AZAFH v Minister for Immigration and Border Protection

Case [2016] FCA 1363

FEDERAL COURT OF AUSTRALIA

AZAFH v Minister for Immigration and Border Protection [2016] FCA 1363

Appeal from: AZAFH v Minister for Immigration & Anor [2016] FCCA 1315
File number: SAD 167 of 2016
Judge: PERRY J
Date of judgment: 17 November 2016
Catchwords:

MIGRATION – application for a protection visa – appeal from Federal Circuit Court – whether Tribunal did not properly consider evidence as to whether the appellant had been targeted – where claim to have been targeted in the past was a pivotal and express component of appellant’s claim – appeal allowed. 

MIGRATION – purpose of s 91X of the Migration Act 1958 (Cth) – importance of ensuring that potentially identifying features are not present in published reasons of a court where s 91X applies.

Legislation: Migration Act 1958 (Cth) ss 36, 91X
Cases cited:

BZAID v Minister for Immigration and Border Protection [2016] FCA 508

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

Date of hearing: 14 November 2016
Registry: South Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 49
Counsel for the Appellant: Dr S Churches
Solicitor for the Appellant: Bourne Lawyers
Counsel for the First Respondent: Mr K Tredrea
Solicitor for the First Respondent: Sparke Helmore
Solicitor for the Second Respondent: The second respondent filed a submitting appearance save as to costs

ORDERS

SAD 167 of 2016
BETWEEN:

AZAFH

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

PERRY J

DATE OF ORDER:

17 NOVEMBER 2016

THE COURT ORDERS THAT:

1.Appeal allowed.

2.Order 2 of the Orders of the Federal Circuit Court of Australia dated 24 May 2016 be set aside.

3.A writ of certiorari issue directed to the second respondent, quashing its decision made on 9 July 2014.

4.A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine the appellant’s application for review according to law.

5.The first respondent is to pay the appellant’s costs of the appeal as agreed or assessed.

6.Subject to either party filing short written submissions within 14 days on the issue of costs of the Federal Circuit Court proceedings, Order 3 of the Orders of the Federal Circuit Court dated 24 May 2016 be set aside and instead there be an order as follows:

3.        There be no order as to costs.

7.If submissions are filed in accordance with Order 6 above, the issue of costs of the Federal Circuit Court proceedings will be determined on the papers.

8.The…

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AZAFH v Minister for Immigration and Border Protection [2016] FCA 1363
Case
[2016] FCA 1363
Decision Date

CaseChat Overview and Summary

The case of AZAFH v Minister for Immigration and Border Protection involves the appellant, a citizen of Liberia, who sought a protection visa in Australia. His application was denied by the Minister’s delegate, and upon review, the Tribunal upheld the delegate's decision. The appellant appealed the Tribunal's decision to the Federal Circuit Court, which dismissed the appeal, leading to an appeal to the High Court. The central issue in this appeal was whether the Tribunal properly considered the evidence regarding whether the appellant had been targeted by former rebels in Liberia. The appellant argued that his fear of persecution was based on his belief that he had been targeted by the son of a former general who he believed was responsible for his father's death during the Liberian conflict.

The court found that the Tribunal failed to properly consider the appellant’s evidence that he was being targeted. The appellant testified that he believed he was being targeted by the son of the former general and former rebels due to his potential to seek justice for his father's death. However, the Tribunal’s reasoning suggested a misunderstanding or misinterpretation of this critical aspect of the appellant’s claims. The court concluded that this misapprehension was a material error affecting the fairness of the decision-making process. Therefore, the appeal was allowed, and the decision of the Tribunal was quashed. The matter was remitted to the Tribunal for reconsideration in light of the correct understanding of the appellant’s claims. The court also ordered the redaction of potentially identifying information from the documents filed in the appeal to protect the appellant's identity.

Orders

Orders of the court

1. Appeal allowed.

2. Order 2 of the Orders of the Federal Circuit Court of Australia dated 24 May 2016 be set aside.

3. A writ of certiorari issue directed to the second respondent, quashing its decision made on 9 July 2014.

4. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine the appellant’s application for review according to law.

5. The first respondent is to pay the appellant’s costs of the appeal as agreed or assessed.

6. Subject to either party filing short written submissions within 14 days on the issue of costs of the Federal Circuit Court proceedings, Order 3 of the Orders of the Federal Circuit Court dated 24 May 2016 be set aside and instead there be an order as follows:

3. There be no order as to costs.

7. If submissions are filed in accordance with Order 6 above, the issue of costs of the Federal Circuit Court proceedings will be determined on the papers.

8. The parties are to file a redacted copy of the notice of appeal and written submissions removing any references which may identify the appellant within 14 days of these orders.

9. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground specified in s 37AG(1)(c) of the Act, namely that the order is necessary to protect the safety of a person, that the whole of the Court file in these proceedings not be disclosed or published to any person other than the parties, their legal representatives, the Court or officers of the Court acting in the course of their duties pending compliance with Order 8.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

I have also made orders requiring the parties to submit draft orders (preferably agreed) as to the redaction of information included in the notice of appeal and in the written submission filed in advance of the hearing which may tend to identify the appellant. That information ought not to have been included in those documents in line with the spirit of s 91X of the Act or alternatively, if the inclusion of the information was necessary for the proper consideration of the appeal, confidentiality orders ought to have been sought at the time of their filing. 3. BACKGROUND3.1 The application for a visa and decision of the Minister’s delegate The appellant is a citizen of Liberia. He fled Liberia in 1992 and was transferred by the United Nations Refugee Agency to a town near a refugee camp in Guinea until 2007 (save for a brief period in 2002-2003 when he temporarily returned to Liberia). He returned to Liberia in 2007, but moved to Guinea for a year between 2010 and 2011 before returning to Liberia again in 2011. The appellant arrived in Australia in November 2012 on a business visa. He applied for the protection visa in June 2013. That application was refused by a delegate of the Minister on 30 January 2014, and the appellant applied for review of the delegate’s decision to the Tribunal.3.2 The decision of the Tribunal On 19 May 2014, the Tribunal received submissions from the appellant’s representatives, together with country information including general information about human rights abuses in Liberia, ongoing human rights violations perpetrated during the war in Liberia, and ongoing problems with the criminal justice and security systems in Liberia. A statement by the appellant and a letter from his church attesting to his good character were attached to the submissions. The appellant appeared before the Tribunal on 28 May 2014 to give evidence and present arguments. He was represented at the hearing by his solicitor/migration agent who made oral submissions at the close of the hearing. The Tribunal also received a fax from the appellant’s representative after the hearing which included further evidence in support of his claims. On 9 July 2014, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa. The appellant’s claims for protection before the Tribunal can be summarised as follows: (1)The appellant claimed to fear persecution by reason of an imputed political opinion at the hands of former rebels who were responsible for atrocities perpetrated against his family in 1992. In that regard, the appellant gave evidence as follows.(a)When the appellant sought to flee Liberia in 1992, the appellant, his father and his sister were captured by rebels. During the capture, the appellant was tortured, his sister was raped and his father was killed. The appellant believed that a former general in the rebel group (the General) was responsible for the death of his father. (b)The appellant returned to Liberia in 2007. While the General had died by that time, the appellant claimed that the General’s son threatened to kill him. The appellant said that he thought that before the General died, he told his son about the appellant. The appellant feared that the son and former rebels would try to kill him because they thought he would take a case against the General to try to seek justice for his father’s death, even though he has no interest in seeking justice. (c)Several months after he was threatened in 2007, the house in which the appellant was staying was ransacked.(d)In 2008, the appellant’s half-brother was murdered by unknown assailants.(e)During 2011 and 2012, the house in which the appellant was living was attacked on three occasions. On two occasions, the appellant was not present. However, he was present but hidden on one of the occasions.(f)In 2014, the appellant’s mother’s home was attacked by robbers while she was away from home.(2)The appellant also claimed to fear harm on the basis of his religion. In particular, the appellant was Christian and his former partner was from a Muslim family. He feared the appellant’s former father-in-law could organise for a religion group to “get rid of him”. This harm was also said to form the basis of the appellant’s claim for complementary protection: see [18] of Tribunal’s reasons.

Evidence

Evidence Before The Court

For the reasons that follow, the appeal must be allowed on ground 2. In the circumstances, it is convenient first to address the second ground of appeal.5.1 Ground 2: the Tribunal’s consideration of the evidence as to whether the appellant was targeted by the General’s son in the 2012 attack In support of ground 2, the appellant relied first upon the following portion of the transcript of the Tribunal hearing:[Tribunal]: … I mean there was the time from January 2012 to November – sorry, January 2011 to November 2012, those two years. Just wondering if there was any targeted or any attacks on the house or if you’re saying that there were lots of problems with former rebels in the town and in security generally.[appellant]: Security generally but I was still [targeted].[Tribunal]: You were targeted…[appellant]: Yeah, I….[Tribunal]: [a feeling that you were targeted][appellant]:Yeah I was still fear of those guys and the community [unclear even in the house] … still armed men used to go there…. (emphasis in bold; references to times omitted) Shortly thereafter the transcript records the following exchange:[Tribunal]: So who do you think they are?[appellant]:I feel that those guys are [unclear the same ones]. Those guys are targeting to kill me, to get rid of me, of my father’s story.[Tribunal]:Yeah sorry but you think they’re former [rebels]? Is that what you’re saying?[appellant]:[unclear I believe] because I don’t know [unclear them physical ]. I never see [unclear them]…[Tribunal]:So you suspect that they’re people who were targeting you and you suspect that they’re former rebels?[appellant]:They [unclear want to attack yes] yes. [Unclear it was that]. (references to times omitted.) The appellant gave evidence in the Federal Circuit Court that he had listened to the recording of the hearing while reading the transcript. When his words were marked as “unclear” in the transcript, the appellant told a friend what he had said. That friend then wrote in pen on the transcript the words that the appellant recalled saying at that point in his evidence. The handwritten words are reproduced in italics in the quotations above. No issue was taken by the Minister with the accuracy of the transcript or with the insertions made on behalf of the appellant. Nothing in the exchanges from the transcript quoted above indicate that at this stage the Tribunal misunderstood the appellant’s evidence that he thought that he was being targeted in the attacks on his house and on his mother’s house. The Tribunal dealt with this aspect of the appellant’s claims at a number of parts of its reasons. First, the Tribunal summarised the appellant’s evidence as follows:11.The applicant stated that he returned to Liberia from 2011 to 2012 and was staying sometimes with his friend… and at other times with other people because there were people that would threaten them at the house, which happened 3 times in 3 years and once when he was home. He said that in 2012 armed men came to the house when he was home and asked for everybody who was living there, beating some of the occupants and popping out one person’s eye. He said he did not see the attackers because he was hiding… The Tribunal asked if it was generalised violence or targeted against him. He said that it was generalised violence but he feared for his life. The applicant said that he suspects the attackers were targeting him. He said there was no point reporting the incident to the police because they would not do anything.…14.The applicant believes that the [General’s son] is targeting him now. He says that [the General] knew that his father was working as army personnel prior to his death in 1992 because [the General] used to visit his family near the home of the applicant’s father. The applicant said that he thinks that [the General], prior to his death… told his son about the applicant. He said that [the General’s son] and former rebels will try to kill him because they think that the applicant will take a case against [the General] to try to seek justice for his father’s death.…

Decision

Reasons for decision

The appellant arrived in Australia in November 2012 on a business visa. He applied for the protection visa in June 2013. That application was refused by a delegate of the Minister on 30 January 2014, and the appellant applied for review of the delegate’s decision to the Tribunal.3.2 The decision of the Tribunal On 19 May 2014, the Tribunal received submissions from the appellant’s representatives, together with country information including general information about human rights abuses in Liberia, ongoing human rights violations perpetrated during the war in Liberia, and ongoing problems with the criminal justice and security systems in Liberia. A statement by the appellant and a letter from his church attesting to his good character were attached to the submissions. The appellant appeared before the Tribunal on 28 May 2014 to give evidence and present arguments. He was represented at the hearing by his solicitor/migration agent who made oral submissions at the close of the hearing. The Tribunal also received a fax from the appellant’s representative after the hearing which included further evidence in support of his claims. On 9 July 2014, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa. The appellant’s claims for protection before the Tribunal can be summarised as follows: (1)The appellant claimed to fear persecution by reason of an imputed political opinion at the hands of former rebels who were responsible for atrocities perpetrated against his family in 1992. In that regard, the appellant gave evidence as follows.(a)When the appellant sought to flee Liberia in 1992, the appellant, his father and his sister were captured by rebels. During the capture, the appellant was tortured, his sister was raped and his father was killed. The appellant believed that a former general in the rebel group (the General) was responsible for the death of his father. (b)The appellant returned to Liberia in 2007. While the General had died by that time, the appellant claimed that the General’s son threatened to kill him. The appellant said that he thought that before the General died, he told his son about the appellant. The appellant feared that the son and former rebels would try to kill him because they thought he would take a case against the General to try to seek justice for his father’s death, even though he has no interest in seeking justice. (c)Several months after he was threatened in 2007, the house in which the appellant was staying was ransacked.(d)In 2008, the appellant’s half-brother was murdered by unknown assailants.(e)During 2011 and 2012, the house in which the appellant was living was attacked on three occasions. On two occasions, the appellant was not present. However, he was present but hidden on one of the occasions.(f)In 2014, the appellant’s mother’s home was attacked by robbers while she was away from home.(2)The appellant also claimed to fear harm on the basis of his religion. In particular, the appellant was Christian and his former partner was from a Muslim family. He feared the appellant’s former father-in-law could organise for a religion group to “get rid of him”. This harm was also said to form the basis of the appellant’s claim for complementary protection: see [18] of Tribunal’s reasons.

Ratio Decidendi

Legal Principle Established

The Federal Circuit Court dismissed the application for judicial review on 24 May 2016. First, the primary judge held at [21] that the transcript of the Tribunal hearing did not support the proposition that there was a factual error in the Tribunal member’s understanding of the appellant’s evidence in relation to the allegedly close connection between the families. With respect to the second error, the primary Judge rejected the proposition that there were language difficulties or interpretation difficulties in the conduct of the Tribunal hearing (at [28]-[29]). 4. RELEVANT PROVISIONS OF THE MIGRATION ACT The Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter and remain in Australia. The Act provides for different classes of visa, one of which is a protection visa under s 36 of the Act. A protection visa may be granted where the criteria in s 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed because the person is a refugee as defined in article 1A(2) of the 1951 Convention relating to the Status of Refugees opened for signature 28 July 1951, 189 UNTS 137, [1954] ATS 5 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, [1973] ATS 37 (entered into force 4 October 1967) (collectively, the Refugees Convention). Article 1A(2) defines a refugee as a person who:…owing to 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 of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return it. A determination of whether a (subjective) fear is (objectively) “well-founded” requires the Tribunal to assess what will occur in the future. A fear is “well-founded” when there is “a real and substantial basis for it” even though the chance of the fear eventuating is less than 50 per cent (often described as a “real chance”): Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Conversely, a fear of persecution is not well-founded “if it is merely assumed or if it is mere speculation”: ibid. Section 36(2)(aa) provides in the alternative for the grant of a protection visa to a non-citizen where the Minister is not satisfied that the person is a refugee but is nonetheless satisfied that the person is entitled to protection under Australia’s international non-refoulement obligations (described as complementary protection), being a person:…in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…