AWT16 v Minister for Immigration

[2017] FCCA 1486

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWT16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1486

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Application for a Protection Visa – adverse findings made were open to the Tribunal – the adverse findings made were not unreasonable given the credibility findings – no jurisdictional error identified – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, rr.11.11, 11.13

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 476

Cases cited:

SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90

Applicant: AWT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 915 of 2016

Judgment of: Judge Street

Hearing date: 28 June 2017

Date of Last Submission: 28 June 2017

Delivered at: Sydney

Delivered on: 28 June 2017

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Firmstone & Associates

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Pursuant to r.11.11 of the Federal Circuit Court Rules 2001, the Court appoints AWT16F being the applicant’s father as the litigation guardian for the applicant known by the pseudonym AWT16 and the Court dispenses with the requirements of rr.11.11(2) and 11.13 of the Federal Circuit Court Rules 2001.

2. The litigation guardian be known by the pseudonym AWT16F.

3. There be no publication or recording of the name of AWT16F and that the litigation guardian be described by that pseudonym in order 1 made above.

4. The application is dismissed.

5. AWT16F pay the first respondent’s costs fixed in the amount of $5,300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 915 of 2016

AWT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 March 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant, who was a very young child, was found to be a citizen of Lebanon and her claims were assessed against that country.

3. At the commencement of the hearing, the applicant’s father who has earlier made unsuccessful applications for protection together with his wife and his eldest daughter, was appointed the litigation guardian on behalf of the applicant for protection.

4. The feared harm advanced on behalf of the applicant is that she would be subjected to female genital mutilation (“FGM”) in Lebanon. Part of the claim advanced by the litigation guardian before the Tribunal on behalf of the applicant, was that the grandparents would gain custody over the applicant because they disapproved of the litigation guardian’s conversion to Christianity and would subject the applicant to FGM.

The delegate’s decision

1. On 5 November 2014 the delegate declined to grant the applicant a protection visa having found that the applicant failed to meet the criteria under the Migration Act. Part of the reasoning of the delegate expressly referred to the applicant having an elder sister and that the parents’ current claim that FGM is commonly and customarily performed on all girls in their family and local areas. The delegate observed that the parents did not submit any claims in that respect when they applied for her protection in May 2012.

2. The delegate referred to a differently constituted Tribunal before which the father appeared to give evidence and that he did not submit claims that he holds fears that the elder daughter will be forcibly subjected to FGM. The delegate observed that this inconsistency raised concerns in respect of the overall credibility and veracity of the claims submitted on behalf of the applicant in this application and that this was put to the litigation guardian at the interview.

3. The delegate noted that the litigation guardian said that the protection visa application was lodged two years ago and alleged that the elder sister was deemed too young, as FGM is performed when a girl turns three and a half years of age. The delegate was unable to accept that testimony as credible as there are no country reports to corroborate that FGM is widespread in Lebanon and/or performed traditionally on girls of that age group. Further, the delegate observed that if that was the case, it is questionable why the parents did not submit this claim before the differently constituted Tribunal in May of 2013, when the applicant’s sibling was three years of age.

4. The delegate also did not accept that the reason the father did not submit FGM claims on behalf of the sister in 2012 and 2013 was because she was too young, given that he submitted the FGM claims on behalf of the applicant in the present case when she was only 17 days old. The delegate also observed that the applicant’s father claimed that his family will subject the daughter to FGM, in circumstances where he voluntarily returned to Lebanon in March 2012 with his wife and the elder daughter to his home area where his parents and in-laws reside. The delegate found that this indicated that the applicant’s father had no fears for his daughter’s wellbeing and this was put to the father at the interview. The applicant’s father stated at that time, that the elder sister was very young then. The delegate did not accept the father’s response as credible.

5. The delegate found the fact that the litigation guardian voluntarily returned to Lebanon with his wife and the elder daughter suggests that he had no fear of harm for his family for any reason.

The Tribunal’s decision

1. The applicant applied for review on 14 November 2014. With the application for review, the applicant gave the Tribunal a copy of the decision of the delegate for the purpose of the application for review, within the meaning of s.424A(3)(b) of the Migration Act.

2. The applicant’s father, the litigation guardian, on behalf of the applicant was invited to attend a hearing and the parents attended on 11 March 2016 to give evidence and present arguments. The parents of the applicant confirmed they were giving evidence on behalf of the applicant, that she is only a young child and was unable to give evidence. The applicant was also represented in relation to the review application by her registered migration agent.

3. The Tribunal identified the applicant’s background and correctly identified the relevant law in the attachment to the decision. The Tribunal did not accept any of the protection claims made on behalf of the applicant. The Tribunal did not accept that the applicant’s parents are truthful witnesses and considered it evident that all of the claims have been fabricated following the refusal of the applicant’s parents and sister’s own application for protection, in which the applicant’s father claimed to have converted to Christianity which would result in him being harmed upon his return. 

4. The Tribunal did not accept that the applicant will be taken from her family members in Lebanon due to the applicant’s father’s conversion, or that she will be forcibly subjected to FGM. The Tribunal did not accept any of the claims made by the applicant’s parents on her behalf.

5. The Tribunal concluded that the claims that the applicant would be forcibly taken by her grandparents due to the father’s conversion to Christianity and that then the applicant would be subjected to FGM, have been manufactured in an attempt to provide a basis for remaining in Australia following the failure of a previous application.

6. The Tribunal provided reasons in support of the adverse credibility findings and observed that in addition to the fact that the independent evidence does not support the applicant’s claims, the Tribunal considered that there are significant problems in relation to the applicant’s father’s claims of fear in relation to the daughter. The Tribunal noted that the applicant’s father gave oral evidence to both the Department and the Tribunal in his own application for protection in which his wife and elder daughter were included, and yet he did not claim that the elder daughter would be subject to FGM upon her return to Lebanon. 

7. The Tribunal noted the applicant’s father’s eldest daughter was approximately two years of age at the time the application was launched, and almost a year older when the review of the delegate’s decision refusing to grant the protection visa was lodged with a differently constituted Tribunal. The Tribunal did not accept the applicant’s father’s explanation as to why claims relating to FGM were not raised in the previous application. The Tribunal found that if the applicant’s parents had any fear at all for their elder daughter or concern that she would at some stage, be subject to FGM, that they would have made claims in relation to that matter.

8. The Tribunal found that the applicant’s parents’ failure to raise this issue in their own application for protection is indicative of the fact that they have manufactured this claim, following the refusal of their application for protection. The Tribunal found that the evidence of father as to how he knows his parents will want to obtain custody of his children and subject them to FGM was vague and unpersuasive and indicative of the fact that the claims had been manufactured.

9. The Tribunal accepted that the applicant’s father registered himself and his eldest daughter as Christians when they returned to Lebanon and the Tribunal found that the father did so for the reason of trying to fabricate claims in the present application. The Tribunal did not accept that the applicant’s father is baptised or registered his conversion for any other reason than to obtain documentation to support his claims for protection upon his return to Australia.

10. The Tribunal also made reference to finding the applicant’s evidence in relation to practice of Christianity in Australia to be unpersuasive and indicative of the fact that he had not genuinely converted and that his conversion was in name only.

11. The Tribunal observation as to the limited knowledge of the applicant’s father about the names of the churches he attended or the name of the priests and found this was indicative of the fact that the applicant’s father had manufactured his claims to have genuinely converted to Christianity and to being a practising Christian. 

12. The Tribunal also considered the father’s evidence as to why he has not baptised his eldest daughter, yet registered her as a Christian, to be similarly unpersuasive. The Tribunal observed that it does not accept the father’s evidence as to FGM and considers that his claims in relation to Christianity and attempts by his family or his wife’s family to gain custody of the children due to his conversion have been fabricated.

13. The Tribunal did not accept that the fact that the father was baptised and registered himself and his eldest daughter as Christians establishes that they will be viewed as Christians. The Tribunal considered that the applicant’s father and mother would be viewed as Sunni Muslims and that the family would continue to be viewed as Sunni Muslims upon their return. The Tribunal accepted that their families know about the conversion but did not accept the submission that they would be abused as Christians or apostates by their families.

14. The Tribunal was of the view that the applicant’s parents’ family members are undoubtedly aware that the applicant’s father and the applicant’s sister are not genuine converts and that their conversions were registered for the purpose of making false claims for protection in Australia.

15. The Tribunal did not accept that anyone in their community will know about the conversion or, that even if they do, they will consider the applicant’s father and family members have genuinely converted to Christianity. The Tribunal did not accept that the applicant or her family members will be perceived as Christians by her family or the community or that they will be harmed due to the applicant’s father registering his or the applicant’s sister’s religion as Orthodox or as a result of the father’s baptism in Lebanon in 2012.

16. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if she returns to Lebanon now or in the reasonably foreseeable future.

17. The Tribunal was not satisfied there are substantial grounds for believing, that as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon there is a real risk the applicant will suffer arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

18. The Tribunal found that the applicant failed to meet the criteria under s.36(2)(a) and s.36(2)(aa) of the Migration Act and affirmed the decision under review.

Before this Court

1. The grounds in the application are as follows:-

   Ground 1

   1. The Tribunal made a jurisdictional error by failing to put information to the Applicant in accordance with ss 424A or 424AA of the Migration Act 1958 (Cth) (Act).

   Particulars

   a. At paragraph 22 of its reasons for decision, the Tribunal refers to oral evidence given by the Applicant's father to the Department of Immigration and Border Protection and the Refugee Review Tribunal.

   b. The evidence, by failing in its terms to include a reference to possible female genital mutilation, undermined the Applicant's case for a protection visa and was “information" within the meaning of s 424A( 1) of the Act;

   c. The information was not excluded by s 424A(3) of the Act;

   d. There is no indication, particularly in the Tribunal's decision, that the Tribunal put the information to the Applicant in accordance with s 424A of the Act.

   Ground 2

   2. The Tribunal made a jurisdictional error by making a judicially reviewable error in relation to matters of fact.

   Particulars

   a. At paragraph 25 of its reasons for decision, the Tribunal found that the family members of the parents of the Applicant “are undoubtedly aware that the applicant’s father and the applicant’s sister are not genuine converts and their conversions were registered for the purposes of making false claims for protection in Australia.”

   b. At paragraph 25 of its reasons for decision, the Tribunal did “not accept that anyone in their community will know about the conversion or that even if they do they will consider that the applicant’s father and family members have genuinely converted to Christianity.”

   c. There was no evidence for these findings and, in any event, they were not reasonably open to the Tribunal.

Consideration

Ground 1

1. In relation to ground 1, this is a case where no transcript was tendered in support of the alleged non-compliance with s.424A and s.424AA of the Migration Act. Mr Jones of counsel argued that as there was no reference in the Tribunal’s summary of the hearing before it to any step taken to comply with s.424AA of the Migration Act, the Court could infer that there was no attempt at compliance with that provision. The Court is not prepared to draw that inference and in a case where the issue raised is whether there has been compliance with s.424A or s.424AA of the Migration Act, the transcript is necessary evidence for the applicant to succeed.

2. Further, in the present case, the relevant information is identified as the failing of the father to include possible FGM for the applicant’s sister in the father’s application for protection. I do not regard this as being evidence that enlivens any obligation under s.424A of the Migration Act.

3. I accept the submission of the first respondent that in the present case although skilfully presented, the absence of the claim being advanced by the father of FGM for the applicant’s sister is one of an absence of information of a kind that does not fall within s.424A of the Migration Act and that this Court is bound by the decision in SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 at [11], [103] and [134].

4. Further, even if the information was of a kind enlivening any obligation under s.424A of the Migration Act, it is one in respect of which that information was identified in the delegate’s reasons and the delegate’s reasons were information that the applicant gave for the purpose of the application for review within the meaning of s.424A(3)(b) of the Migration Act.

5. To the extent that there is reference by the Tribunal in paragraph 22 as to the applicant’s father giving oral evidence to the Department and the Tribunal in his own protection application, where no claim is advanced that the sister would be subject to FGM, this was reasoning in relation to credit and does not enliven any obligation under s.424A of the Migration Act. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, Mr Jones of counsel submitted that the Tribunal’s reasoning in relation to other members of the family knowing that the father and elder sister were not genuine converts was not a rational or logical basis upon which the Tribunal could then find that it did not accept that anyone in the community would know about the conversion. 

2. It was submitted that there was a similar issue in relation to the Tribunal’s reasoning that even if community members would not consider that the applicant’s father and family members had genuinely converted to Christianity. Mr Jones of counsel argued that the Tribunal in making those findings, was filling gaps in factual material by guessing, rather than drawing inferences that were open from the material. In the circumstances of the present case, the adverse findings by the Tribunal in relation to the alleged fear from the father and daughter’s registration of conversion to Christianity and whether known by the community, and that if known, it would not be regarded as a genuine conversion to Christianity were open to the Tribunal. The adverse findings made were not unreasonable given the credibility findings.

3. This was a case where the Tribunal made findings as to the fabrications advanced in the claims on behalf of the applicant, and rejected in substance the claims in their entirety. The adverse reasoning, the subject of the alleged jurisdictional error in ground 2, is rational and logical and does not reflect impermissible speculation or guesswork.

4. Ground 2 is in substance an invitation to this Court to engage in an impermissible merits review in respect of adverse findings of fact. No jurisdictional errors are made up by ground 2. 

Conclusion

1. The application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 August 2017