BCG15 v Minister for Immigration

[2016] FCCA 2773

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCG15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2773

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal affirming the decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa – alleged failure by Tribunal to accord procedural fairness to applicant – whether Tribunal failed to consider applicant’s psychological condition – whether Tribunals findings unreasonable/illogical – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 424A, 424A(1), 424A(3), 424AA, 425, 425A.

Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

Plaintiff S157/2002 v Commonwealth [2003] 211 CLR 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6;185 CLR 259
Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46

Applicant: BCG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1388 of 2015

Judgment of: Judge McNab

Hearing date: 26 October 2016

Date of Last Submission: 26 October 2016

Delivered at: Melbourne

Delivered on: 9 November 2016

REPRESENTATION

Applicant in Person

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 19 June 2015 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1388 of 2015

BCG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed 19 June 2015 the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”)

   
   

   (as it was then) made on 21 May 2015 under the Migration Act 1958 (Cth) (“the Act”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Protection (class XA) Visa.

   
   

   On 28 October 2015 the court made procedural orders in the proceeding setting the matter down for hearing on 19 October 2016 (the trial date of which was subsequently vacated and allocated for hearing on 26 October 2016).

2. The court made procedural orders giving leave to the applicant to file and serve written submissions by 9 September 2016. The applicant did not to do so, however, without objection the applicant was granted leave to file written submissions on the morning of the hearing, together with an affidavit which exhibited a letter from a psychologist, Mr Awit, dated 24 October 2016.

Factual Background

1. The applicant is a citizen of Lebanon, having arrived in Australia on

   
   

   15 March 2013 as the holder of a tourist (class TR) visa. On

   
   

   9 July 2013, she applied for the visa on the basis of her fear of being murdered, raped and robbed by Salafists. The applicant made her original written claims for protection that she was at serious risk of harm in Lebanon due to the nature of her work, selling clothing in markets throughout various parts of Lebanon. It was said that as a consequence of this work, she was required to travel on a number of dangerous roads.

2. In interviews before the delegate, it was said by the delegate that the applicant changed her primary claim for protection, whereby as a consequence of her work selling clothes, she met a man who had fallen in love with her who was associated with Hammas and the Salafists movement. It was said that this man had fallen in love with her and demanded that she leave her husband; and with the assistance of others, kidnapped her husband and held him captive for 15 to 20 days.

3. On 26 June 2014, the delegate refused to grant the Visa on the grounds that he found the applicant not to be a credible witness. On

   
   

   19 July 2014 the applicant applied to the Tribunal for merits review of the delegate’s decision.

Before the Tribunal

1. The applicant gave evidence and presented arguments in support of her claim as follows:

   a)on 20 April 2015, by way of oral evidence and submissions before the Tribunal; and

   b)on 24 April 2015 by way of written submissions addressing the delegate’s decision.

2. The applicant filed with the Tribunal a medical report from Mr Awit dated 4 December 2013.[1] The report was addressed to the Asylum Seekers Assistance Scheme and was provided in support of an application for assistance from that scheme. The report states that the applicant presented with inter alia the following symptoms: panic attacks; memory/concentration difficulties; and post-traumatic stress disorder.

   [1] Court Book 86-87.

3. In correspondence dated 14 April 2014, Mr Awit expressed the view that the applicant was suffering from post-traumatic stress disorder and stated that this condition was being exacerbated by the current political instability in Lebanon. The report stated that the applicant “has claimed to be afraid for her life if she was to return to Lebanon, and a recent event has further refreshed this period within her mind.” Information had been provided to the psychologist by the applicant that the applicant’s husband was kidnapped and tortured for 20 days when he was on his way to work.[2]

   [2] Court Book 119-220

The applicant’s claims before the Tribunal

1. The applicant claimed to have a well-founded fear of persecution because of her political opinion and/or religious views from Salafists because she had been threatened by a man called Mohammed Dajani (possibly associated with the Salafists) after she had refused his sexual advances; [5] – [10], [22]. Dajani had also arranged for the applicant’s husband to be kidnapped and assaulted: [14] – [16]. From [25] – [42] the Tribunal made detailed findings in relation to the applicant’s claims. In summary, the Tribunal held that:

   a)it did not accept that the applicant was ever the target of a man with a romantic interest in her who threatened to kill her husband and family unless the applicant left her husband [30];

   b)she made no mention of this person or any incident involving him in her initial protection visa application; and

   c)that in her original application her claims were vague and that she claimed that the people she felt that would cause her serious harm were “a major community/group and organisation which operates under a type of cultural and religious belief but also under a deadly racist judgement against our type of community and religion”;[3]

   d)the applicant’s claim that a conservative Sunni Salafist such as Dajani would be attracted to her, a married Shia woman was not credible [32];

   e)despite claiming that she always tried to avoid being in the same room as Dajani or  talking to him, she not only agreed to enter a refugee camp at night, she also got out of her car and entered the basement of the shop and looked at clothes only in the presence of Dajani [33];

   f)the applicant’s husband was ever kidnapped by men in police uniforms and then released 15 to 20 days later having been beaten [35]; and

   g)the event was not mentioned in the visa application and there appeared to be no real purpose to the kidnapping as no ransom was asked for, nor was her husband connected to any political party [35];

   h)the kidnapping appeared to serve no purpose in circumstances where the applicant had provided evidence she had spoken to Dajani from Australia before the kidnapping [12] and [35] – [36];

   i)an unidentified person fired shots at the applicant’s house in early 2015.

   [3] CB 254 at [30]

2. Due to the Tribunal’s credibility concerns with the applicant generally, the fact the attack appeared to serve no purpose and there have not been any subsequent interviews nor any police report provided that may have supported such a claim [39], the Tribunal considered that the applicant’s evidence regarding claims generally lack credibility and it found that she fabricated a claim in order to be granted a protection visa [27].

3. The Tribunal considered the letters provided by her psychologists and general practitioner that diagnosed her with PTSD and that her condition had further deteriorated because of the incident in which her husband had been kidnapped and tortured for 20 days [20].

   
   

   The Tribunal gave little weight to the reports given that it held that they were based on an uncritical acceptance of events the applicant claimed to have experienced in circumstances where the Tribunal found her account of these events to have been fabricated [29]. The Tribunal did not accept the evidence of a letter from a Medical Centre in Saida regarding the applicant husband’s hospitalisation after being kidnapped because the letter states in part: “we informed the concerned authorities about the incident” in circumstances where the applicant had stated the incident had not been reported to the police [37];[16].

4. The Tribunal did not accept that the applicant’s son had “interrupted his school attendance” as the letter purporting to evidence this did not state how long he had been removed from school or the reason why [38]. At [43] the Tribunal concluded that as it did not accept that the applicant has or will be targeted by someone called Mohammed Dajani or by Salafists, that her husband was ever kidnapped or beaten or that their house had been shot at, it was not satisfied that there were any substantial grounds for believing that there is a real risk of significant harm on the basis of the claims as outlined in the complimentary protection criterion s.36(2)(aa) at [43].

Grounds of Review

1. The application for judicial review before this court sets out the following grounds:

   1.The member of the Refugee Review Tribunal made a finding that my evidence lacked credibility and made a finding that

   
   

   I am not a reliable, credible or truthful witness and that

   
   

   I fabricated my claim in order to be granted a protection visa. Such finding is unreasonable even the denial of my husband’s kidnapping is another shock and wrong finding as he was kidnapped. The Member has reasonable doubt.

   2.The Tribunal Member failed to accord natural justice and procedural fairness as he based his decision upon a series of adverse credibility findings rejecting almost all of my claims on the basis of credibility.

   3.The member failed to give me the opportunity to comment on any information which was relevant to his decision and failed to give me the opportunity to comment or respond to his adverse findings. I was giving evidence under oath. He repeatedly wanted me to look at his eyes, which I did, and I believe that his decision is totally unreasonable. His reasoning is illogical.

   4.I reserve my right to put further evidence at a later stage.

2. A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error; see Plaintiff S157/2002 v Commonwealth [2003] 211 CLR 476 at [76].

3. In general terms, jurisdictional error can only be shown where the Tribunal:

   a)identifies a wrong issue;

   b)asked the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82]; Craig v South Australia (1995) 184 CLR 163.

4. The Tribunal rejected the applicant’s claims in large part because it formed an adverse view of her credibility.[4]

   [4] Tribunal’s Reasons at [27]

Ground 1: Reasonableness of credibility findings

1. As set out above the Tribunal made adverse credibility findings in relation to the applicant. It set out its reasons for doing so and those findings were open to it on the basis the material before it. Credibility findings are findings of fact: Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 per McHugh J at [67]-[68]. It is acknowledged that a finding of credibility does not mean that a finding of credibility is not amenable to challenge on a recognised ground such as:

   a)a failure to afford procedural fairness;

   b)reaching a finding without any logical probative basis;

   c)unreasonableness; and/or

   d)jurisdictional error;

   e)where a critically relevant document has not been taken into account.[5]

   [5] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [38], [41] – [43]

2. In this proceeding there is no basis put forward by the applicant for a finding that the Tribunal has ignored critically relevant evidence.

   
   

   The Tribunal was entitled to make the credit findings that it did and then make use of those findings for the purpose of assessing her claim against the statutory scheme that it was required to apply.

Ground 2: Procedural fairness

1. The Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments in relation to the issues arising in relation to the Tribunal’s review of the delegate’s decision as it was required to pursuant to ss.425 and 425A.

2. The credibility of the applicant’s account was clearly an issue as a result of the clear findings of the delegate and the adverse findings that it made about the applicant’s credibility.[6] The Tribunal raised with the applicant issues of her credibility and that much is apparent from [17], [19] and [20] of the Tribunal’s decision.

   [6] Court Book 159-164

Ground 3: Procedural fairness, unreasonableness and illogicality

1. Nothing that has been put forward by the applicant and a reading of the Tribunal’s decision shows that there is no suggestion in this proceeding that the Tribunal failed to properly disclose information as required under ss.424AA and 424A. The Tribunal relied on information given by the applicant during the course of her visa application, the Tribunal proceedings and on independent country information not specifically relating to the applicant. In those circumstances, that material fell within the exception specified in s.424(A)(3) of the Act and are not subject to the particular requirements of s.424A(1): SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [76] – [107].

Unreasonableness/illogicality

1. In considering whether a decision is unreasonable, illogical and/or irrational, “the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”.[7] In my view, the process reasoning engaged in by the Tribunal does not disclose any illogicality and it was open to the Tribunal to conclude that the applicant did not have a well-founded fear of persecution and did not fall within the complimentary protection regime.

Matters raised in the applicant’s submissions filed on

26 October 2016

[7] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [133] Crennan and Bell JJ

Tribunal’s failure to consider the applicant’s psychological condition at the hearing

1. The applicant submits that the Tribunal failed to consider her psychological condition at the hearing (before the Tribunal) as the applicant suffers from a mental illness which includes PTSD and panic attacks. This was said to have affected her ability to communicate and respond to questions well. The applicant said she was unable to participate in the hearing before the Tribunal or the interview with the delegate. The medical evidence filed with this court was not to the effect that the applicant was incapable of engaging in a meaningful participation in the proceedings. The Tribunal considered the psychological and medical evidence at [28].

2. The balance submissions in relation to the Tribunal’s rejection of psychological reports, a general practitioners assessment, a letter from the Medical Centre regarding the applicant’s husband’s hospitalisation and a letter regarding the applicant’s son’s interrupted school attendance were all the matters which were considered by the Tribunal and the information those documents the documents themselves for weighed against other evidence that had been given by the applicant which had been rejected on the grounds of credibility findings those findings are not capricious or illogical or irrational.

3. The balance of those submissions are essentially attacks on findings of fact made by the Tribunal. The particular focus of the attack was in the Tribunal’s finding at [32] where it held (footnotes omitted): “it lacks credibility that a conservative Sunni would be attracted to a married Shi’a woman if for no other reason than the ideological incompatibility of the branches of the Muslim faith that hard-line Sunni Salafists believe exists.” Even if this court was of a different view to the effect that the sexual urges might overcome a religious prejudice that does not render the finding illogical or the overall finding that the applicant lacked credibility unreasonable. That the finding at [32] is simply part of a compendious set of findings in relation to credibility and the applicant taking issue with that finding does not render the entire the finding in relation to credibility unreasonable.

Request to Consider the Evidence

1. The applicant made a submission that the court should listen to the record of interview and obtain further evidence in order to establish that the decision of the Tribunal was unreasonable. The applicant has not placed a copy of the transcript before the court. Further, no particular submission was made which would render the reception of that evidence as essential to the task of determining this application.

2. In this proceeding the Tribunal articulated each claim made by the applicant and dealt with those claims. It did so having correctly identified, interpreted and applied the relevant provisions of the Act and Regulations. Its findings were open to it for the reasons that it gave and were rational and reasonable. It is not appropriate for this court to engage in a reconsideration of the merits of the decision made by the Tribunal.[8]

   [8] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [272].

Conclusion

1. In my view, the applicant has failed to establish any jurisdictional error in the decision of the Tribunal and accordingly I dismiss the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 9 November 2016