Ayc16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 292
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AYC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 292
File number: MLG 1395 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 27 April 2022 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision - refusal to grant protection visa – where Tribunal found that applicant had temporary right to enter and reside in third country – whether Tribunal failed to act on probative evidence in applying ss 36(3) and (5) of the Migration Act 1958 (Cth) –no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 36, 91R, 476, 477 Cases cited: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; [1997] HCA 22
Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52
SZRTC v Minister for Immigration and Border Protection (2014) 224 FCR 570; [2014] FCAFC 43
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 18 January 2022 Place: Perth Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Erskine Rodan & Associates Counsel for the First Respondent: Mr M Hosking Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1395 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AYC16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
27 APRIL 2022
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
This is an application under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 14 June 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa. While the Tribunal accepted that the applicant may face a real chance of serious harm in his home country of Nigeria, it found that he was not entitled to protection in Australia because he had not taken all steps to avail himself of a right to enter and reside in another country, namely, Ghana.
The originating application to this Court was filed on 30 June 2017. The applicant now relies on an amended application filed on 16 November 2021 which raises a sole ground of review alleging that the Tribunal failed to act on probative evidence as to whether the applicant could avoid returning to Nigeria after 90 days in Ghana, for the purposes of ss 36(3) and 36(5) of the Migration Act.
For the reasons explained below, I have found that there is no jurisdictional error in the Tribunal decision. Accordingly, the application to this Court is dismissed.
BACKGROUND
The applicant is a citizen of Nigeria. He arrived in Australia in July 2013 on a business visitor visa.
On 31 July 2013 the applicant applied for a protection visa. He claimed to fear harm in Nigeria from Boko Haram, a Muslim extremist group, on the basis of being a Christian religious activist. The application for a protection visa was refused by a delegate of the Minister on
3 September 2014.
On 17 September 2014 the applicant lodged an application with the Refugee Review Tribunal seeking review of the delegate’s decision.
On 5 April 2016 the Tribunal affirmed the delegate’s decision.[1] The applicant filed an application in the Federal Circuit Court of Australia seeking judicial review of this decision. On 31 October 2016 Judge Harland made a consent order quashing the Tribunal’s decision and remitting the matter to the Tribunal for reconsideration. The consent order included a notation that the Minister conceded that the Tribunal failed to properly consider the applicant’s claim to fear harm in Ghana for reasons of his religion by reference to the relevant country information in circumstances where the Tribunal accepted that the applicant would continue to practice and promote Christianity in Ghana.
[1] On 1 July 2015, following the commencement of the Tribunals Amalgamation Act 2015 (Cth), the delegate’s decision became reviewable by the Migration and Refugee Division of the Tribunal.
On 14 June 2017 the Tribunal, differently constituted, affirmed the delegate’s decision.
TRIBUNAL DECISION
The Tribunal found that there was a real chance that the applicant would suffer serious harm amounting to persecution from Boko Haram if he returned to Nigeria and the applicant’s Christian religion would be the essential and significant reason for the persecution, as required by s 91R(1)(a) of the Migration Act.
The Tribunal also found on the basis of country information that the Nigerian State would be unable to protect the applicant.
The Tribunal considered whether the applicant had a right to enter and reside in a third country, namely Ghana, which is a member of the Economic Community of West African States (ECOWAS). The applicant gave evidence and made submissions about this at the Tribunal hearing and in documents provided after that hearing.
After considering the evidence and submissions, the Tribunal found that the applicant had the right to enter and reside in Ghana. The Tribunal said at [78]-[79] of its reasons (footnotes omitted):
78.As a Nigerian national, the applicant can enter Ghana and he can remain there for three months without a visa. On the evidence before it, the Tribunal has concluded that the right of citizens of any of the ECOWAS countries, including Nigeria, to enter Ghana without a visa and to remain there for three months constitutes a right to enter and reside in Ghana at least temporarily as referred to in subsection 36(3) of the Migration Act.
79.Without wishing to create any doubt in relation to its finding in the paragraph immediately above, the Tribunal observes there is evidence before it that the applicant will be able to remain in Ghana beyond the initial three month period. The evidence was provided by the applicant himself – the document entitled “Challenges/Problems faced by Foreigners in Ghana (Personal Experience)” strongly implies that nationals of ECOWAS countries can obtain a Work and Resident Permit. The author of the document complains that the applicable fee is too high and that he had to apply for it twice. He or she does not claim that he had any other problems obtaining the permit.
The Tribunal also found based on country information that the applicant would be entirely free to practise his religion in Ghana, and he would not face a real chance of persecution or a real risk of significant harm.
The Tribunal accepted that the applicant might not receive the same standard of medical treatment for his health problems in Ghana as he would continue to receive in Australia but found this would not constitute serious or significant harm.
On the evidence before it, the Tribunal was not satisfied that the applicant would face a
well-founded fear of persecution in Ghana for reasons of his religion or any other Convention reason. Further, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right to enter and reside in Ghana, there would be a real risk that he would suffer significant harm in relation to that country.
The Tribunal found that the applicant did not have a well-founded fear that Ghana would return him to another country, including Nigeria. The Tribunal found that s 36(3) of the Migration Act applied to Ghana, and it was not satisfied the applicant had taken all possible steps to avail himself of the right to enter and reside in Ghana.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
In the amended application, the applicant raised the following sole ground of application:
The decision of the Tribunal is affected by jurisdictional error because the Tribunal failed to act on probative evidence as to whether the applicant could avoid return to Nigeria after 90 days in Ghana, for the purposes ss 36(3) and 36(5) of the Migration Act 1958 (Cth).
The applicant filed written submissions on 16 November 2021 and the Minister filed written submissions on 10 January 2022. The matter came before me for hearing on 18 January 2022. The applicant was represented by Mr Angel Aleksov and the Minister was represented by Mr Mark Hosking.
At the hearing Mr Aleksov read two affidavits. The first affidavit, of Erskine Rodan, was affirmed and filed on 17 November 2021 and the second affidavit, of Cheng Yee Phuah, was affirmed on 16 November and filed on 17 November 2021. Both affidavits annexed country information which had been before the Tribunal at the time of its decision.
SUBMISSIONS OF THE PARTIES
Applicant’s submissions
The applicant submitted that the Tribunal failed to act on probative evidence of his right to remain in Ghana after 90 days and thus avoid return to Nigeria, and therefore failed to perform its core review function. The applicant submitted that the ECOWAS Treaty was not probative evidence of the right for the applicant to remain in Ghana. The applicant submitted that the evidence before the Tribunal was that the applicant had a right to enter Ghana, but only for 90 days, and the Tribunal then needed to consider what would happen after 90 days. The only evidence before the Tribunal of what happens after 90 days implied that work permits are available to ECOWAS nationals in Ghana, but that evidence was insufficient to establish a ‘right’ to enter and reside. The applicant submitted that he was not required to ‘negative’ s 36(3) of the Migration Act.
Mr Aleksov further explained this submission in his oral submissions. He submitted that because the right to enter Ghana as national of an ECOWAS country is limited to 90 days, it follows that after 90 days the applicant no longer has a right to reside in Ghana and, as a matter of course, the applicant would then be removed from Ghana. The evidence before the Tribunal did not establish that the natural course of the applicant being returned to Nigeria after 90 days would not occur.
Minister’s submissions
The Minister submitted that it was open to the Tribunal to conclude, on the basis of the evidence before it, that the applicant had a right to enter and reside in Ghana for the purposes of s 36(3) of the Migration Act. The Minister submitted that the right to enter and reside in a country does not need to be legally enforceable under the domestic law of that country, and can include a ‘liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement’: Minister for Immigration and Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91 at [89] (SZRHU). The Minister further submitted, citing SZRTC v Minister for Immigration and Border Protection (2014) 224 FCR 570; [2014] FCAFC 43 (SZRTC) at [27], that the right to enter and reside in a country may be one that is only temporary. The evidence before the Tribunal showed that, as a citizen of Nigeria with the current Nigerian passport, the applicant could enter Ghana without a visa and reside there for up to 90 days. The Minister submitted that, based on this evidence, it was open to the Tribunal to find that the applicant had a right to enter and reside temporarily in Ghana. Any question about what would happen to the applicant after he had been in Ghana for 90 days was relevant to whether, for the purposes of s 36(5) of the Migration Act, the applicant had a well-founded fear of being returned from Ghana to Nigeria.
The Minister submitted that it was open to the Tribunal to conclude that the applicant did not have a well-founded fear of being returned from Ghana to Nigeria. The Minister submitted that the expression ‘well-founded fear’ in the chapeau of s 36(5) must be given a meaning consistent with that given to the same words in the expression ‘well-founded fear of persecution’. In assessing whether an applicant has a fear that is well-founded, the Tribunal must proceed on the basis of the evidence before it and cannot simply assume in an applicant’s favour that the applicant has a well-founded fear that something will occur. In the present matter, the applicant did not adduce evidence that, after being in Ghana for 90 days, he would be returned to Nigeria. Rather, the evidence that the applicant provided to the Tribunal suggested that he would be able to obtain a work and resident permit upon payment of a fee, which would allow him to continue to reside in Ghana beyond the 90 day period.
Mr Hosking’s oral submissions were largely consistent with his written submissions.
CONSIDERATION
The issue for the Court’s determination is whether the Tribunal failed to act on probative evidence in making findings for the purposes of ss 36(3) and 36(5) of the Migration Act. At the time of the applicant’s protection visa application, these subsections provided:
(3)Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
…
(5)Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a)the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The relationship between ss 36(3) and (5) of the Migration Act was explained by the Full Court of the Federal Court in SZRTC. In that case, Tracey and Griffiths JJ said at [27] and [32]:
27.By s 36(3) Australia is deemed not to have protection obligations to a non-citizen “who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently” any third country. The relevant question posed by the sub‑section is whether it can be said, having regard to all of the circumstances, that an applicant for a protection visa has a right (in the broad sense recognised by the court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35), to “reside …. temporarily” in the third country. There is an obvious tension between the stability which is suggested by the word “reside” and the transience implied by the word “temporarily”. That, however, is a tension which must be resolved on the facts in each case. It is not a warrant for extending the meaning of “temporarily” such that it covers the whole of the period (which may or may not be able to be ascertained at the time at which the relevant decision is made) during which the applicant remains subject to persecution in his or her country of origin.
…
32.It would be open to a decision-maker, consistently with the provisions of s 36(3), to take the view that the appellants’ right to enter and reside in another EAC country for up to six months constituted a right of temporary residence. If the decision-maker so decided a question would then arise as to what was likely to occur at the conclusion of the six month period. One possibility might be that the third country would extend protection to the applicant if there was a basis for apprehending persecution of the applicant in his or her country of origin. Another possibility might be that the applicant could move on to another EAC country for a further six month period. If, however, at the expiry of the first six months, there was reason to expect that the third country would return the applicant to his or her country of origin or send him or her somewhere else where the applicant might have reason to fear persecution, the decision-maker would be required to determine whether or not sub‑ss 36(4), (5) or (5A) were engaged. In this way the legislative purposes of avoiding forum shopping and ensuring that Australia’s protection obligations under the Refugee Convention were honoured would both be satisfied.
In considering the applicant’s ground, it is necessary to ensure that the questions posed by ss 36(3) and 36(5) are not conflated. As the terms of the legislation and the above extract from SZRTC make clear, s 36(5) operates as an exception to s 36(3), and it is only necessary to consider s 36(5) if the Tribunal finds that an applicant has a right to enter and reside in another country.
Section 36(3) is concerned with whether an applicant has a ‘right’ to enter and reside in a third country. In this context, the ‘right’ does not need to be a right that is legally enforceable under the laws of the third country, in this case Ghana. Rather, s 36(3) has been held to refer to a ‘liberty, permission or privilege lawfully given’: SZRHU at [45], [89].
The Tribunal in the present case concluded that the applicant had a right, as an ECOWAS national, to enter Ghana and remain there for a period of 90 days. The evidence that the Tribunal relied on in reaching this finding included the ECOWAS Treaty, internet pages from the Government of Ghana Official Website and the Ghana Immigration Website, and a report published by the Department of Foreign Affairs and Trade (DFAT).
Based on this evidence, I am satisfied that there was probative evidence before the Tribunal from which the Tribunal could reasonably conclude that the applicant had a right to enter and reside temporarily in Ghana for the purposes of s 36(3) of the Migration Act.
The applicant’s submissions focused heavily on the ‘right’ to enter and reside in Ghana expiring after 90 days and questioned what happens at the expiration of that 90 day period. The applicant referred to the evidence before the Tribunal that suggested that work permits may be available to ECOWAS nationals in Ghana, and submitted that this does not establish a ‘right’ in the requisite sense. The particular evidence that the applicant referred to in this context was a document submitted to the Tribunal by the applicant titled ‘Challenges/Problems faced by Foreigners in Ghana (Personal Experience)’ (Foreigners in Ghana document) and comprises a list of eight such challenges perceived by the unnamed author.
While I agree that a question may arise as to what happens at the end of the 90 day period, I do not consider that the submission referred to in the above paragraph accurately reflects the Tribunal’s reasons or the operation of ss 36(3) and 36(5) of the Migration Act. The Tribunal did not rely on the possibility of the applicant being able to obtain a work permit for the purposes of its findings in relation to s 36(3) of the Migration Act that the applicant had a right to enter and reside in Ghana. Rather, as indicated above, that finding was based on the ECOWAS Treaty, DFAT information and information on webpages published by the Government of Ghana. The Tribunal then observed, ‘without wishing to create any doubt in relation to its finding’ that the applicant had a right to enter and reside in Ghana temporarily, that the Foreigners in Ghana document suggested that the applicant would be able to remain in Ghana beyond the initial three month period.
To the extent that the applicant’s submission suggests that the Tribunal needed to be satisfied that the applicant had a ‘right’ to remain in Ghana beyond the initial 90 day period, the submission cannot be accepted. Section 36(3) expressly envisages that a right to enter and reside in a country can be temporary. To require that an applicant continue to have a ‘right’ to reside in a country after the temporary right has expired would exclude from s 36(3) any situation where a right to enter and reside in a third country is not ongoing and would render nugatory the word ‘temporary’ in s 36(3) of the Migration Act.
In my view, the question of what happens at the expiration of the 90 day period necessarily directs attention to s 36(5) of the Migration Act and whether it was open to the Tribunal to conclude, on the evidence before it, that the applicant did not have a well-founded fear that Ghana would return him to Nigeria.
Unlike s 36(3), s 36(5) does not raise any question about the applicant’s ‘right’ to reside in Ghana. Rather, the question that the Tribunal was required to consider was whether the applicant had a well-founded fear that Ghana would return him to Nigeria. I accept the Minister’s submission that the phrase ‘well-founded fear’ as it appears in s 36(5) must be given the same meaning as it is given when considering whether an applicant has a well-founded fear of persecution. When a fear is taken to be ‘well-founded’ was explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; [1997] HCA 22, where the High Court said at [48]:
…Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan [Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379] shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation…
The Tribunal does not act as contradictor to the applicant’s case: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 (SZGUR) at [84]. Although it is not appropriate to talk of onus of proof in administrative decision-making, it is well-established that it is for an applicant for a visa to provide evidence and advance submissions which are sufficient to enable the Tribunal to make a favourable decision: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52 at [69]; see also SZGUR at [84].
In the present case, the Tribunal was not satisfied on the evidence before it, including that advanced by the applicant, that the applicant had a well-founded fear that Ghana would return him to Nigeria. The Tribunal considered that the applicant’s submission that, amongst other things, he may be ‘expelled from Ghana’ was based on ‘largely speculative reasoning’.
In oral submissions, Mr Aleksov submitted that:
The evidence before the tribunal showed that an ECOWAS national cannot get an entry permit – or a visa permit for more than 90 days upon presentation in Ghana without at least doing something else. That … fact is the evidence that he would be returned to … Nigeria after 90 days. The applicant didn’t need to present anything else other than to rely on the fact that the right was limited to 90 days and that in the ordinary course one would expect … the limit to that right to be enforced.
The fact that the initial right to enter and reside in Ghana expired after 90 days did not, in the present case, amount to evidence that the applicant had a well-founded fear of being returned to Nigeria after 90 days. It is clearly open to a Tribunal to consider the possibility of an applicant being able to extend their stay in a country after an initial right to enter and reside temporarily has expired in considering whether the exception in s 36(5) applies: see, for example, SZRTC at [36] where the Full Court referred to the possibility of protection applications being made while an applicant is in a third country.
It was open to the Tribunal in the present case to take into account the Foreigners in Ghana document in assessing that the applicant might be able to obtain a Work and Resident Permit in Ghana and to place such weight on this document as it considered to be appropriate. That the applicant might have had to make an application or pay a fee to obtain a Work and Resident Permit is not probative evidence to establish that he had a well-founded fear of being returned to Nigeria and is not inconsistent with the operation of ss 36(3) and 36(5) of the Migration Act.
I have had regard to the various country information before the Tribunal that the applicant referred me to at the hearing. This country information is relevant to the question of whether the applicant had a right to enter and reside temporarily in Ghana as a national of an ECOWAS nation. Nothing in the information that I was directed to at the hearing is probative evidence that the applicant had a well-founded fear that Ghana would return him to Nigeria.
While I accept that there was limited evidence before the Tribunal about what might happen after the applicant had been in Ghana for 90 days, the question for the Tribunal was not whether it could be positively satisfied that the applicant could remain in Ghana, but rather whether the evidence before it established that the applicant had a well-founded fear of being returned to Nigeria. The Tribunal was not required to assume that the applicant’s fear, based on what it considered to be speculative reasoning, was well-founded simply because there was a lack of contradictory evidence. Rather, it was for the applicant to provide evidence to satisfy the Tribunal that his fear was well-founded. The Tribunal in its decision considered the various country information reports that the applicant provided to the Tribunal in support of his case. Having considered these reports, the Tribunal was not satisfied that the applicant had a well-founded fear that Ghana would return him to Nigeria. The only document that the applicant provided that the Tribunal considered relevant to s 36(5) was the Foreigners in Ghana document, and it was open to the Tribunal to conclude that this document did not establish that the applicant’s fear was well-founded.
The ground raised by the applicant is not established.
CONCLUSION
I have found that there is no jurisdictional error in the Tribunal decision. Accordingly, the application must be dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 27 April 2022
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