AXA16 v Minister for Immigration
[2016] FCCA 2922
•17 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXA16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2922 |
| Catchwords: MIGRATION – Whether conclusion reached by Tribunal was open – whether failure to consider the effect of foreign legislation can amount to a jurisdictional error – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36(2A) |
| Applicant: | AXA16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 344 of 2016 |
| Judgment of: | Judge Vasta |
| Hearing date: | 10 November 2016 |
| Date of Last Submission: | 10 November2016 |
| Delivered at: | Brisbane |
| Delivered on: | 17 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Egan & Mr Plunkett |
| Solicitors for the Applicant: | Fisher Dore |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application filed on 15 April 2016 as amended on 31 October 2016 be dismissed.
The Applicant pay the First Respondent’s cost of and incidental to the proceedings fixed in the sum of $7206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 344 of 2016
| AXA16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 15 April 2016, the Applicant filed an application in this Court for judicial review of a decision of the Administrative Appeals Tribunal (“AAT”) that affirmed an earlier decision of the delegate of the Minister to refuse to issue a protection Visa to the Applicant.
The matter came before me on 10 October 2016, where the Applicant sought leave to amend the application to add a further ground. I allowed that application and the Applicant then filed an amended application on 31 October 2016. The matter was then heard by me on 10 November 2016.
The Applicant is a citizen of Papua New Guinea (“PNG”). He came to Australia on a transit Visa in December 2011. He applied for a protection Visa on 15 March 2012. The department conducted interviews with the Applicant which led to a decision in April 2013 refusing to grant the protection Visa.
The Applicant sought judicial review of that decision. By consent, the matter was remitted back to the delegate for decision in January 2015. The Department reinterviewed the Applicant and made a similar decision not to grant the Applicant to a protection Visa.
The Tribunal heard the review application on 29 February 2016 and on 22 March 2016 affirmed the decision. It is from that latter decision that the Applicant seeks the present relief.
Background
The Applicant was 33 years old when he appeared before the AAT. He claims that he has a fear of harm from members of the PNG government, or corrupt police, or bodyguards, thugs, supporters or lawyers that will act at the behest of those members of the PNG government.
This fear stems from the Applicant’s activities online. He claims to have exposed and disseminated online information relevant to government corruption and police misconduct. He fears that he will be assaulted if he is returned to PNG. He fears being sued for defamation if he returns to PNG. He fears being charged with offences under the “National Information and Communications Technology Act 2009” (“NICT Act”). He fears being charged under a proposed cybercrime policy drafted by the NICT authority.
The Claims of the Applicant
The Tribunal had before it a large amount of material that showed that the Applicant had been both active and vocal in political issues. The topics that he covered included climate change, women’s rights, youth rights, human rights, police misconduct and government corruption. He has attended international forums and training courses across the Pacific and in South East Asia. The AAT accepted that the Applicant was a vocal and passionate advocate for those issues in which he has shown an interest. His activism is predominantly conducted online. The Tribunal noted that the Applicant described himself as a “blogger” but not a journalist.
The Applicant is currently one of the administrators of three Facebook pages on the topic of politics in PNG as well as having Facebook pages of his own using three different identities. The Tribunal had before it the Facebook pages in question which were political in nature and generally critical of the PNG government.
The Tribunal heard from the Applicant and from a Dr Logan. Dr Logan explained to the Tribunal the important role social media has developed in PNG and that there has become a perceived hardening of the attitude of the PNG government towards online activities. She explained to the Tribunal that this resulted in the use of the NICT Act to charge some persons with offences. She opined that the government had created a threatening environment for users of social media particularly those who are critical of the government. Dr Logan was of the belief that the Applicant was at risk of harm if he were to return to PNG.
The Tribunal looked at a deal of country information as well that corroborated the view that there has been a hardening in the political climate towards online criticism of the government.
The Findings of the Tribunal
The Tribunal dealt with each of the applicant’s claims. As to his fear of retribution from government ministers, the Tribunal noted that there were no other Facebook administrators who had been assaulted or harmed in PNG. When asked why, if no other Facebook administrators were being harmed, he would then be targeted for harm, the Applicant said that he had a fear that “anything could happen”.
With respect to defamation proceedings, the Applicant provided a letter, from a lawyer representing a political leader, where there was a threat to sue all the administrators of a Facebook page if a certain posting was not removed from the Facebook page. The Tribunal noted that defending defamation claims could be costly and distressing but it was not a form of “serious harm”. The response by the Applicant was that he was unsure that he would receive a fair trial from the PNG Judiciary.
With regard to the use of the NICT Act, the Tribunal discussed with the Applicant the reason for the enactment of such a piece of legislation. The Applicant acknowledged that he always strove to ensure that what he posted was lawful. The Tribunal noted that the proposed cybercrime policy had not yet passed and therefore was not yet law. The Applicant reiterated that he felt he would not receive a fair trial because his rights would not be protected by the courts of PNG.
It was at this point that the Tribunal put to the Applicant that it was aware that judges of the Federal Court of Australia sat on the Supreme Court of Papua New Guinea. Country information was that the judiciary of PNG was generally well regarded. The Applicant reiterated his claim that he would be subject to physical harm during the process of being arrested or facing Court but he had to concede that none of his co-administrators had been so harmed in defending defamation claims that have been made against them.
In post-hearing submissions, the migration agent appearing for the Applicant gave the Tribunal Facebook page printouts to show that the Applicant was a coordinator of all the Facebook pages that he had mentioned during the hearing as well as two other pages that he had not mentioned.
Attached to the submissions were printouts from the largest Facebook page which showed the Applicant has been the person who posted the extracted information that had been given to the Tribunal. It was noted by the Tribunal that that Facebook page was from a closed group (which would mean that it is not easily accessible by any member of the public; only those invited to be a member of the closed group could see the particular post).
The Tribunal went on to find that there was “no well-founded fear of persecution for any convention reason or combination of reasons now or in the reasonably foreseeable future if the applicant returned to PNG”. Therefore he did not satisfy the requirements of the convention criteria.
Similarly, the Tribunal went on to find that there is “not a real chance that the applicant will suffer any serious harm… if he were to be removed to PNG”.
Grounds of this Application
In both the original application, and the amended application, the Applicant relies on the following “grounds”. Even a casual perusal would show that they are not all truly “grounds”. They are as follows:-
“1. The Respondent made findings that:
(a) the Applicant is a credible witness;
(b) accepted that the Applicant is:
(i) a political activist campaigning against corruption and misconduct in Papua New Guinea (PNG);
-government;
-police
(ii) an on-line blogger publically campaigning against corruption and misconduct in the PNG government and PNG police;
(iii) has published a lot of online commentary critical of PNG corruption and misconduct;
(iv) is a vocal and passionate advocate;
(v) is not a journalist.
(c) PNG government:
(i) has created a threatening environment for users of social media critical of the government;
(ii) hardening attitude of the PNG government towards:
-not only journalists;
-but also online political activists, such as the Applicant
(d) as to public protest in PNG:
(i) there is violence by police beatings or protesters;
(ii) the Applicant:
-attended protests in PNG;
-organised protests in PNG;
-by on-line means arranging protests in 2012 and another in 2013 where protesters were injured by police in 2013;
(e) Dr Logan’s material in support of the Applicant:
(i) was credible;
(ii) the Applicant’s on-line media was the first and third largest on PNG politics;
(iii) the PNG had drafted the NICT Act and had a 2014 cyber crime police to be used against on-line activities;
(iv) the PNG government had created a threatening environment for users of social media particularly those who are critical of the government including the Applicant;
(v) the Applicant is at risk of harm if he returned to PNG;
(f) accepted the applicant has a genuine subjective fear of returning to Papua New Guinea.
2. The Applicant’s claim is required to be assessed as a PNG citizen against PNG for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).
3. The Respondent erred by finding it was not satisfied on the evidence before it that there is a real chance the Applicant will face persecution from the Ministers or persons at the behest of the Ministers due to the applicant’s political opinion opposed to corruption and police misconduct.
4. The Respondent erred in finding that all of the country information regarding journalists is of limited relevance to the applicant given he does not regard himself as a journalist.
5. The Respondent erred by creating an impermissible and artificial distinction between journalists and on-line bloggers.
6. The Respondent erred by
(a) by restricting Article 1A(2) to a particular social group or political opinion to journalists;
(b) by excluding from Article 1A(2) a blogger and administrator of a Facebook page about politics in Papua New Guinea regarding the topics of corruption and police misconduct.
7. There was no evidence that indicated the Ministers or the Papua New Guinea government generally are not targeting online political activists such as the Applicant for serious harm of any nature either through engaging corrupt police, thugs or supporters.
8. The Respondent erred in not being satisfied on the evidence before it that there is a real chance the applicant will face persecution from the Ministers or persons at the behest of the Ministers due to the applicant’s political opinion opposed to corruption and police misconduct.
9.The Respondent did not consider whether there is a real chance the Applicant will face persecution from the Police or persons at the behest of the Police due to the applicant’s political opinion opposed to corruption and police misconduct.
10. The Respondent did not consider whether there is a real chance the Applicant will face persecution from the Police or persons at the behest of the Police due to the applicant’s participation in protests and organizing protests.
11. The decision of the Respondent was made against all of the evidence which was one demonstrating that the Applicant faced serious harm from persecution by PNG Ministers and PNG police for his political beliefs and political activities as a blogger if he returned to PNG.
12. The decision of the Respondent was tainted with Wednesbury unreasonableness.
13.The Second Respondent failed to have regard to the penal provisions of the Defamation Act (Chapter 293) of PNG when considering whether the commencement or likely commencement of defamation proceedings against the Applicant would give rise to a reasonable and well-founded fear of persecution, or the infliction of serious harm, or alternatively significant harm if he was returned to PNG.”
Notwithstanding the way in which the “grounds” are drafted, I have treated them as if the ground were as follows:
“On the whole of the evidence before the tribunal, it was not open for the tribunal to conclude that the tribunal was not satisfied that the applicant had fulfilled the criteria of either the convention protection or the complementary protection”.
I have treated what is written in the “grounds” as if they are particulars of that one ground.
What the Tribunal must be satisfied of in respect of the Applicant
A protection Visa will be given to someone whom the Minister (or the AAT) is satisfied that Australia has protection obligations pursuant to the Refugees Convention. The relevant part of that convention states:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection that country”.
If that criterion is not satisfied, then the Minister (or the AAT) must consider whether “Australia has protection obligations because the Minister has substantial grounds for believing that, as are necessary and foreseeable consequence of the noncitizen being removed from Australia to (PNG) there is a real risk that the noncitizen will suffer significant harm”. Significant harm defined in s.36(2A) of the Migration Act 1958 (Cth) (“the Act”) as:
“(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.”
Discussion
One of the findings of the Tribunal was that it accepted generally the claims of the Applicant however concluded that the threat of harm had been “exaggerated”. The Tribunal seemed to accept that the Applicant did have a “fear of being persecuted” but that such fear was not “well founded”. The Tribunal, in effect, found that there was no real risk that the Applicant would suffer significant harm if he were removed back to PNG.
The Applicant submits that it was simply not open for the Tribunal to find that the “fear” that the Applicant had was not “well-founded”. The Applicant further submits that it was not open for the Tribunal to find that there was “no real risk” that the Applicant would suffer significant harm if he returned to PNG.
The problem for the Applicant is that he has not been able to point to any evidence that would cast any doubt on the findings of the Tribunal, let alone lead this Court to find that such findings could never have been made.
It was the Applicant’s own evidence that he did not know any other Facebook administrators who had been assaulted or harmed. It was also the Applicant’s own evidence that when he had first exposed information related to corruption and police misconduct on two occasions, he had not incurred any harm.
Therefore, it is difficult to say that a fear of being harmed because of involvement in certain activities is well founded, if others, involved in the same activities, are not harmed. It is also difficult to say that a fear of being harmed because of involvement in certain activities is well founded, if, having been involved in those activities in the past, has not led to harm being visited.
Just on that point alone, the findings of the Tribunal were open. Therefore there could not be a jurisdictional error on this ground.
Other contentions
The Applicant raised a number of “particulars” with regard to his “grounds”. By and large, these did not have much weight but I will mention these for completeness.
The Applicant pointed to the fact that Dr Logan had opined that “the applicant is at risk of harm if he was to return to PNG”. The Tribunal noted that they were “largely impressed by the evidence of Dr Logan”. But that does not mean that the Tribunal has accepted that the Applicant was at risk of harm if he was to return to PNG. Being “largely impressed” does not mean “accepting of”. There is nothing in the reasons of the Tribunal that would point to the Tribunal accepting the evidence of Dr Logan on that point.
The Applicant pointed to the Tribunal making a distinction between “bloggers” and “journalists”. There is nothing in this point. In the end, the country information relied upon by the Tribunal was to the point that there was a hardening of the stance against anyone who was using social media to criticise the government. Even if there were a mistake made by the Tribunal in this respect, it could not amount to a jurisdictional error.
The Applicant submitted that “there was no evidence that indicated ministers or the PNG government generally were not targeting online political activists such as the applicant to serious harm of any nature either through engaging corrupt police, focus or supporters”. The Tribunal looked at country information and found that there was no evidence that persons such as the Applicant were being targeted. This was a finding that was open.
In the end, the contentions of the Applicant were merit-based. The question for this Court to decide is not whether the Tribunal should have made the decision it made, but rather whether it could have made the decision it did. Clearly in this case the Tribunal could have made the finding is that it made and therefore there is no jurisdictional error.
The Defamation Act
This aspect was the final “ground” upon which the Applicant wished to rely and was the reason I granted leave to amend the application on 10 October 2016. The Applicant submits that the consequences of the PNG Defamation Act were not considered by the Tribunal. The Tribunal talked about the consequences of defending a defamation action but not the consequences of an unsuccessful defence.
The Applicant points to the Defamation Act having a provision that would allow a person who has defamed another, to be jailed. As the Tribunal did not consider this, the Applicant submits that this is a jurisdictional error.
I do note that this aspect of the Defamation Act was not provided to the Tribunal. The provisions of the NICT Act were provided to the Tribunal. It was pointed out to the Tribunal that contraventions of the NICT Act included imprisonment but it was not pointed out to the Tribunal that such consequences also flowed from the Defamation Act.
The Applicant submits that, by not referring to this fact, the Tribunal has made a jurisdictional error.
The Respondent submits that this claim of possible jailing was not made before the Tribunal. The Respondent is correct but the Applicant submits that it was incumbent upon the Tribunal to make its own enquiries to ascertain what the state of the law in PNG actually was.
I cannot agree with this submission. It is not for the Tribunal to enquire into any possible lines of argument that the Applicant may have, but to respond to the case that an Applicant advances. The Tribunal’s function is to review, not investigate. Therefore I do not consider that there is any jurisdictional error made by the Tribunal.
I do note the submissions of the Respondent regarding the question of foreign law being a question of fact and I agree with them. I also agree with the Respondent that deprivation of liberty does not automatically constitute persecution or significant harm.
Therefore even if the Tribunal were obliged to consider the possible detention based on the Defamation Act, such would not have amounted to serious or significant harm in any event.
Conclusion
I dismiss the application with costs fixed in the amount of $7206.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 17 November 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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