BDJ16 v Minister for Immigration

[2016] FCCA 2145

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDJ16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2145

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – real chance test – whether the Tribunal failed to comply with the relevant statutory scheme – whether the Tribunal failed to take relevant information into account – no arguable jurisdictional error identified – amended application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476, 477

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: BDJ16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1188 of 2016

Judgment of: Judge Street

Hearing date: 19 August 2016

Date of Last Submission: 19 August 2016

Delivered at: Sydney

Delivered on: 19 August 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Mr N Buck
Sparke Helmore

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) based on the amended application filed on 28 July 2016 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1188 of 2016

BDJ16

Applicant

And

MINISTER FOR IMMIGRATION AND 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 Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 1 March 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Fiji and his claims were assessed against that country. The applicant claimed to fear harm in Fiji by reasons of his inabilities to subsist, his membership of a union, illegal sugar cane burning on his property, his support for the SODELPA political party. The applicant claimed that the authorities would not be able to assist him due to a lack of resource and internal problems. 

3. The applicant was first granted a tourist visa on 9 January 2006. The applicant then applied for 4 offshore tourist visas between 2010 and 2012, which were all refused by the Department. On 15 April 2013, the applicant was granted an offshore tourist visa. It was not until 10 May 2013 that the applicant arrived in Australia. The applicant then departed Australia on 8 August 2013. The applicant was granted a further tourist visa on 29 August 2014 and arrived in Australia on 21 September 2014. On 15 December 2014, the applicant lodged an application for protection.

The Delegate’s Decision

1. On 31 March 2015, the delegate refused the applicant’s application for a protection visa. The delegate was not satisfied that the applicant had a well-founded fear of persecution in Fiji. The delegate was not satisfied that there was a real chance that the applicant would be subject to significant harm should he return to Fiji. Further, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there was a real risk the applicant would be subject to significant harm.

The Tribunal’s Decision

1. On 17 April 2015, the applicant applied for review of the delegate’s decision by the Tribunal. By letter dated 3 August 2015, the applicant was invited to attend a Tribunal hearing on 14 October 2015. On 13 October 2015, the applicant provided to the Tribunal a Statutory Declaration. On 14 October 2015, the applicant appeared before the Tribunal to give evidence and present arguments and was assisted by his migration representative. After the hearing, the Tribunal gave the applicant a further 14 days to provide any further information. No further information was provided to the Tribunal.

2. The Tribunal correctly identified the relevant law in the annexure to its decision record. The Tribunal summarised the applicant’s claims and evidence. The Tribunal found the applicant not to be a credible witness on several critical aspects of his claims. The Tribunal provided reasons in support of the adverse credibility findings that were open on the material before it, which cannot be said to lack an evident and intelligible justification.

3. The Tribunal did not accept that the compulsory retirement amounted to persecution under the Act. The Tribunal was not satisfied that the applicant faced a real chance of persecution for this reason if he returned to Fiji now or in the foreseeable future.

4. Further, the Tribunal did not accept there was a real chance that the applicant would face serious harm for reasons of possible unemployment. The Tribunal found that employment difficulties were faced by the whole of the Fijian community and that the applicant’s fear of the consequences of unemployment had no Refugees Convention nexus.

5. The Tribunal found that if the applicant were to return to Fiji now or in the immediate future, he would not face a real chance of harm for reason of his previous membership of the Sugar Workers Union or any other union.

6. Further, the Tribunal did not accept the incidents described by the applicant in relation to the illegal sugar cane burning on his property. The Tribunal did not accept that the applicant was mistreated by the military authorities because his sugar cane had been burnt outside the prescribed periods. The Tribunal did not accept that the applicant faced a real chance of significant harm for this reason on his return to Fiji.

7. The Tribunal found that according to country information, the applicant would not be at risk of any harm as an ordinary supporter of the SODELPA or any existing opposition party, if he were to publically express his support for these political parties. The Tribunal did not accept that there was a real chance the applicant would be harmed in Fiji for reasons of his political opinion. 

8. The Tribunal also considered whether the applicant met the complementary protection criterion under s.36(2)(aa) of the Act. The Tribunal was not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there was a real risk he would suffer significant harm. Having found that the applicant did not satisfy the Convention criterion under s.36(2)(a) of the Act or the complementary protection criterion under s.36(2)(aa) of the Act, the Tribunal affirmed the decision of the delegate.

Proceedings Before this Court

1. On 30 June 2016, a Registrar of the Court made directions fixing the applicant’s application for an extension for time under s.477 of the Act for hearing and providing an opportunity for the applicant to file an amended application, affidavit evidence and submissions. The applicant filed two further applications, a further affidavit but no submissions. The applicant confirmed that he wished to rely upon the most recent amended application filed on 28 July 2016.

2. The grounds of that amended application are as follows:

   “1. I, [name omitted], am seeking political asylum in Australia under the Refugees Convention 1951, PART 3-REFUGEE CRITERION ASSESSMENT-paragraph 36(2)(a) Persecution a) Does the applicant fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion? – subsection 4J(1)(a), the 1967 Protocol and the Complimentary ground with its hard-to-prove narrow test of “significant harm” subsequently introduced in 2008, and other applicable laws in this area.

   2. I am claiming first and foremost that the Tribunal erred in that the Member, [name omitted] in assessing my application for political refugee status on 1st March 2016, did not once include questions relating to the main body of laws in the Refugees Convention 1951 which I've included above. This I believe has caused me great injustice.

   3. I claim that the Member erred in law when she selectively uses ONLY the Country Information that 'DFAT' provides, instead of checking the veracity of that information with the large volume of official Reports on Fiji that are widely available online and in print (some noted below). In all honesty, I and many of my colleagues who have fled Fiji in the past 10 years, feel and believe that DFAT’s Country Information is a lie in fact and a fraud on us, the citizens of Fiji.

   4. I also contend with the manner in which the Member kept the questions focused on the matter of my profession as a cane farmer rather than the wider and more significant subject concerning my well-founded fear of being persecuted for reasons of my race, religion, nationality, membership in a particular social group or political opinion, all of which I have come to fully understand since arriving in Australia where I can attend meetings and speak openly with others about the real situation back in Fiji. I am fully against the current Bainimarama regime and their non-negotiable rule of forcibly and intensively assimilating us, native Fijian people into their 'progressive Fiji' (ever since 10 April, 2009) with their repugnant decrees and their imposed and illegal 2013 Constitution that is extremely hostile to the native Fijian race, of which I am a member. Therefore the well-founded harm I fear I have if returned to Fiji is already enshrined in law, and woe to me or to any of us who opens his mouth in opposition, because the full brunt of the law in Fiji will be meted out against him. After all, speaking out against these repugnant laws is now classified as “national security risk”. Why else are people in Fiji silent as a mouse? For fear of police and military brutality, of course! And it is a fact that since their 2006 coup, no police or military charged with wrongdoing even causing death has ever been convicted!

   5. I am claiming that the Tribunal erred in law by not taking into account that I farm sugar cane in Fiji, and that my farming sugar cane is NOT done in a vacuum therefore, the Country information which DFAT provides, if it is intended to support and validate the purposes of the Minister for Immigration to reject my application and those of my group, then this is a fraud on me and members of my group who are fleeing Fiji in droves, looking for protection in other foreign countries, and several hundreds of us are here in Australia.

   6. Somehow I know that the law is said to be always behind, and that it is always trying to play 'catch-up' with what is actually happening in society in the present time, and I am in total agreement with that opinion. I therefore contend that the Tribunal has failed to take into account huge numbers of readily available material online and in print, such as the British Law Society Report of 2012, titled 'FIJI: RULE OF LAW 'LOST' and the US State Department 2015 Report, that has exposed damning breaches of human rights in Fiji by none other than the Fiji government itself, even the non independence of Fiji's Judiciary has been clearly articulated in the 143 pages-Petition of Justice William Roberts Marshall, QC, SC, Justice of the Appeals Court in Fiji from 2010-2012, who stated on page 137, that “the Attorney General Aiyaz Sayed-Khaiyum has turned the Judiciary into a corrupt agency of the Executive.” Justice Marshall was kicked out because he didn't bow down to the demands of the Attorney General. This is the reason why I and hundreds other native Fijian people have fled our country to look for protection in other foreign shores all around the world.

   7. These and more are confounding my fears of being returned to Fiji at the moment and I pray this honourable court to grant my application for extension of time on the GROUNDS I have hereto attested, so my claim for political refugee in Australia, one of 145 contracting states to the Refugees Convention 1951 and the 1967 Protocol may hopefully be granted.”

   (Errors in original).

3. At the commencement of the hearing, the Court explained to the applicant that the hearing was to determine whether there should be an extension of time pursuant to s.477 of the Act. The Court explained that this required consideration of the delay of 71 days by the applicant in the filing of his application and his explanation for that delay.

4. The Court explained to the applicant that whether there would be an extension of time also depended on whether the Court was satisfied that the merits of the substantive application warranted an extension of time in the interests of the administration of justice. The Court explained that this involved consideration of whether there was a reasonably arguable case that the Tribunal had committed a relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.

5. The Court explained that this meant in summary, the Court was considering whether there was a reasonable argument that the Tribunal acted unlawfully or unfairly. The Court explained to the applicant that it will first identify the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

6. From the bar table, the applicant maintained that he would be subject to torture and harm if he was to return to Fiji. The applicant also complained about the state of affairs in Fiji. The matters advanced by the applicant from the bar table were, in substance, an impermissible invitation to this Court to review the merits of the matter. This Court has no power to make fresh findings of fact in relation to the applicant’s claims. 

7. The applicant also took issue with the adverse findings made by the Tribunal. For the reasons already given, the adverse findings by the Tribunal were open to the Tribunal.

8. Further, nothing said by the applicant from the bar table identified any satisfactory explanation for the delay in applying for judicial review of the Tribunal’s decision. The fact that the applicant was unrepresented is not of itself a satisfactory explanation for the delay. However, the critical issue is whether there is a reasonably arguable case in relation to the merits of the substantive application.

9. Ground 1 of the further amended application, filed on 28 July 2016, fails to identify any arguable jurisdictional error. On the material before the Court, the Tribunal complied with its statutory obligations in relation to the conduct of its review.  There is nothing to establish that the applicant was denied procedural fairness in the conduct of the review by the Tribunal. Ground 1 fails to identify any arguable jurisdictional error. 

10. Ground 2 sought to cavil with the adverse findings by the Tribunal, which is an impermissible invitation to this Court to review the merits of the applicant’s application for protection. The adverse findings were open on the material before the Tribunal. Nothing in Ground 2 identifies any arguable jurisdictional error.

11. In relation to Ground 3, it is a matter for the Tribunal what country information it accepts and the Tribunal is required as a matter of law to take into account the DFAT reports. The applicant sought to cavil with information in the DFAT reports, which does not identify any arguable jurisdictional error on the part of the Tribunal. Nothing in Ground 3 identifies any arguable jurisdictional error.

12. In relation to Ground 4, it was a matter for the Tribunal to explore with the applicant aspects of his claims and asking questions to test the applicant’s credit. To the extent that the applicant is alleging bias on the part of the Tribunal in the conduct of the hearing, an allegation of bias must be clearly made and properly proven. No case of bias is proven. There is nothing to suggest that the conduct of the Tribunal was such that a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The Tribunal took into account the applicant’s alleged claims in relation to his political views and made adverse findings that were open to the Tribunal on the evidence and material before it.  Nothing in ground 4 identifies any arguable jurisdictional error.

13. In relation to Ground 5, it is apparent that the Tribunal did take into account the applicant’s claims relating to the sugar cane incident. The adverse findings by the Tribunal were open to the Tribunal on the material before it. Nothing in Ground 5 identifies any arguable jurisdictional error.

14. Ground 6 is, in substance, a criticism in relation to the material which the Tribunal relied upon. For reasons already given, it was a matter for the Tribunal what country information it took into account. Nothing in ground 6 identifies any arguable jurisdictional error. 

15. Ground 7 is in substance an impermissible invitation to this Court to review the merits of the matter. This Court has no power to do so. 

16. Accordingly, the amended application dated 28 July 2016 fails to identify any arguable case of jurisdictional error. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. The merits of the application do not warrant an extension of time. I am not satisfied that the interests of the administration of justice warrant an extension of time under s.477 of the Act.

17. The application for an extension of time based on the amended application filed on 28 July 2016 is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 October 2016