BIL17 v Minister for Immigration

[2017] FCCA 3092

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIL17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3092

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for protection (class XA) visas – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal relied on outdated country reports – whether the Tribunal failed to consider the complementary protection criterion – no jurisdictional error made out – application dismissed.

Legislation:

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

First Applicant: BIL17

Second Applicant:  BJQ17

Third Applicant: BJR17

Fourth Applicant: BJS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 948 of 2017

Judgment of: Judge Street

Hearing date: 8 December 2017

Date of Last Submission: 8 December 2017

Delivered at: Sydney

Delivered on: 8 December 2017

REPRESENTATION

Solicitors for the Applicants: Mr R Chaudhry
Chaudhry Legal

Solicitors for the Respondents: Mr A Moss
Clayton Utz

ORDERS

1. The application in a case is dismissed.

2. The application is dismissed.

3. The first and second applicants pay the first respondent’s costs fixed in the amount of $7,700.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 948 of 2017

BIL17

First Applicant

BJQ17

Second Applicant

BJR17

Third Applicant

BJS17

Fourth Applicant

And

MINISTER FOR IMMIGRATION & 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 10 March 2017 affirming a decision of the delegate not to grant the applicants protection (class XA) visas.

2. The first and second applicants are husband and wife and made claims for protection. The third and fourth applicants are members of the family unit in respect of the first and second applicants. The applicants were found to be citizens of Fiji and their claims were assessed against that country. The first applicant’s migration history is as follows:

   17/11/2010 – applicant first lodged a subclass 676 visitor visa application.

   18/11/2010 – applicant was granted a subclass 676 visitor visa.

   15/12/2010 – applicant first arrived in Australia on a subclass 676 visitor visa.

   2/1/2011 – applicant first departed Australia.

   7/10/2011 – applicant lodged a subclass 676 visitor visa application

   12/10/2011 – applicant was granted a subclass 676 visitor visa.

   15/1/2012 – applicant last departed Australia.

   23/4/2014 – applicant lodged a subclass 600 visitor visa application.

   2/5/2014 – applicant was granted a subclass 600 visitor visa.

   30/5/2014 – applicant last arrived in Australia on a subclass 600 visitor visa which remained valid until 30/8/2014.

   26/8/2014 – applicant lodged a PV application.

3. The second applicant’s migration history is as follows:

   17/11/2010 – applicant first lodged a subclass 676 visitor visa application.

   18/11/2010 – applicant was granted a subclass 676 visitor visa.

   15/12/2010 – applicant first arrived in Australia on a subclass 676 visitor visa.

   2/1/2011 – applicant first and last departed Australia.

   11/7/2014 – applicant lodged a subclass 600 visitor visa application.

   15/7/2014 – applicant was granted a subclass 600 visitor visa application.

   25/7/2014 –applicant last arrived in Australia on a subclass 600 visitor visa which remained valid until 25/10/2014.

   26/8/2014 – applicant lodged a PV application.

4. The first applicant claimed to fear harm from Major S of the Fiji Military Forces. The first applicant worked as a technical standards compliance officer with the Land Transport Authority from October 2006 to August 2015. During that time, the first applicant claimed he inspected a motor vehicle belonging to Major S’s brother and certified its compliance with the relevant standards. The applicant alleged that there was a threat arising from the demand that he pay for the repairs for the vehicle and that he would be brought to the naval base and never return home if he refused.

5. The first applicant also feared that he would be taken to the naval base by the military due to his participation in protests against the Prime Minister in August 2014 in Sydney. The first applicant claimed that he would have been observed at those protests and that footage had been taken by the ABC and disSnated widely. The first applicant claimed the military had repeatedly come to the family home and questioned the second applicant about the first applicant’s whereabouts and traumatised the children.

6. The second applicant claimed to fear harm of her husband’s involvement with Major S and soldiers regularly visited her home to inquire about the first applicant’s whereabouts and she had heard stories of civilians being taken to military barracks and killed. The second applicant also claimed to fear harm as a result of her participation in protests against Prime Minister Bainimarama in Sydney. The second applicant also claimed that she was visible in relation to protests in Sydney and believed her employment was terminated because of her protest and claimed she had been warned by a former superintendent and colleague if she returned to Fiji she would be taken.

7. On 22 February 2015, the delegate found the applicants failed to meet the criteria for a grant of a visa under the Act and refused the application.

8. The applicants applied for review to the Tribunal on 19 March 2015. By letter dated 27 July 2016, the applicants were invited to appear before the Tribunal on 30 September 2016. Submissions were provided to the Tribunal by a person who was not a legal practitioner and who is known as Ms Oni Kirwin. This person has before this Court purported to represent applicants by placing her address on applications. This is a practice that this Court has observed is improper as only legal practitioners can appear to represent a party in proceedings in Court.

9. The Tribunal in its reasons, delivered on 10 March 2017, identified the background to the application for review. The Tribunal set out the relevant law. The Tribunal summarised the applicant’s claims and evidence at the time the visa application was before the delegate and summarised the other material that was provided in support of the application and the submissions that were advanced by Ms Oni Kirwin’s charity organisation on behalf of the applicants. It is not appropriate for a person who is not a registered migration agent or not a lawyer to represent parties before the Tribunal. Be that as it may, the Tribunal summarised the submissions made by Ms Oni Kirwin on behalf of the applicants.

10. The Tribunal summarised what occurred at the hearing at which the applicants appeared to give evidence and present arguments. The Tribunal also summarised the additional information that was provided, including an article in the Fiji Sun and summarised the evidence about the first and second applicants. The Tribunal referred to the second applicant’s evidence about having had pictures taken of her at protests in Australia and that she would be taken to a military camp. The Tribunal explored with the second applicant the attendance at Ms Oni Kirwin’s organisations and meetings and said she was an ordinary member.

11. The Tribunal identified the submissions that were provided to the Tribunal. The Tribunal accepted that both applicants were civil servants in supervisory positions in Fiji. The Tribunal accepted the second applicant had an employed position that required her to have contact with the Prime Minister’s office. The Tribunal accepted that the second applicant formed the view that public funds were being used inappropriately. The Tribunal was not satisfied, on the second applicant’s evidence, that the second applicant was aware of any specific, sensitive or incriminating information about that office’s dealings or that she held a position within the civil service of particular prominence.

12. The Tribunal accepted that the first applicant was involved in a dispute with Major S over a certificate of fitness he issued in relation to his brother’s van. The Tribunal was not satisfied the first applicant was taken on a second occasion to a vacant lot where he was threatened with a rifle by soldiers and pushed. The Tribunal noted that that claim was made for the first time at the Tribunal hearing. The Tribunal was not satisfied that such a significant event, if it genuinely occurred, would slip the first applicant’s mind when he was asked about his experiences of past harm in Fiji.

13. The Tribunal was not satisfied that Major S or his colleagues were visiting the applicant’s home on a near daily basis whilst the applicant remained in Fiji or once or twice a week after his departure, as suggested by the second applicant at the hearing. The Tribunal found it was implausible that such frequent visits would be made given the nature of the dispute. The Tribunal found that Major S’s interest in the first applicant stemmed from a desire to obtain a financial advantage or simply a show of power. The Tribunal was not satisfied there is a real risk that Major S or his associates would have any ongoing interest in the first applicant arising from their past dispute. The Tribunal was prepared to accept that the applicants had been recognised whilst undertaking activities of protest by close associates of the Prime Minister, with whom the applicants have worked in the Fiji civil service.

14. The Tribunal was satisfied on the evidence before it that the applicants genuinely hold the opinions they have expressed in their application and at the protests that they have attended. The Tribunal was satisfied that the applicants have engaged in conduct in Australia otherwise than for the sole purpose of strengthening their protection claims.

15. The Tribunal identified, from country information, that there had been a shift, in the environment for public expression of criticism of the government since the 2014 elections. The Tribunal found that the applicants do not hold elected offices within the organisations and had no public profile as leaders of the organisations. The Tribunal noted both applicants describe themselves as “ordinary members”. The Tribunal identified the applicants as being part of a cohort of approximately 600 indigenous Fijians who have joined Ms Oni Kirwin’s organisation in the last couple of years.

16. The Tribunal carefully considered the public warning reportedly given by the Fijian Prime Minister and was satisfied that it may have been made in reference to Ms Oni Kirwin and senior leaders of her Australian organisation. The Tribunal was not satisfied the applicants’ activities in connection with Ms Oni Kirwin and her organisations, including their presence at protests and social media activities, are of a nature that would lead to a real risk or chance of them being suspected of inciting sedition or urging political violence in Fiji.

17. The Tribunal was not satisfied on the country information that ordinary Fijians, even if they are known to oppose the government or its policies, face a real risk of serious or significant harm. The Tribunal considered the applicants’ circumstances cumulatively, including their prior dispute with members of the military, their roles in the Fijian civil service, the nature of their political activities in Australia and the publication of their photographs. The Tribunal was not satisfied the applicants would be unable to find alternative employment, such that there is real chance or real risk of them suffering economic harm amounting to persecution or significant harm as defined. The Tribunal was prepared to accept that there is a real chance or risk that the applicants may face some criticism or verbal insults from former colleagues, including members of the military, ­who are aware of and disapprove of the applicants’ activities in Australia. The Tribunal was not, however, satisfied that such treatment would, of itself, amount to serious harm.

18. The Tribunal was not satisfied there is a real chance or risk of the applicants suffering any other physical or mental harm which would amount to persecution or significant harm such as arrest, being taken to the army barracks or a naval base and mistreated, monitored, intimidated or harassed. The Tribunal did not accept, having regard to the evidence, that the applicants have a sufficiently prominent or public political profile to cause them to be of interest to the Fijian authorities should they return to Fiji now or in the reasonably foreseeable future.

19. The Tribunal was not satisfied that the claims advanced at the hearing and in Ms Oni Kirwin’s submissions are supported by the independent country information. The Tribunal was not satisfied the applicants face a real chance or a risk of serious or significant harm for any reason relating to their religion. The Tribunal made reference to the applicants fearing harm as indigenous Fijians. The Tribunal was not satisfied there is a real chance or risk of the applicants being seriously or significantly harmed as a consequence of their indigenous Fijian ethnicity.

20. The Tribunal was not satisfied that the applicants are persons in respect of whom Australia has protection obligations and found the applicants failed to meet the criteria under s 36(2)(a) of the Act. The Tribunal was not satisfied that the applicants are persons in respect of whom Australia has protection obligations under 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 29 March 2017. Orders were made by a Judge of the Court on 5 May 2017 providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions. Those orders also stood the matter over into a callover list in 2018. On 26 September 2017, this Court made orders fixing the matter for hearing today and vacating the callover date.

Application in a case for an adjournment

1. On 29 November 2017, an application in a case was filed by a lawyer on behalf of the applicants, effectively seeking to adjourn the proceedings to reinstate the callover date. That application was supported by an affidavit that failed to candidly identify the circumstances in which the lawyer had been identified and retained, or explain any reason why the matter was not able to be prepared in time for today’s hearing.

2. The application on its face, and the affidavit in support, was, on its face, an endeavour to delay proceedings. Legal practitioners owe a duty to this Court which is higher than their duty to the client. To attempt to delay or protract proceedings is a breach of that duty. The application in a case should not have been filed by a legal practitioner. The Court received submissions in support of the application which were in writing. Mr Chaudhry also sought to advance that his clients wanted more time. The application advanced by Mr Chaudhry should not have been advanced in that fashion. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice in the circumstances of the present case. It was for these reasons that the Court made an order for the application in a case to be dismissed.

3. Mr Chaudhry was able to prepare written submissions which identified four alleged errors. Whilst those submissions should have been the subject of a proposed amended application, the Court permitted Mr Chaudhry to seek to rely upon the grounds identified in the submissions.

4. The ground identified in the originating application is as follows:

   Facts in my application and ultimate consequences to myself and my family have not been understood.

5. That ground patently fails to identify any jurisdictional error. The four grounds identified in paragraph 47 of Mr Chaudhry’s submissions are as follows:

   a. considered irrelevant considerations or failed to take into account relevant considerations hence suggesting that; and/or

   b. placed reliance on outdated country reports and/or failed to take into account that State sponsored harassment and torture of civilians still continue; and/or

   c. acting irrationally; and or

   d. failed to properly consider the complementary protection criterion.

Ground 47(a)

1. In relation to ground (a) of the applicant’s submissions, the matters identified in the submissions do not identify any irrelevant consideration that was taken into account by the Tribunal. The Tribunal was entitled to take into account the DFAT country information report. It was a matter for the Tribunal to determine what country information the Tribunal accepted. There is no irrelevant consideration that the Tribunal took into account giving rise to any jurisdictional error as alleged in ground (a) of the applicant’s submissions. In relation to the allegation of the failure to take into account a relevant consideration, it is apparent from the Tribunal’s reasons that the Tribunal did refer to the Constitution in paragraph 127 of its reasons.

2. The Court does not accept that there was any relevant consideration that the Tribunal failed to take into account. On the face of the Tribunal’s reasons, the Tribunal engaged in orthodox review of the applicants’ claims and evidence and made findings dispositive of the applicants’ claims that were open on the material before the Tribunal for the reasons given by the Tribunal summarised above. Those adverse findings cannot be said to lack an evident and intelligible justification. On the face of the material before the Court, the Tribunal complied with its obligations under the statutory regime. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review by giving the applicant an opportunity to put on new information and submissions. No jurisdictional error as alleged in ground 47(a) of the applicant’s submissions is made out.

Ground 47(b)

1. In relation to ground (b) of the applicant’s submissions, it is apparent that the Tribunal took into account the latest DFAT report that was before the Tribunal. It is also apparent that the Tribunal took into account, in its reasons, the article to which Mr Chaudhry referred in respect of the Prime Minister’s threat. The adverse findings by the Tribunal were open for the reasons given by the Tribunal as summarised above. There is no failure by the Tribunal to take into account country information. The country information that the Tribunal placed weight on was a matter for the Tribunal. There is no substance in the contention that there was an outdated country report upon which the Tribunal relied. No jurisdictional error is made out by ground (b) of the applicant’s submissions.

Ground 47(c)

1. Ground (c) of the applicant’s submissions, in substance, sought to attack the findings of the Tribunal in ground 142. That paragraph was as follows:

   The Tribunal is also prepared to accept that there is a real chance or risk that the applicants may face some criticism or verbal insults from former colleagues, including members of the military such as SV, who are aware of an disapprove of the applicant’s activities in Australia. The Tribunal is not satisfied that such treatment would in itself amount to serious or significant harm. Nor is the Tribunal satisfied that there is a real chance or risk of the applicants suffering any other physical or mental harm which would amount to persecution or significant harm such as arrest, being taken to the army barracks or naval base and mistreated, monitoring, intimidation or harassment. The Tribunal does not accept, having regard to the evidence, that the applicants have a sufficiently prominent or public political profile to cause them to be of interest to the Fijian authorities, should they return to Fiji now or in the reasonably foreseeable future.

1. The allegation of irrationality is without substance. The reasoning as to not being satisfied of serious harm or significant harm albeit accepting a chance or risk of insults and criticism is not illogical or irrational. Those adverse findings were open on the material before the Tribunal for the reasons given by the Tribunal. Those adverse findings cannot be said to be unreasonable. No jurisdictional error as alleged in ground (c) of the applicant’s submissions is made out.

Ground 47(d)

1. In relation to ground (d) of the applicant’s submissions, the criticism advanced in that regard is without substance. The Tribunal correctly identified the relevant law in respect of complementary protection. On the face of the Tribunal’s reasons, the Tribunal correctly applied the relevant law as summarised in the above reasons. Those adverse findings were open to the Tribunal for the reasons given by the Tribunal summarised above. There was no failure to properly consider the complementary criteria. No jurisdictional error as alleged in ground (d) of the applicant’s submissions is made out.

2. Accordingly, the application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 May 2018