BJR15 v Minister for Immigration

[2016] FCCA 1403

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJR15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1403

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings against the applicant – whether the Tribunal failed to take relevant considerations into account – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: BJR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1959 of 2015

Judgment of: Judge Street

Hearing date: 9 June 2016

Date of Last Submission: 9 June 2016

Delivered at: Sydney

Delivered on: 9 June 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms R Krishnan
Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1959 of 2015

BJR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 29 June 2015, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Yemen and his claims were assessed on that basis.

2. The applicant arrived in Australia on 10 September 2013 on a tourist visa, having effectively spent his life in Saudi Arabia. The applicant provided to the Tribunal a Yemeni passport. The applicant claimed to fear harm as a result of a partnership dispute of his father and alleged steps taken by his former partner's son, including the abduction of his brother, and the applicant fears the same will occur to him.

3. The applicant applied for protection on 28 October 2013 and a delegate of the Minister refused the application on 1 April 2014. On 4 April 2014 the applicant applied for review, and on 26 November 2014, a differently constituted Tribunal affirmed the decision under review. 

4. That decision was quashed by consent on the basis of the failure of the earlier and differently constituted Tribunal to accept the applicant's request for an extension of time to arrange translation of Court documents by reason of which it was said that the decision of the earlier Tribunal was unreasonable and resulted in jurisdictional error.  Those Court documents have again been left untranslated by the applicant and were otherwise illegible.

5. The applicant was invited to attend a hearing by letter dated 2 October 2014, to be held on 22 October 2014. The applicant attended that hearing to give evidence and present arguments, and was represented by his migration agent. After the hearing, the applicant's migration agent provided further submissions dated 31 October 2014. The Tribunal identified the applicant's claims and evidence and said that it was not satisfied the applicant's evidence in relation to the claims concerning the dispute between his father and his father's partner were truthful. The Tribunal provided detailed reasons, based on the evidence, for the adverse credibility findings.

6. In relation to a subpoena and letter provided by the applicant in support of the applicant's claims, the Tribunal found that it was not satisfied the documents were genuine and found that the applicant had fabricated those documents in order to support his claims. The Tribunal made express reference to the untranslated Court documents that had been provided to the earlier Tribunal, and the Tribunal asked the applicant why he had not submitted the documents with his application instead of waiting until he was asked for them before the Tribunal.

7. The applicant suggested his solicitor had forgotten to give them to the department.  The Tribunal expressly noted that the applicant had not provided a translation of the documents and that he put forward the reason for this was because they were not legible. It was in those circumstances the Tribunal was not able to place any weight on those documents. The Tribunal referred to a statement provided by the applicant's brother, that in light of its overall concerns, was not satisfied that that document should be given more than limited weight.

8. The Tribunal found that the concerns in relation to the applicant's evidence were so significant that it was not satisfied the applicant had been truthful in relation to the alleged dispute involving his father and his father's partner.  The Tribunal found it was not satisfied that the applicant's father was in a commercial dispute with his former partner, or that the applicant's brother was abducted in 2012, or that there had been any threat made against the applicant.

9. The Tribunal found that it was not satisfied there was a real chance of the applicant being harmed as a result of any dispute, nor being imputed with any anti-Houthi political opinion as a result of any such dispute. The Tribunal referred to the applicant's marriage in Australia and noted that the applicant asserted no fear in relation to returning to Yemen because of his marriage, and the Tribunal found it was not satisfied there was a real chance of any harm because of his marriage.

10. The Tribunal referred to the applicant's claims concerning his lack of connection with Yemen and found that it was not satisfied there was a real chance of the applicant being harmed as a result of living his whole life outside Yemen. The Tribunal referred to the applicant being a Sunni and that he had earlier raised fears about returning to Yemen by reason of being a Sunni. The Tribunal raised with the applicant the country information that did suggest that although clashes between Houthis and Salafists, the country information does not suggest that Sunnis as a group are targeted for harm, and that the applicant agreed.

11. It was in those circumstances the Tribunal found that there is no real chance of the applicant being harmed as a Sunni in Yemen or as a Sunni returning from Australia or Saudi Arabia. The Tribunal considered the issue of general violence and was not satisfied that there is a real chance of the applicant being harmed by the Houthi because of his actual and imputed political opinion. 

12. The Tribunal was not satisfied that there is a real chance of the applicant being harmed for any convention reason. The Tribunal was not satisfied that there is a real chance of the applicant being harmed for any other convention reason. The Tribunal found it is not satisfied there is a real chance of the applicant being harmed for any of the reasons advanced and the Tribunal found that the applicant was not a person who satisfied the criteria under s.36(2)(a).

13. The Tribunal turned to the issue of complementary protection and found that it was not satisfied that there is a real risk of the applicant being harmed by reason of any of the claims advanced. The Tribunal found, having considered the applicant's claims individually and cumulatively, that it was satisfied that it was not satisfied that there were substantial grounds for believing that there is a necessary and unforeseeable consequence of the applicant being removed from Australia to Yemen, there is a real risk he will suffer significant harm.

14. It is in those circumstances the Tribunal found that the criteria under s.36(2)(aa) was not satisfied and affirmed the decision of the delegate.

15. On 13 August 2015 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  The applicant has filed an affidavit, annexing the transcript. 

16. The application identifies the following grounds.

    1. The Refugee Review Tribunal again misunderstood my claim and made a decision on assumption that my father was not in a commercial dispute and that my brother was not abducted in 2012. Such finding is not based on probative evidence.

    2. I reserve my right to provide transcript which will demonstrate that my evidence was misunderstood by the Member of the Tribunal.

17. At the beginning of the hearing the Court explained to the applicant that this was a final hearing to determine whether or not the Tribunal’s decision was affected by 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.

18. The Court explained that in summary this meant the Court was determining whether the decision was made lawfully or whether the decision was made fairly.  The Court explained that it would identify the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and hear submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

19. In relation to ground 1, there is nothing in the reasons of the Tribunal to support the proposition that the Tribunal misunderstood the applicant's claims and evidence. There has been no reference to the transcript identifying any suggested misunderstanding and, having reviewed the transcript, there is nothing on its face that discloses any misunderstanding of the applicant's claims.  It is apparent from the transcript that the Tribunal raised with the applicant the credibility concerns in relation to the applicant's claims.

20. There was no assumption by the Tribunal, as suggested in ground 1.  Rather, the Tribunal carefully evaluated the applicant's claims and evidence and made adverse findings in relation to whether the applicant's father was in a commercial dispute and whether his brother was abducted.  Those adverse findings were open on the material before the Tribunal.  It is apparent that the Tribunal addressed the documentary material relied on by the applicant, as well as the applicant's evidence.  It was a matter for the Tribunal to determine what weight to give the evidence adduced, and the adverse findings in relation to the documentary material, as well as in relation to the applicant's credit, were open on the material before the Tribunal. 

21. The proposition that the Tribunal's adverse findings were in relation to their father not being in a commercial dispute and his brother not being abducted, lacked probative evidence, is without substance.  There was a reasonable and logical basis for the adverse findings by the Tribunal.  Ground 1 fails to make out any jurisdictional error.

22. Ground 2 does not articulate any jurisdictional error.  On the face of the material before the Court, the Tribunal complied with the statutory regime and there is nothing in the transcript or the Tribunal's reasons to reveal any want of procedural fairness to the applicant.  Ground 2 fails to make out any jurisdictional error.

23. From the bar table, the applicant submitted that the Tribunal had said that there was no proof or evidence and that he had, in fact, provided evidence in relation to his brother's abduction.  It was a matter for the Tribunal to determine what weight to give the evidence adduced by the applicant and it is clear from the Tribunal's reasons that it referred to the subpoena, letter, statement and untranslated documents in arriving at its adverse findings.  Those adverse findings cannot be said to lack an evident and intelligible justification. 

24. The applicant sought to maintain that the documents were genuine, and disputed the contention that it was open for the Tribunal to find that they were forged. It is apparent from the transcript that the genuineness of the documents was a matter raised by the Tribunal with the applicant and that adverse finding was open to the Tribunal. In substance, what was said by the applicant from the bar table invited an impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error.

25. For these reasons the application is dismissed.

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

Associate: 

Date:  16 June 2016