BFT16 v Minister for Immigration

[2018] FCCA 2129

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFT16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2129

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – Administrative Appeals Tribunal affirms decision of Delegate of the Minister for Immigration and Border Protection not to grant – applicant claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – no basis to claims of jurisdictional error – application for judicial review dismissed.

Legislation:

Evidence Act 1995 (Cth), s.43

Migration Act 1958 (Cth), s.36

Migration Regulations 1994 (Cth)

Cases cited:

AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
AQF17 v Minister for Immigration and Border Protection [2018] FCA 966
AWA15 v Minister for Immigration [2018] FCA 604
AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112

Applicant: BFT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1286 of 2016

Judgment of: Judge Dowdy

Hearing date: 12 September 2017

Delivered at: Sydney

Delivered on: 8 August 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr T. Shaw

Solicitors for the First Respondent: Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 24 May 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1286 of 2016

BFT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Tunisia aged 35 years, having been born on 15 May 1983.

2. By Application filed in this Court on 24 May 2016 he seeks to quash and have re-determined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 22 April 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 10 December 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa). 

3. The Applicant arrived in Australia on 16 February 2014 on a three month Business Visitor visa (Subclass FA-600) (Visitor visa) to attend a scientific conference. The Applicant then lodged a Protection visa application on 8 April 2014.

Claims for Protection

1. In substance the Applicant claimed to fear harm in Tunisia on the basis of his religion and his actual or imputed political opinion as a supporter of the pre-revolution regime of President Zine El Abidine Ben Ali which effectively ended in January 2011. The Applicant claimed to fear harm from Muslim Salafists, other political opponents including supporters of the post-revolutionary government and the authorities.

2. In answer to questions 38, 39 and 41 of his Protection visa application he claimed as follows:

   38. Yes I did. I was supporter of the old regime in Tunis during my tertiary days in university I belonged to an activist group of students who were supporters of the old regime. After the revolution. I was targeted being the active member of the group. I was responsible for all demonstrations conducted for the group. I was involved in all of the written material for the demonstrations. For these reasons I was targeted and threatened. I will be providing a separate Statement of Claim to support this application.

   39. I will be killed and this will be elaborated in the detail Statement of Claim.

   41. As mentioned above I have been a voice that the current government does not wish to hear. The Statement of Claim will be forwarded to you.

3. In his Statement of Claims forwarded to the Minister by email dated 26 August 2014 (Statement of Claims) the Applicant claimed:

   a)He was born in Jelma in the State of Sidi Bouzed and came from a well off family and holds an undergraduate degree in mathematics.

   b)When he commenced his tertiary education in 2003 he became active in the ‘Democratic Institutional Assembly’ (DIA) which was a political organisation made up of the students supporting the ruling party. He participated in its political meetings at the Faculty of Science level with the aim of politically educating the students and attracting them to the organisation and he was also involved in organising the university elections.

   c)After completion of his studies in 2009, he began his career of teaching in Jelma and continued coordinating activities relating to the political life of Jelma until 17 December 2010 when a political uprising began in the State of Sidi Bouzed.

   d)His fear of the unknown was intensified when President Zine El Abidine Ben Ali left Tunisia on 14 January 2011.

   e)A retribution campaign was started against the supporters of the old regime and the DIA in March 2011. It started first with verbal abuse and beatings and then proceeded to killings. The DIA was banned from all political activities.

   f)He feared for his safety because of the political upheaval and moved to live with his paternal aunt about 40 kilometres out in the countryside.

   g)He returned to the State of Sidi Bouzed where he was badly beaten and almost killed in front of the police on 18 June 2011. He obtained a medical certificate to prove his injuries and sought to report the offenders to the police but no charges were laid.

   h)He decided to move 200 kilometres away to the State of Zagouan where his sister lived. He was subsequently attacked again on 19 June 2011 when he was badly beaten and almost killed. He then went to Tunis and decided to flee the country in a bid to save his life.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely 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 to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia 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; ....

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 28 August 2014 where he expanded upon his claims.

2. In her Decision Record the Delegate noted that she had been unable to find any organisation acting as the support base of the previous regime named DIA and that the party the Applicant meant to refer to was the Constitutional Democratic Rally (RCD) which supported the ruling government in Tunisia at the relevant time and which had university groups of supporters. The Delegate found that the country information suggested that the RCD relevantly had over 2 million members or one quarter of Tunisians aged over the age of 15 years in a country with only 10 million inhabitants and she was prepared to accept that the Applicant had been a member of the RCD. However, the Delegate did not accept that the Applicant was a high profile member of the RCD Party or that he had distributed any political pamphlets or brochures as claimed. The Delegate found that the Applicant’s claimed political involvement was “vague and lacking in detail or conviction” and that he was unable to demonstrate even a limited degree of knowledge relating to opposition politics in Tunisia.

3. Accordingly the Delegate did not accept that the Applicant had been targeted for his political membership and / or activity for an opposition party or that he had been assaulted for having any political profile and that he was not a credible witness in relation to his claimed political activity. The Delegate was therefore not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch. 2 to the Migration Regulations 1994 (Cth) (the Regulations) and she refused to grant to him a Protection visa.

Decision of Tribunal

1. On 31 December 2014 the Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal.

2. At [7] – [8] of its Decision Record the Tribunal recorded the Applicant’s claims as made up to his interview with the Delegate on 28 August 2014. In these paragraphs the Tribunal noted that the Applicant had claimed that he had been an “active member” of an “activist group of students” while he was a student at university and that he was “responsible for all demonstrations conducted [by] the group”. However, the Tribunal contrasted this former evidence with evidence given by the Applicant to the Tribunal at the hearing that he had only ever been “affiliated” informally with the RCD and the student wing of the RCD, which was known as the ERCD, and that he had “never actually joined either group” and had not been a member of either the RCD or the ERCD. At [14] of its Decision Record the Tribunal recorded that in light of his evidence at the Tribunal hearing that it regarded as “misleading” the Applicant’s claims in his Protection visa application form of having been an active “member” of the ERCD.

3. At [16] of its Decision Record the Tribunal recorded the claim, made by the Applicant for the first time at the Tribunal hearing, that the sole reason why Muslim extremists came after him during and after the revolution in Tunisia was that prior to the revolution he had performed for the RCD the task of locking a local mosque or mosques between prayer periods in order to prevent mosques being used as venues for dissenting political discussion. The Tribunal recorded that when it drew to the Applicant’s attention that he had not mentioned this activity “as the reason or even one of the reasons for the harm he claimed later to have faced” in Tunisia, he agreed that he never referred to it before. The Tribunal recorded that the Applicant seemed unable or reluctant to address the Tribunal’s question about why this activity in relation to the mosque or mosques had been omitted from his claims previously. The Tribunal went on to find that the Applicant’s claim about having been involved in the mosque duties he described “was not a truthful additional detail but, rather, an untruthful embellishment”.

4. At [17] – [22] of its Decision Record the Tribunal recorded its consideration and evaluation of two Certificates of Criminal Conviction bearing the name of the Applicant which he claimed had been sent to him from Tunisia by his brother in or around January 2016. The first Certificate of Criminal Conviction dated 19 November 2014 recorded that a person bearing the Applicant’s name had been charged “with compromising external state security” and had been sentenced to 12 years imprisonment and that an appeal had been lodged in absentia but the original conviction had been affirmed. The second Certificate of Criminal Conviction dated 30 January 2015 recorded that a person bearing the Applicant’s name had been charged “with misusing his influence and relationships, real and unreal, with public or semi-public employees, receiving directly or through a third party gifts or promises for gifts or presents or benefits regardless of their nature for obtaining for other persons certain rights or privileges” and had been sentenced to six years imprisonment and a penalty of 20,000 Dinars and that an appeal had been lodged in absentia but the original conviction had been affirmed.

5. At [25] – [30] the Tribunal recorded its substantive findings in relation to the Applicant’s claims as follows:

   25. However, I find that BFT16 has provided exaggerated and unreliable information about having been a member of the ERCD and the RCD after concluding his studies. I find that he was not a member and, as noted, I have given this some weight because he initially claimed to the Department that he was.

   26. I find on the evidence before me that BFT16 has provided inconsistent and unreliable information even about having been affiliated with the RCD, particularly with regard to his claims about responsibilities he supposedly carried out for and on behalf of the former regime of President Ben Ali, such as the claim about locking the doors of mosques in between prayer times. I find that BFT16 provided unsatisfactory explanation for omitting the claim about the mosques in his evidence to the Department, particularly since he relied so strongly on this claim at the Tribunal hearing.

   27. I find that BFT16 was quite inconsistent in his evidence about his alleged assailants not being interested in his claimed electioneering because this was clearly what he said they were opposed to in earlier evidence. I am not satisfied that BFT16 ever had anything to do with locking up mosques and I find that I cannot rely on his evidence about having ever been involved in propaganda or election-related activities for the ERCD, the RCD or the old regime. Since I am not satisfied that he was involved in either of these kinds of activities, or any others, for the ERCD or RCD, and having regard to his lack of reliability as a witness in this matter, I do not accept he was assaulted in 2011 or in 2012, or ever assaulted before or since the 2011 revolution.

   28. I am not satisfied on the evidence before me that BFT16 would be imputed in the reasonably foreseeable future in Tunisia to be a former “affiliate” or supporter of the old regime of Ben Ali. Overall, I find that BFT16 has embellished evidence over the course of this application and I find that he is an unreliable witness in the present matter. I am not even satisfied that he was ever really an in-principle supporter of Ben Ali or the RCD or its student body. I am not satisfied on the evidence before me that he has any genuine interest in politics. I am not satisfied that he would proceed to be uninvolved in political activities or activism in Tunisia due to fear of persecution, because I am not satisfied on the evidence before me that he is genuinely interested in politics.

   29. In view of my findings above as to BFT16’s overall lack of credibility, I give no weight to the two purported court documents. I am not satisfied on the evidence before me that court proceedings were ever commenced against BFT16.

   30. Whereas I accepted that BFT16 might be regarded by conservative Muslims as less devout, I give no weight on the evidence before me to the suggestion that he would be singled out for mistreatment for religious reasons, let alone on the grounds of being regarded as an “infidel”.

6. In the result the Tribunal found that the Applicant was not a refugee and further that he did not face a real risk of suffering significant harm for the purposes of the complementary protection criterion and accordingly it affirmed the decision of the Delegate not to grant a Protection visa to the Applicant. 

Grounds of Attack on Tribunal Decision in this Court

1. The Applicant relied on the following Grounds:

   1. The decision was affected by jurisdictional error in that the Tribunal took into account irrelevant considerations.

   2. The decision was affected by jurisdictional error in that the Tribunal failed to have regard to relevant material or considerations.

   3. The decision was affected by jurisdictional error in that it was unreasonable.

2. I also accept as a further Ground paragraph 5 of the Applicant’s affidavit sworn on 20 May 2016 which was as follows:

   5. I kindly ask the Presiding Magistrate on my matter to consider the fact that I believe that my matter was not fairly [determined] and would like the principles of natural justice to be applied.

3. At the hearing the Applicant was unfortunately unable to expand upon or particularise his Grounds. Grounds 1 and 2 fail to identify the “irrelevant considerations” which he asserts the Tribunal took into account or the “relevant materials or considerations” to which it failed to have regard. Ground 3 does not particularise how the decision of the Tribunal is said to be unreasonable and paragraph 5 of his affidavit does not particularise or identify how he says he was not fairly treated by the Tribunal. 

Consideration

Ground 1 and 2

1. These Grounds assert that the Tribunal took into account irrelevant considerations and failed to take into account relevant considerations or material. However, in my view both Grounds fail. It is clear on the face of the Decision Record that the Tribunal considered and had regard to the Applicant’s claims and evidence as presented in his Protection visa application, Statement of Claims, the interview with the Delegate as summarised in the Decision Record of the Delegate and the oral evidence at the Tribunal hearing. The Tribunal discerned inconsistency in the Applicant’s claims at these various stages of the processing of his Protection visa application. This was entirely conventional because it is common for the purposes of criminal and civil litigation for there to be consideration and comparison of any prior inconsistent statements or evidence of a party (or witness) in the course of the assessment of the trustworthiness and veracity of that party (e.g. see s.43 of the Evidence Act 1995 (Cth)). If that party has earlier said one thing and then subsequently says another thing about the same subject matter, this may, if not minor or trivial, throw suspicion on the accuracy or credibility of that party’s evidence. Likewise, if that party makes a claim later which he had not made earlier but which might have been expected to have been made at that earlier point of time. In this context Nettle J said in SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112 at 10 as follows:

   …. it is not the law that the credit and reliability of an applicant’s evidence is irrelevant in the determination of a review of an application for protection visa. Where the establishment of facts is dependent on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“MIMIA”) at 21-22 [42] – [44] per Gummow and Hayne JJ.)

   No doubt, as SZUSH contends, refugee cases involve special considerations where credibility is in issue (MIMIA (2004) 207 ALR 12 at 33 [73(7)] per Kirby J, in dissent.) As Kirby J observed in MIMIA, “There is no necessary correlation between inconsistency and credibility in such cases”. It is necessary to keep in mind that there may be a host of ethnic, cultural, lingual, physical, behavioural and psychological considerations peculiar to refugees which, depending upon the circumstances of a given case, may explain inconsistencies that would otherwise be thought to reveal dishonesty. But, that said, it remains a process of evaluation for the tribunal of fact to determine what, if any, weight is to be placed on an applicant’s version of events; and where, as here, there were many reasons to disbelieve an applicant’s version of events it is not in error to reject it.

   In this connection see also the judgment of Farrell J in AQF17 v Minister for Immigration and Border Protection [2018] FCA 966 [45] – [47].

1. Finally, in AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205, the Tribunal in its decision had pointed to a number of inconsistencies in important aspects of the Applicant’s claims as made at various times and between her accounts and those given by her husband at an earlier Tribunal hearing. The Tribunal also considered that the Applicant’s answers were evasive and vague when those inconsistencies were put to her. In that context, Perry J said at [24]:

   [24]The existence of such inconsistencies in important aspects of the appellant’s claims, and the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory, provide a logical and rational basis for the Tribunal’s adverse credibility findings. In this regard, it is well established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451–452 (Beaumont J); Guo at 596 (Kirby J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see eg Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at [7] (Heerey J).

2. In my view, the credibility findings of the Tribunal in this case, which are of course not beyond judicial scrutiny, cannot be said to be unreasonable or without a logical, rational or probative basis or founded on objectively minor matters. Nor could they be regarded as “blanket, reflex or exaggerated adverse credit findings”: AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143 per Allsop CJ, Kenny and Bromwich JJ at 145 [11].

3. Further, I do not consider that the Tribunal did not properly consider and have regard to the two Certificates of Criminal Conviction: see [14] above. At [20] of its Decision Record the Tribunal recorded that independent country information about Tunisia appeared to indicate “…that document fraud has become somewhat of a problem in Tunisia”. At [29] of its Decision Record the Tribunal recorded its view that because of the Applicant’s lack of credibility it gave no weight to the two Certificates. It did not commit jurisdictional error in so finding. The Tribunal had come to strongly adverse views about the credibility of the Applicant’s claims and central contentions. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12]:

   [12]… It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

Ground 3 and Paragraph 5 of Affidavit

1. In my view, the Applicant has failed to establish that the decision of the Tribunal was legally unreasonable, that the Tribunal treated him unfairly, or that the Tribunal acted in breach of the principles of natural justice. There is no evidence before me that would lead to any such findings.

Conclusion

1. Accordingly, in my view the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and his Application to this Court is to be dismissed.  

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:  9 August 2018