BLD15 v Minister for Immigration
[2015] FCCA 3467
•22 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLD15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3467 |
| Catchwords: COSTS – Whether quantum of costs claimed by first respondent is reasonable – whether costs should be fixed or assessed – whether applicant’s actions have added to the costs incurred by the parties – costs fixed against applicant. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 91R(3), 425, 476 |
| SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 |
| Applicant: | BLD15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2004 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 22 December 2015 |
| Date of Last Submission: | 22 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms U Okereke-Fisher |
| Solicitors for the Applicant: | Shelly Legal |
| Solicitors for the First Respondent: | Mr A Keevers Sparke Helmore |
ORDERS
Leave is granted to the applicant to rely upon the amended application filed on 15 December 2015.
The amended application filed on 15 December 2015 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2004 of 2015
| BLD15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 the Tribunal made on 12 June 2015 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant is a citizen of Rwanda who first arrived in Australia on 20 June 2011 holding a TU subclass 576 visa, and departed on 9 November 2012. The applicant again arrived in Australia on 25 November 2012, holding a TU subclass 576 student visa and applied for protection on 28 February 2013.
The applicant’s alleged fears of persecution arise out of his involvement in the Rwandese Patriotic Front (RPF), his alleged activities in that organisation and his alleged defection from that organisation to a role in the RNC. The Tribunal found the applicant not to be a credible witness and indeed found that the applicant had engaged in conduct involving the RNC in Australia for the purpose of strengthening his claim to be a refugee under the Convention within the meaning of s.91R(3).
The Tribunal said that, having considered cumulatively its concerns in relation to the applicant’s credibility, it found the applicant was not a reliable witness and that his account of events on which his protection claims are based are not true.
The Tribunal carefully summarised the extensive claims of the applicant, having identified the applicant’s history and migration history. The Tribunal also summarised the interview with the applicant and the delegate on 2 August 2013, as well as the further evidence that was received prior to the hearing which was held on 12 March 2015. A transcript of the hearing was tendered.
At the commencement of the transcript steps were taken by the Tribunal to confirm that the applicant understood what was occurring. The Tribunal member identified the process that would be undertaken and identified the importance of the applicant being able to fully participate in the hearing and to give evidence. The Tribunal directly sought to clarify with the applicant his proficiency in English and identify that it was his choice and that he could present his claims in English if he wished.
The applicant made clear he wished to proceed in English. The applicant’s adviser also raised with the applicant whether he would be able to express his opinion, to which the applicant responded in the affirmative, and the adviser also confirmed that the evidence could be taken in English. The Tribunal member identified that the hearing process would be one where the applicant should raise any concern if he was not able effectively to communicate and emphasised to the applicant it was important that the applicant understood everything the Tribunal member said.
It is apparent, from having reviewed the transcript as a whole, that the applicant had a genuine hearing and at no stage during the hearing did the applicant convey any inability to understand the questions or to articulate his claims and present evidence and arguments. This is a case where the applicant’s proficiency with English is well apparent from his statement that he prepared and signed in support of his claims which was both lengthy and highly articulate.
During the course of the hearing it is apparent that on a number of occasions, at 38, 41, 54, 82 and 83, that the Tribunal member was taking particular care to ensure that he understood the meaning of the answers being given by the applicant. No evidence was put on to suggest that there was any identified question or topic that the applicant had been unable to understand or properly articulate a response.
The grounds of the application filed on 15 December 2015, which is effectively the third application by the applicant, are as follows:
1. GROUND ONE
Jurisdictional Error - Failure to determine Applicant's claim and an integer of the Applicant's claim.
Particulars
• The Refugee Review Tribunal (“Second Respondent”) failed to determine an aspect of the applicant's claim and an integer of the applicant's claim for protection, namely whether:
(i) there were 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 applicant he would be subject to serious or significant harm by reason of his previous association with the Rwandese Patriotic Front (“RPF”), his fall out with the RPF during the 2003 referendum. presidential and parliamentary elections, particularly his opposition to the RPF's practice of vote-rigging [CB 28]; and
(ii) threatening telephone calls were made during the 2008 Parliamentary elections directing the applicant to stay at home during the duration of the campaign or risk getting killed. [CB299, Para 8 (m)]
• First, the applicant's primary claim was that he was at risk of persecution if he were to return to Rwanda because of his close association with the RPF, his subsequent fall out with the RPF the harm which he had experienced while he was in Rwanda as a result of that association (“Claim A”) and his subsequent involvement with the Rwanda National Congress (“RNC”), an exiled opposition party (“Claim B”). In response to the question why he claimed to be at risk of persecution on return, the applicant provided in details evidence of his fallout with the RPF [CB 28] and [CB 300, Para 8].
• In deciding whether the applicant met the refugee criterion in 36(2)(aa), the Tribunal concluded that:
“that there are no grounds for believing that there is a real risk he will suffer significant harm on that basis as a necessary and foreseeable consequence of him being removed from Australia to Rwanda.” CB 325, Para144]
•·The basis in question was tribunal's finding that the applicant is
“not a genuine or committed RNC member or supporter and that he·would not and would not wish to engage in RNC or other political activities in opposition to the RPF on return to Rwanda” [CB325 Para 144]
•·However the Tribunal did not turn its mind to the applicant's Claim A and as such failed to record a finding (based on Claim A) on whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country there is a real risk that he will suffer significant harm for reasons of his past dealings with RPF and subsequent fall out as outlined in CB 300, Para 8.
• An integer or element of applicant's Claim A was that he had received threatening telephone calls during the 2008 Parliamentary elections directing the applicant to stay at home during the duration of the campaign or risk getting killed [CB 299, Para 8(m)].
• In order to discharge its statutory review function, the Tribunal was required to consider the applicant's claims and their integers. In the given circumstances here, the Tribunal was obliged to determine whether or not it accepted that the threatening telephone calls had been made and, if it found that they had, to proceed to determine whether it accepted the applicant's claims that he was threatened with the words “he might be killed” [CB 299, Para 8(m)] and that such threats ·were made because of an adverse political opinion attributed to him by the RP.F. If the Tribunal made findings of fact which were favourable to the applicant on these matters, they would be material in that they could indicate that, contrary to the Tribunal's ultimate finding [CB 325, Para 144), the applicant faced significant harm on return to Rwanda not only in relation to his activities with the RNC but also in relation to his political opinion on RPF practices, past dealings and fall out with the RPF.
…
4. GROUND FOUR
Jurisdictional Error – Stating findings without supporting evidence
• The Tribunal committed jurisdictional error by stating findings without supporting evidence.
• In considering the refugee criterion in 36(2)(aa} the Tribunal arrived at the conclusion that
“that there no grounds for believing that there is a real risk he will suffer significant harm on that basis as a necessary and foreseeable consequence of him being removed from Australia to Rwanda", [CB 325~ Para 144]
• The Tribunal was content to proceed on the basis that, a real risk of suffering significant
harm does not exist because the applicant would not wish to “practice his political belief in support of the RNC or any similar group on return to Rwanda” [CB 325, Para 144]. The applicant considers the Tribunal findings on this point to be speculation and baseless, given the applicant's background, applicant's discussions with RNC members on what they need to do to be strong and not fearful of the government and the need to "take the country to another level” [Pg 20, 12 March 2015 Interview].
• With respect to the Tribunal, that reasoning was inadequate to discharge the Tribunal’s review function in respect of this matter. That is because:
(a) Given the applicant's political experience, political activity with RNC Australia and previous fall out with the RPF prior to leaving Rwanda, it is far-fetched to conclude that the Applicant would not wish to engage in RNC or other political activities in opposition to the RPF on return to Rwanda.
(b) Equally significantly, even if the speculation that the applicant may cease all interactions with the RNC upon his return to Rwanda, that does not erase the fact that he is a member of the Australian branch of the RNC and had carried out activities with this group whilst in Australia. It was then incumbent on the Tribunal to turn its mind to the significance of the admission in Dr Rudasingwa's admission that “In Rwanda, anybody suspected of having any connection with RNC is harassed, made to disappear, jailed, killed or forced to flee the Country)” [CB 103]
(c) The tribunal's speculation does not address the disillusion that led the applicant to move away from RPF. In fact it assumes that the applicant will find ways of suppressing his political beliefs and accept the practices of the RPF including vote rigging, neglect of youth projects and corruption.
…
6. GROUND SIX
The RRT failed to apply section 425 of the Migration Act.
Particulars
The Applicant was denied an opportunity to give evidence and present arguments in circumstances he was denied an interpreter in languages he was fluent in and where undertakings to confine the hearing to matters of generality were not complied with.
Counsel for the applicant confirmed that grounds 2, 3 and 5 were abandoned. Counsel for the applicant also indicated that the alleged integer in ground 1 relating to the threatening telephone calls during 2008 was also abandoned as a particular.
In relation to ground 1, the substance of the applicant’s argument was that the applicant’s summary of background in relation to claims to be at risk of persecution included detail of his association and activities with the RPF, and that the Tribunal did not properly deal with in relation to s.36(2)(aa) the claim that the applicant would suffer significant harm by reason of his association and activities with the RPF.
Counsel for the applicant developed an argument that paras.8(e), (h), (i), (j) and (k) identified activities by the applicant or associations in his activities, by reason of which he had an independent claim of risk of significant harm or the ground of complementary protection. Counsel for the applicant accepted that the Tribunal had rejected the applicant’s claims, including those identified in para.8 so far as s.36(2)(a) is concerned, by reason of the adverse findings in paras.133 and 134, which are as follows:
133. Accordingly, for all of the above reasons, in light of its finding that he was not a reliable witness, the Tribunal has no confidence in accepting, and does not accept, that his evidence about what occurred to him in Rwanda with regard to the RNC or his claims to have been mistreated by the ruling party because of an adverse political opinion attributed to him by the RPF, were based on his personal or actual experiences, and considers it was fabricated to create a claim to be owed protection. On the evidence before it, the Tribunal does not accept that he ever had any association or dealings with the RNC in Rwanda, or that he ever met with, or had dealings or communications with, people who were, or would be, associated with the RNC or any other group hostile or opposed to the RPF, for the purposes of organising, facilitating or mobilising people to join a political group or party that was or would become the RNC. On the evidence before it, the Tribunal does not accept and rejects all of his evidence about his claimed involvement in activities that had any relation to what might reasonably be called 'opposition politics' or matters that were opposed to the ruling party, the RPF.
134. For these reasons, it does not accept his claim that he was ever a person of adverse interest to the RPF or the Rwandan government or any of its agents, or that he was ever mistreated by the RPF or any other group or person in Rwanda, and it does not accept his claims to have been threatened, warned, put under surveillance or monitored, or abducted, detained, tortured or assaulted, or subjected to a failed ambush, or to have been mistreated in any other way in Rwanda, or in Kenya, Tanzania and Uganda. For these reasons, on the evidence before it, the Tribunal does not accept that, since he departed, his brother, or anyone else associated or related to him, has been mistreated in anyway because of anything to do with him, or that the RPF has put him, or any person related to or associated with him, under surveillance or monitoring.
Counsel referred to paras.144 and 146 of the Tribunal’s reasons in relation to complementary protection and advanced that there was a failure to make a clear finding in relation to the applicant’s claims and fears identified in para.8 arising from his activities and association with the RPF. Counsel for the applicant also relied upon the applicant’s detailed answers in relation to why he left Rwanda and also the answer in para.45 to the question:
Why do you think this will happen if you go back?
The second paragraph in the answer to that question identified the important link between the applicant’s departure or alleged defection from the RPF to the RNC that occurred in January 2009. Reference was also made to the delegate’s summary of the claims for protection by the applicant which also refer to the applicant’s activities in the RPF.
I accept the submissions of the first respondent that the Tribunal made adverse findings in relation to the applicant’s credit and in relation to his claims in respect of his alleged activities and associations with the RPF. Specifically the first sentence at para.34 is a rejection of the applicant’s claims of ever being a person of adverse interest to the RPF. That adverse finding is, in my opinion, a rejection of the applicant’s credit in relation to those claims, and in those circumstances it was not necessary for the Tribunal to make an express adverse finding in relation to complementary protection relating to those claims that the Tribunal had rejected.
Further, in my opinion, the Tribunal’s reasons are not to be read with a keen eye for error, and para.144 in its reference to the RPF should not be read as confined in its rejection of other political activities in opposition to the RPF in a manner that excludes the claims that were identified by counsel for the applicant in para.8. In my opinion, on a fair reading of the Tribunal’s reasons, para.144 is an express rejection in the claim for complementary protection in relation to the applicant’s association and activities in the RPF. For these reasons ground 1 fails to make out any jurisdictional error.
In relation to ground 4, counsel for the applicant submitted that there was an underlying assumption upon which the Tribunal’s finding was based that there were no grounds for believing that there is a real risk the applicant will suffer significant harm because of his activities involving the RNC. Counsel for the applicant advanced that this was a case where the Tribunal should have explored whether the applicant would be suppressing his support for the RNC for a Convention reason. I reject that submission. It is apparent that the Tribunal found the applicant was not a genuine or committed RNC member. It is also a case that the Tribunal expressly found that the applicant had engaged in activities in Australia to try and strengthen his refugee claim.
It was a matter for the Tribunal to make findings in relation to the applicant’s credit. The adverse findings made by the Tribunal in relation to the applicant were open on material before the Tribunal. The finding by the Tribunal that the applicant was not a genuine or committed RNC member was a finding open to the Tribunal on the evidence of the applicant. This is not a case in which any issue of suppression of the applicant’s genuine interests and beliefs arose for deliberation by the Tribunal. Ground 4 fails to make out any jurisdictional error.
In relation to ground 6, counsel for the applicant was permitted belatedly to tender the transcript that had been annexed to an affidavit sworn on 6 October 2015 by Ms Pritchard who had endeavoured to transcribe the hearing. There are many obvious transcription deficiencies in that transcription. Those transcription difficulties do not however reflect any difficulty by the applicant understanding the Tribunal member or in the applicant’s ability to give evidence and present arguments.
The high point of the applicant’s case was advanced on the basis that the applicant’s first language was French and that a French interpreter might have been preferable. It is clear that this issue was raised by the Tribunal and explored with the applicant and the applicant’s adviser. It was the applicant who decided to proceed in English, and there is nothing in the transcript to suggest that the applicant did not fully understand the hearing that occurred before the Tribunal and had a proper opportunity to present evidence and give arguments. There was no identified material matter in the transcript in respect of which it was alleged the applicant had failed to understand a question or had been unable to give an appropriate argument.
No affidavit evidence was put on by the applicant in support of ground 6 and, having reviewed the transcript as a whole, I find the applicant had a genuine hearing and a proper opportunity to give evidence and present arguments and that there was no failure to comply with s.425 by the Tribunal. The Court has taken into account the principles as identified in SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [29] to [32]. Ground 6 fails to make out any jurisdictional error.
I note that counsel for the applicant also endeavoured to support the ground 6 by reference to the Tribunal’s adverse findings in respect of the credit of the applicant and the identification that, at times, the applicant was confused and uncertain in the answers that he gave to questions, and that the Tribunal would have expected clearer answers, and that the applicant was hesitant in giving responses and did not provide clear or direct answers but gave vague and general responses.
The Tribunal member went on in para.130 to identify that the Tribunal had allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, and the manner in which the responses can differ depending on the nature and manner in which the question is asked. The Tribunal also took into account the effect of the passage of time on the applicant’s ability to recount his experiences, and the Tribunal expressed sensitivity to the various cultural differences that can impact on the applicant’s responses to questioning. Those matters are not matters that give rise to any substance in relation to ground 6.
I add that counsel for the applicant also sought to rely upon the applicant’s activities in Australia in relation to the RNC. I note that those activities were the subject of finding by the Tribunal that the applicant was an unreliable witness and had fabricated evidence to support a claim that he was owed protection, and that the involvement in RNC-related conduct in Australia was pursued by the applicant for the purpose identified in s.91R(3). It was suggested those activities in Australia had not been the subject of express findings. I reject that submission. It is clear from the last three lines of para.146 in relation to complementary protection that participation in RNC-related activities was taken into account referable to those activities in Australia.
The application filed on 15 December 2015 fails to make out any jurisdictional error. The application filed on 15 December 2015 is dismissed.
(Following argument on costs)
I am satisfied that the quantum of the costs claimed in the present case, which is below the scale, is reasonable. I am satisfied that the applicant has added to the costs of the respondent by the failure to comply with the orders made by the Court. Those are circumstances which, in my opinion, make it appropriate to make an order for fixed costs sought by the first respondent in the sum of $6500. I take into account that the ordinary or usual order in this Court in relation to costs is to make a fixed costs order in accordance with the scale. It is not the ordinary or usual order in this Court to make an order that costs be taxed or agreed.
It is the rare exception in proceedings in this Court in which a costs orders is made costs as agreed or taxed. The ordinary orders of this Court take the cost scale into account. In this case, I take into account the fact that the fixed costs claimed are less than the scale amount that the Court would ordinarily have ordered as the usual order in an application for Constitutional relief under the Migration Act 1958. I do not regard the explanation by the applicant’s counsel in terms of change of solicitors or the role undertaken in that regard, worthy as it may be of acting pro bono, as giving rise to circumstances in which the applicant should not be ordered to pay the reasonable costs incurred by the respondent. In the circumstances of this case, I am satisfied that those costs should be fixed in the amount of $6500, being below the scale.
I note that the Court has contemplated whether or not an affidavit might be ordered identifying the costs in fact incurred by the solicitor for the respondent. The Court has been informed by the solicitor for the first respondent as to the amount of costs that have been incurred. There has been no challenge to that assertion from the bar table and, had there been, I would have permitted the applicant’s solicitor to give evidence in relation to those costs for the purpose of the Court being in a position to make a fixed costs order. Further not to make a fixed costs order in this case is likely to result in further unrecoverable costs and does not advance the interests of finality. For these reasons, the applicant is ordered to pay the first respondent’s costs fixed in the amount of $6500.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 14 January 2016
1
2