BNC16 v Minister for Immigration

[2017] FCCA 1682

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNC16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1682

Catchwords:
MIGRATION – Protection visa – whether Tribunal failed to consider all integers of claims – country information – irrelevant considerations – illogical findings – procedural unfairness – apprehended bias – misinterpretation and non-interpretation – no error demonstrated – application dismissed.

Legislation:

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

Cases cited:

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303

First Applicant: BNC16

Second Applicant: BND16

Third Applicant: BNE16

Fourth Applicant: BNF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 190 of 2016

Judgment of: Judge Heffernan

Hearing dates: 6 & 21 April 2017

Date of Last Submission: 12 May 2017

Delivered at: Adelaide

Delivered on: 9 August 2017

REPRESENTATION

The Applicants: First Applicant in person with an interpreter

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicants do forthwith pay the costs of the first respondent in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 190 of 2016

BNC16

First Applicant

BND16

Second Applicant

BNE16

Third Applicant

BNF16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 27 May 2016.  That decision affirmed an earlier decision of a delegate of the first respondent not to grant the first applicant a Protection (Class XA) visa.  The second to fourth applicants, inclusive, are the wife and two daughters of the first applicant.  The outcome of their applications is dependent on that of the first applicant.

2. The initial application filed by the first applicant contained two grounds of application as follows:

   “1.The Tribunal failed to consider all of the elements of the applicant’s claim.

   2.The Tribunal failed to consider all of the country information provided in support of the applicant’s claim.”

3. On 29 July 2016, the Registrar made orders which, inter alia, gave the applicants leave to file and serve any amended application by 23 September 2016.  No amended application was filed.  This matter was first listed before me on 7 February 2017.  The first applicant appeared unrepresented.  He requested an adjournment.  The basis for the adjournment was that he was not ready physically or mentally to proceed with the hearing.  He advised the Court that he had been seeing a counsellor for his mental health and he provided a letter from his psychologist to the effect that his mental state was affected by stress and anxiety which impeded his ability to function properly with respect to “legal matters”.  I acceded to his request for an adjournment and made an order that he file and serve an outline of submissions 10 days prior to the next hearing, which was set for 6 April 2017. 

4. Submissions commenced on that day and the first applicant was again self-represented and had the assistance of an interpreter in Arabic and English.  In the course of his submissions on that occasion, the first applicant raised for the first time a procedural fairness ground suggesting that he had not properly understood proceedings and that he had great concerns about the manner in which they had been conducted.  He was not in possession of a recording, or the transcript of the Tribunal hearing.  He further claimed that he told the Tribunal that he had mentioned his opposition to the Wadi Arab Treaty, but that this had not been considered in the Tribunal’s reasons.  Neither of these issues was able to be properly advanced without recourse to the Tribunal recording.  The first respondent undertook to provide the first applicant with a disc of the hearing for him to consider.  I granted the first applicant’s application to further adjourn proceedings and made orders that he provide the first respondent with particulars of both the procedural unfairness and errors which he said the recording of the Tribunal demonstrated.

5. On 24 April 2017, the applicant filed a written outline of submissions that in effect set out further grounds of application. 

6. The matter finally proceeded before me on 12 May 2017 on which occasion I heard full submissions from the first applicant, who was once again self-represented, and based on his outline of submissions gave him leave to amend his grounds of application in the following terms:

   “a.The Tribunal took into account irrelevant considerations, namely:

   iThe Tribunal found that the fact the first applicant and his wife obtained a police clearance, it meant they were not of adverse interest to the Jordanian authorities.

   ii.The Tribunal found that the first applicant’s travel to and from Jordan on 64 occasions over the years was indicated that he was not of interest to the authorities.

   b.The Tribunal failed to take into account country information that states that the Jordanian authorities revoked many Jordanian citizenships, including in 2014.

   c.The Tribunal made an illogical assumption that the first applicant was a businessman and travelled frequently and notwithstanding, it was satisfied he was not a risk of being persecuted in the future.

   d.The Tribunal acted in a way that was procedurally unfair to the first applicant because the first applicant had trouble understanding the questions put to him, advised the Tribunal of this, but the Tribunal continued to put the questions in the same way without further clarifications.

   e.The Tribunal states that the Jordanian intelligence were very good and well respected which created a perception of bias.

   f.The interpreter was not correctly interpreting what was said and the applicants’ representative advised the Tribunal of this.”

Background

1. Much of the background and proceedings before the Tribunal were not the subject of any dispute in this matter and were conveniently set out in the first respondent’s outline of submissions.  I have summarised those matters below.

2. The first applicant is approximately 43 years old and a citizen of Jordan.  He is originally of Palestinian descent and is a Muslim.

3. On 23 January 2013, the applicant entered Australia on a Tourist (Subclass 676) Visa.  That visa was due to expire on 23 April 2013.  On 12 April 2013, the first applicant applied for the visa the subject of these proceedings.  That was refused on 19 November 2014. 

4. The first applicant made a timely application to the Tribunal for a review of the delegate’s decision.  The applicants were invited to attend before the Tribunal, give evidence and present argument, and they did so on 15 April 2016.  On that occasion they had the assistance of a migration agent and an Arabic interpreter.  Prior to the hearing, the migration agent for the applicants sent through written submissions.[1]

   [1]     Court Book (‘CB’) pp 217-232.

5. The Tribunal affirmed the decision of the delegate on 27 May 2016 and these proceedings were commenced within time on 21 June 2016.

The Tribunal hearing and findings

1. The Tribunal noted that the summary of the first applicant’s protection claim set out in the Decision Record had been put to the first applicant who confirmed its accuracy at the time of the hearing. 

2. The Tribunal identified that the first applicant claimed to fear harm if he were to return to Jordan for a number of reasons:

   a)He would face discrimination in Jordan as a Jordanian citizen of Palestinian descent;

   b)Because he had supported Jabha Al Shababia, better known as the Popular Front for the Liberation of Palestine (‘PFLP’).  Between the ages of 16 and 20, his involvement included attending demonstrations and rallies and it caused him to be both harassed and detained by Jordanian intelligence (‘the JID’).  His involvement with the PFLP ceased when he travelled to Germany in 1993.  He lived in Germany for a year and unsuccessfully applied for asylum.  He claimed to have been questioned by the JID on his return to Jordan;

   c)After starting a business in 1997, which required frequent international travel, he was questioned on his return to Jordan on each occasion by the JID.  As a result, he fears he will suffer harm from the Jordanian authorities by way of incarceration, revocation of his Jordanian passport, his imputed political views based on his history of support for the PFLP when he was a young man, and his status as a failed asylum seeker;

   d)The applicant claimed that his return from a business trip from the United States of America in 2012 resulted in him being interrogated, mistreated, questioned about the purpose of his travel, and accused of involvement with the PFLP.  He claimed that the JID had on that occasion threatened to strip him of his citizenship unless he became an informer.  He claimed to have agreed to consider this proposal.  It was this event which convinced him that it was necessary for him to flee Jordan and seek asylum in Australia; and

   e)The applicant claimed that the risk of persecution was ongoing and that Jordanian officials had since his departure threatened his brother, telling him that they would get him regardless of where he fled to.

3. The Tribunal made a number of findings adverse to the credibility of the first applicant.  It did not accept that he had a genuine fear of harm.  It concluded that he had fabricated his claim and set out its reasons for reaching that conclusion.[2]  During the course of hearing, the Tribunal put the first applicant on notice of some of its concerns about his evidence.  Those concerns included:

   a)Over 70% of the Jordanian population is of Palestinian descent and the first applicant’s association with the PFLP occurred almost a quarter of a century ago raising the question of why he would now be a person of interest to the JID;

   b)His own conduct appeared to be inconsistent with his claim to be at risk of persecution because in spite of the fact that he had freedom of movement outside Jordan, he had not applied for asylum in the United States, and after the incident in May 2012, whilst he had obtained an Australian visa, he did not immediately travel to Australia and seek asylum, and in fact his first Australian visa had expired;[3]

   c)There was a further inconsistency because whilst he was granted an entry visa with his family on 4 November 2012, he left it until 23 January 2013 to depart for this country and upon his arrival here, did not apply for a protection visa until 8 days prior to the expiry of his tourist visa;[4]

   d)The inconsistency between the claims raised by the first applicant that he was at risk of having his citizenship revoked and the country information, which suggested that it was only Jordanian Palestinians who had lost their Israeli issued residency permits for the West Bank and ‘yellow card holders’ (which the first applicant is not), who are at risk of these actions, and that in any event since 2012 the Jordanian Prime Minister was required to approve any revocation;[5]

   e)The fact that the first applicant received a police clearance prior to his travel to Australia, and that his wife had been given a certificate verifying that she had no criminal convictions, both of which matters suggested that the first applicant was not of adverse interest to the JID;[6] and

   f)The inherent unlikelihood that it would be necessary for government officials to visit his former place of business and threaten his brother in order to ascertain his whereabouts because such information would have been known to them based on departure records.[7]

   [2] CB p 277 at [34].

   [3]     CB p 272 at [14]-[15].

   [4]     CB p 273 at [16]-[17].

   [5] CB p 273 at [18].

   [6] CB p 273 at [19].

   [7] CB pp 273-274 at [20].

4. During the course of the hearing, the Tribunal also raised relevant country information with the first applicant and invited comment from him and his registered migration agent.[8]

   [8]     CB p 274.

5. The Tribunal did not accept that there was a real chance, or real risk of harm to the first applicant on the basis of his Palestinian descent.[9]  It did not accept that there was a real chance, or risk, that the first applicant’s citizenship would be revoked.[10]  It did not accept that he was of any interest to the JID.[11]  It did not accept that the first applicant would be at risk of harm from any other intelligence or security agents in Jordan if he were to return there.[12]

   [9] CB p 276 at [30].

   [10] CB p 276 at [31].

   [11] CB p 276 at [32].

   [12] CB p 277 at [33].

6. As I have already noted, the Tribunal concluded that the first applicant had fabricated his claims and made detailed observations as to the manner in which, on his own evidence, his behaviour had been inconsistent with a genuine fear of harm.[13]

   [13] CB p 277 at [34].

7. Of particular significance to the Tribunal was the fact that the first applicant had voluntarily returned to Jordan on 64 occasions over many years until quite recently.  Notwithstanding the significant adverse attention to which he says he came on his return from the United States in May 2012, he then proceeded to travel to Egypt in July 2012 and yet returned to Jordan voluntarily.  It also regarded it as highly significant that he delayed seeking protection from this country after he arrived here.  The Tribunal considered the explanation given by the first applicant in relation to these matters, but rejected those explanations.

8. The Tribunal noted that it had considered the first applicant’s claims individually and cumulatively and concluded that he did not meet the criteria in ss.36(2)(a) or 36(2)(aa) and for that reason it affirmed the decision under review.

Proceedings in this Court

1. During the course of the hearing before me, the recording of the Tribunal hearing was produced and played in its entirety. 

2. The recording demonstrated that the Tribunal member was careful to explain her role in proceedings and the basis on which a protection visa could be granted.  The first applicant was advised that the hearing was also an opportunity for him to inform the Tribunal of matters even if questions were not asked of him. 

3. The issue of the interpreting used at the Tribunal was specifically broached at the outset by the Tribunal member.  The first applicant indicated that he had no difficulty in understanding the interpreter and no difficulty with the particular interpreter.  After summarising the first applicant’s claim, the Tribunal member invited him to indicate if the summary was accurate and given an opportunity to add anything.  The applicant indicated that there was nothing wrong with the summary of claims made by the Tribunal.  When asked if anything else had happened to him that he would like to add for consideration, he indicated that there were many things, but nothing specific. 

4. At one point in the hearing the Tribunal member observed that the Jordanian Intelligence Service was renowned as being very good and for that reason they would know certain matters that the applicant had raised in evidence. 

5. At a further point in proceedings, the applicant’s representative interrupted the hearing and complained that a matter of interpretation was not correct.  He was instructed by the Tribunal member to refrain from interjecting and advised that if he believed there was a problem with the interpretation, it could be pointed out at the end of the hearing.  However, the Tribunal member pointed out to the first applicant at that point that he could complain about problems with the interpretation at any time.  When the first applicant pointed out that something had been interpreted which was inaccurate, he was given an opportunity to explain himself again and he did so. 

6. On one occasion when the Tribunal asked the first applicant how worsening security conditions affected him personally, he indicated that he did not understand the question and it was explained again to him on two further occasions.  He then appeared to answer responsively. 

7. The Tribunal member clearly indicated at one point to the first applicant that she had concerns about whether he was telling the truth about various matters and put those matters specifically to him.  He was given an opportunity to respond to the concerns. 

8. Throughout the questioning, the recording demonstrates that there was a calm, measured and clear approach taken by the Tribunal member.  The recording demonstrates repeated explanation of the concerns of the Tribunal member and responses from the first applicant that appeared to indicate an understanding of the questions being asked.  On occasions, the answers from the first applicant involved a significant amount of detail. 

9. Towards the end of the hearing, the Tribunal member afforded the first applicant an opportunity to speak privately with his advisor and then, when the hearing resumed, he was given a further opportunity to say anything else that he thought might assist his case.  The first applicant’s representative was invited to make oral submissions at the end of the hearing.

Submissions of the first applicant

1. The first applicant relied on his written submissions which I have indicated were incorporated into the amended grounds.  In terms of oral submissions, he told the Court that the reference to the Jordanian immigration authorities had made him very confused and he was left with the impression that the Tribunal member had already made her decision before the hearing commenced.

Submissions of the first respondent

1. As to ground one of the initial application, the first respondent submitted that it was quite clear that the Tribunal considered all of the first applicant’s claims in detail and that it gave an adequate opportunity to the first applicant to both confirm that it had understood his claims correctly and to add any further matters he wished to.

2. As to ground two of the initial application, the first respondent submitted that this ground must inevitably fail because it was apparent on the face of the reasons that the Tribunal had given express consideration to the first applicant’s written submission and the oral submissions made by the migration agent at the end of the hearing.  In so far as the written submission of the migration agent included matters that might be considered country information, the first respondent submits that it is well established that the Tribunal need not set out in fine detail each and every piece of country information considered and give a line by line refutation of why particular evidence was not given significant weight.[14]  The first respondent submitted that it was within the Tribunal’s fact finding function to determine what weight to give particular evidence.[15]

   [14]    Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [65].

   [15]    NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].

3. With respect to additional grounds (a), (b) and (c), the first respondent submitted that these amounted in effect to a complaint about the fact finding function of the Tribunal and were little more than attempts to engage in a merits review.  As to the additional ground (d), complaining of the quality of the translation, it was submitted that a consideration of the recording showed there was simply no substance in that ground as a matter of fact.  As to the additional ground (e), the first respondent submitted that there could be no basis upon which to conclude that simply because the Tribunal member described the Jordanian intelligence service as being “very good”, that she was in some way pre-judging the matter, or that her decision was tainted by apprehended bias.

1. As to the additional ground (f), the first respondent submitted that it was apparent from the Tribunal record that the interpreter being used was a qualified NAATI level 3 interpreter.  The applicant had not demonstrated through expert evidence that there was a problem with the quality of the interpretation and a consideration of the recording did not suggest that there was any significant problem, such as to create a procedural unfairness to the applicant.

Consideration

1. As a preliminary matter, it is worth observing that a consideration of the recording of the Tribunal hearing in its entirety demonstrates that the Tribunal member conducted the hearing in a scrupulously fair manner, was at pains to explain the proceedings to the first applicant, and gave him an opportunity to present his case as fully as he was able to do.

2. There is no substance to either grounds one or two of the first applicant’s original application.  The Decision Record and the recording of the hearing show that the Tribunal took into account all elements of the first applicant’s claims and that it was assiduous in confirming with him that it had identified the claim correctly.  Similarly, there is no substance to the complaint that the Tribunal failed to properly consider all of the country information provided by the migration agent.  That information was provided with written submissions submitted by the migration agent.[16]  The Tribunal specifically referred to having received those materials.[17]  The fact that the Tribunal did not reproduce or summarise the country information provided does not establish a jurisdictional error on its part.  As the first respondent correctly submitted, it is well established that it is a matter for the Tribunal as to what country information it relies on.  The accuracy of and weight to be given to country information is a feature of the fact finding function of the Tribunal.[18]  There is nothing to suggest that the Tribunal failed to consider the country information provided on behalf of the first applicant.  What is clear from the Decision Record, is that the Tribunal accepted and relied on other country information.  It was entitled to do so.  I dismiss grounds one and two.

   [16]    CB pp 217-232.

   [17] CB p 270 at [5], p 274 at [23].

   [18]    NAHI op cit at [10]-[11].

Additional grounds

1. I turn now to a consideration of the additional grounds raised by the applicants.  The grounds were put to the Court on the basis that the Tribunal took into account irrelevant considerations.  Ground (a) is as follows:

   “i.The Tribunal found that the fact the first applicant and his wife obtained a police clearance, it meant they were not of adverse interest to the Jordanian authorities.

   ii.The Tribunal found that the first applicant’s travel to and from Jordan on 64 occasions over the years was indicated that he was not of interest to the authorities.”

2. I reject the submission that the finding by the Tribunal with respect to the significance of the police clearances was based on an irrelevant consideration.  The complaint made in this ground is a clear attack on the merits of the decision itself.  It is well established that the boundaries of jurisdictional error do not encompass errors of fact as to the merits of the case put to the Tribunal.[19]  I dismiss this ground.

   [19]    NAHI op cit at [10].

3. Additional ground (b) is as follows:

   “b.The Tribunal failed to take into account country information that states that the Jordanian authorities revoked many Jordanian citizenships, including in 2014.”

4. This ground is a more specific restatement of ground two in the initial application.  As I have indicated, I reject the submission that the Tribunal failed to take into account the country information put to it by the first applicant’s migration agent.  The question of what, if any, country information the Tribunal relied on was ultimately a matter for the Tribunal itself.  The weight to be given to country information is an aspect of the fact finding function of the Tribunal.[20]

   [20]    NAHI ibid at [11].

5. I dismiss this ground.

6. Additional ground (c) is as follows:

   “c.The Tribunal made an illogical assumption that the first applicant was a businessman and travelled frequently and notwithstanding, it was satisfied he was not a risk of being persecuted in the future. “

7. This ground is also a complaint about a factual finding of the Tribunal and an attempt to put a merits based argument to this Court.  The Court does not have power to reconsider the merits of the first applicant’s claims.  In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, the Court observed that it was not the role of a Court on judicial review to:

   “… enter upon a consideration of the factual merits of the individual decision.  The grounds of judicial review ought not be used as a basis for a complete re-evaluation of the findings of fact, a reconsideration of the merits of the case or a re-litigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision making power.”[21]

   [21]    Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [114].

8. There was nothing illogical or irrational in the finding made by the Tribunal about the relevance of the first applicant’s very frequent international travel and return to Jordan to the question of whether or not he was at risk of being persecuted in the future.

9. Additional ground (d) is as follows:

   “d.The Tribunal acted in a way that was procedurally unfair to the first applicant because the first applicant had trouble understanding the questions put to him, advised the Tribunal of this, but the Tribunal continued to put the questions in the same way without further clarifications.”

   And

10. Additional ground (f) is as follows:

    “f.The interpreter was not correctly interpreting what was said and the applicants’ representative advised the Tribunal of this.”

11. These grounds are conveniently dealt with together.  I have already summarised and made findings about the manner in which the Tribunal hearing was conducted as demonstrated by listening to the recording of the hearing itself.  There is no substance to the complaint that the Tribunal somehow denied the first applicant procedural fairness in the way alleged.  As I have said already, it appears the Tribunal was scrupulous in explaining and clarifying the matters that it put to the first applicant.  Further, to the extent that the first applicant complained that there was a deficiency in the interpretation, such as a misinterpretation or non-interpretation of either the evidence given or questions asked, this is not born out when listening to the audio recording.  There is simply no evidence in this matter that establishes there was a deficiency in the quality of the interpreting.  The onus was on the first applicant to place material before this Court to demonstrate any material errors in the quality of the interpretation.[22]  Ultimately, the question is whether the first applicant had a fair hearing.[23]  It has not been demonstrated that the first applicant did not have a fair hearing because of any deficiency in the quality of the interpreting.  I dismiss these grounds.

    [22]    Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18].

    [23]    SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [67]-[69].

12. Additional ground (e) is as follows:

    “e.The Tribunal states that the Jordanian intelligence were very good and well respected which created a perception of bias.”

13. In my view, this ground is based on a misunderstanding of the comment made by the Tribunal member.  All the Tribunal member was doing was to point out to the first applicant that on the information before her, the Jordanian intelligence agencies were very good at doing their job.  It was not an expression of support for, or an endorsement of, any practices or objectives of the JID or any other Jordanian intelligence agencies.  When the comments of the Tribunal member are considered in conjunction with the Decision Record, there is nothing to suggest that a fair minded observer might reasonably apprehend that the decision maker might not bring an impartial mind to the questions to be decided.  As has been observed by Katzmann J:

    “If the reasoning process would stand scrutiny as being neither illogical nor irrational, there is no foundation for a conclusion that the decision is tainted by actual or apprehended bias.[24]

    [24]    Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303 at [37].

14. In my view, those comments are completely apposite to this case.  I dismiss this ground.

15. The findings of the Tribunal were clearly open to it and no error has been demonstrated.  Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  9 August 2017