BIZ16 v Minister for Immigration

[2017] FCCA 1896

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIZ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1896

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicants have raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

First Applicant: BIZ16

Second Applicant: BJA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1410 of 2016

Judgment of: Judge Manousaridis

Hearing date: 4 August 2017

Delivered at: Sydney

Delivered on: 11 August 2017

REPRESENTATION

First applicant in person and on behalf of the second applicant, assisted by an interpreter.

Solicitors for the First Respondent:

Mr L Leerdam of

DLA Piper

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1410 of 2016

BIZ16

First Applicant

BJA16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for judicial review be dismissed because the application does not raise an arguable casefor the relief it seeks. By that application the applicants, citizens of Fiji, seek judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicants a Protection (Class XA) visa (Protection visa).

Claims for Protection

1. In his application for a Protection visa,[1] the first applicant (applicant) claimed he left Fiji because he could not stand being treated the way he had been, that his wife (the second applicant) and child have been questioned and, that his daughter has been labelled names and bullied because of what the applicant went through.[2] The applicant claimed fear has accumulated in him causing sleepless nights, restless days and loss of appetite; that looking at and meeting soldiers and police has almost led to his committing suicide; and his workplace was watched by the police and military because of the nature of the work undertaken. The applicant, an Information Technology Specialist was questioned regarding his job and, his laptop, phone and other equipment were confiscated. The applicant claimed he was “trembling” at gunpoint on one occasion when the applicant had to report to the police and military about what he did that day at work. The applicant further claimed that he could not report these activities to the police because “they are all linked”.

   [1] CB1-26

   [2] The second applicant is the first applicant’s wife. She applied for a Protection visa as a member of the first applicant’s family unit.

2. The applicant also claimed his family is “well acquainted” with the SDL Party, the ruling party in Fiji prior to the coup, and the applicant is a member of the Fiji Democracy and Freedom Movement (FDFM) in Australia. The applicant further claimed a security company known as “Homelink Security Limited”, whose members the applicant claimed are ex-military personnel, would “love” to torment the applicant because they found out the applicant was one of the persons involved in spreading the news of their activities at checkpoints.

3. The applicant made additional claims before the delegate. The applicant claimed two of his colleagues obtained records stating the salaries of higher ranked civil servants and Ministers and circulated the information. The applicant further claimed that the two people responsible for distributing the information were investigated and their positions terminated.

The Tribunal’s reasons

1. The Tribunal “had credibility concerns with the applicant and was not satisfied the applicant told the complete truth in relation to critical aspects of the claims of the applicant”.[3] The Tribunal relied on a number of matters:

   a)First, before the Tribunal, the applicant claimed that he had extracted data from the IT system at Fiji Post about the salaries of the chief executive officer and senior managers.[4] The applicant, however, made no such claim before the delegate or in his written application.[5] Further, the applicant’s claimed motive for accessing and circulating such information, namely, the huge discrepancy between, on the one hand, the salaries of the chief executive officer and senior managers and, on the other hand, the salaries of other staff,[6] did not satisfy the Tribunal that the applicant actually accessed and circulated such information.[7] That is so because: (a) there would always be significant discrepancies in the salary levels of those in higher positions, and the Tribunal was not satisfied the applicant would suddenly feel inclined to access and circulate confidential data; and (b) the applicant had been a long-standing employee of Fiji Post having worked there for 12 years and was in a management role.[8]

   b)Second, before the Tribunal, the applicant claimed Fiji Post had in its system information about the salaries of Ministers and highly ranked public servants and politicians.[9] The Tribunal found it implausible that Fiji Post would have data regarding the salaries of government ministers and highly ranked public servants.[10]

   c)Third, the Tribunal found that the answers the applicant gave to questions about the applicant’s claims that his wife was questioned many times and his daughter had been called names and bullied “were embellished to strength[en] his overall application”.[11]

   [3] CB163, [23]

   [4] CB163, [25]

   [5] CB164, [27], [29]

   [6] CB164, [26]

   [7] CB165, [31]

   [8] CB165, [31]

   [9] CB163, [25]

   [10] CB165, [31]

   [11] CB165, [33]

2. Even if the applicant had accessed the confidential data, the Tribunal was not satisfied that, because of his accessing and circulating such data, he had a well-founded fear of persecution because of those actions, or that he faced a real risk he will suffer significant harm if he were to return to Fiji, because, on the applicant’s own evidence, the accessing of information had been officially investigated which resulted in the applicant’s two colleagues being dismissed.[12]

   [12] CB165, [32]

3. The Tribunal appears to have accepted the applicant’s claims that, after the coup of 2006, he was questioned at checkpoints by armed personnel, and that this last occurred in 2006. The Tribunal was satisfied, however, that the applicant was not specifically targeted for this treatment. The Tribunal was also satisfied, based on country information it identified, that the political situation in Fiji has stabilised following the 2014 election, that there is no on-going systematic harassment of ordinary Fijian citizens, and that the incidents to which the applicant referred occurred in 2006 during a heightened time of military activity.[13]

   [13] CB165-166, [34]

4. The Tribunal did not accept the applicant’s claim based on his being an IT worker because enquiries the Tribunal made of the Department of Immigration and Border Protection Country Information Service about whether there were any reports of IT workers being targeted by the authorities in Fiji revealed no information could be sourced that verified the applicant’s claims.[14]

   [14] CB166, [35]

5. The Tribunal also did not accept the applicant’s claims based on his political affiliations with the SDL Party, and his membership in Australia of the FDFM. Relying on the country information to which it referred in its reasons, and the applicant’s evidence on the basis of which the Tribunal found the applicant had a very low key political engagement, the Tribunal was satisfied the applicant “is not a person of interest in Fiji for his political activities in either Fiji or in Australia”.[15]

   [15] CB166-169, [36]-[44]

Grounds of application

1. The grounds of application comprise 30 paragraphs, none of which refer to the Tribunal’s decision. The grounds consist of a statement given in the name of the applicant. After stating the name of the applicant, paragraph 1 states the applicant is “seeking political asylum in Australia”. The remaining grounds contain assertions of fact and submissions in support of a claim for asylum. Further, the grounds on which such claim is based go beyond the grounds on which the applicant relied in his application for a Protection visa.

2. The applicant also relies on an affidavit he filed with the application. Like the grounds stated in the application, the affidavit does not address the Tribunal’s decision but instead purports to state a claim for protection. Further, the grounds on which the applicant relies in the affidavit go beyond the grounds on which the applicant relied in his application for a Protection visa.

3. The applicant, who is not represented, made no submissions other than submissions in support of an application for an adjournment which, for reasons I delivered at the hearing, I refused. The second applicant was in court, and I inquired whether she wished to make any submissions. I was informed that she did not wish to make any submissions.

4. The grounds stated in the application and in the affidavit disclose no arguable case of jurisdictional error by the Tribunal. There is nothing in the Tribunal’s decision or in the material that was before me that is capable of suggesting the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  11 August 2017