Eritrean, and it is implicit in the Tribunal’s reasons that it also accepted that she is Ethiopian. However, as discussed above, the Tribunal did not put forward any reasoning, and therefore did not find, that the applicant was not perceived to be Eritrean in relation to the chance of her being detained. The problem with this was not a no evidence issue, but the problems as discussed above.
There is no substance to this sub-ground.
Ground 2
The second ground of review in the application filed on 1 April 2016, amended on 31 January 2017 and further amended on 16 May 2018 is:
The Tribunal failed to carry out its review, or failed to consider claims, when it failed to properly, genuinely and realistically consider whether the Applicant had complementary protection claims in line with s36(2)(aa).
The Tribunal dealt with the applicant’s complementary protection claims as follows:
167.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
168.For the reasons set out above, the Tribunal is not satisfied that the applicant would be of any adverse interest to the authorities in Ethiopia. There are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ethiopia, there is a real risk that she will suffer significant harm for any reason.
The applicant relied on SZSFK v Minister for Immigration and Citizenship [2013] FCCA 7, where Judge Driver said:
90. The problem with this reasoning is that the Reviewer makes no attempt to distinguish the different tests posed by s.36(2)(a) and s.36(2)(aa). This is particularly problematic in the present case, where the Reviewer has accepted claims of detention and assault, but rejected a number of the claims on the basis of the absence of a Convention nexus or for some other reason peculiar to the Convention.
In oral submissions, the applicant very properly drew to the court’s attention the decision of CDY15 v Minister for Immigration and Border Protection [2018] FCA 175 at [22], where Derrington J expressed disagreement with certain comments made by Judge Driver in [91] of SZSFK. However, that criticism does not impact on paragraph 90 of SZSFK, which is set out above.
The Minister submitted that the Tribunal’s reasoning on complementary protection was justifiably brief, because the Tribunal made a wholesale rejection of the applicant’s credibility and did not accept that people would perceive her as Eritrean.
However, as discussed above, the Tribunal did not reject the applicant’s credibility in relation to her detention and rapes, and the reasoning relating to people not perceiving the applicant as Eritrean only related to political matters.
Consequently, there were gaps in the Tribunal’s reasoning on the Convention grounds. Accordingly, by simply referring to that reasoning, the Tribunal did not deal with all of the complementary protection claims. The Tribunal thereby fell into jurisdictional error.
Conclusion
As some of the applicant’s grounds have been made out, the Tribunal’s decision must be set aside, the matter must be remitted to the Tribunal for determination according to law. I will hear the parties on the question of costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 10 July 2018
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