BOV15 v Minister for Immigration and Anor

[2017] FCCA 2724

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOV15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2724

Catchwords:
MIGRATION – JUDICAL REVIEW – Whether Tribunal engaged and considered applicant’s discrete submission – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

SZSSC & The Minister for Immigration (2014) 317 ALR 365
Minister for Immigration & Citizenshipv SZIAI (2009) 259 ALR 429
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: BOV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1777 of 2015

Judgment of: Judge McGuire

Hearing date: 21 July 2017

Date of Last Submission: 21 July 2017

Delivered at: Melbourne

Delivered on: 15 November 2017

REPRESENTATION

Counsel for the Applicant:  Mr A Aleksov

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondents: Mr Smythe

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. That the application for judicial review be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1777 of 2015

BOV15

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 Refugee Review Tribunal (as it then was) affirming a decision of the Minister’s delegate to refuse the applicant a grant of a Protection (class XA) Visa.

2. The amended application cites a single ground:

   1)The Tribunal failed to consider a submission of substance, being that it was improbable that there would be direct communication between the applicant and VT.

Background Facts

1. The applicant is an Israeli citizen.

2. The applicant stood trial in Australia charged with the attempted importing of a large quantity of cocaine.

3. The applicant was acquitted at trial with his defence including that he was a “mere patsy” for an acquaintance/friend namely YT.  By its very nature, the applicant’s defence implicated YT in the crimes.

4. YT had fled Australia, although his family continue to live in Australia.

5. The applicant claimed protection on the basis of a well–founded fear of being persecuted in Israel for reasons of his race, religion, nationality, political opinion or membership of a particular social group and that he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Israel.

6. The applicant gave and adduced evidence to the Tribunal of threats from YT and intermediaries (CB626–638).

7. The applicant argued that Israel would not provide adequate state protection.

The Tribunal Decision

1. The review before the Tribunal proceeded over three hearings between 24 October 2014 – 27 March 2015.

2. The Tribunal correctly noted the issue for determination at [7].

3. The applicant and his witnesses were generally found to be credible witnesses.

4. The applicant provided evidence, inter alia, in the form of written submissions of 27 February 2015, including at page 8 thereof and five separate paragraphs under the heading “indirect nature of the threats”.

5. The Tribunal dismissed the application concluding at [138 - 140]:

   138In light of the above considering all the information before me, I'm not satisfied (sic) will face a real chance of suffering serious harm capable of amounting to persecution under the Act either because of his membership of the particular social groups “persons who have provided evidence against known figures in the illegal drug trade” and “his informants” or for any other reason, considered both individually and cumulatively, at the hands of YT, Mr N, or Mr L or individuals or groups acting on their behalf or any other members of the criminal community in Israel should the applicant (sic) returned there in the reasonably foreseeable future .

   139I'm not satisfied the applicant has a well-founded fear of persecution for a Convention reason on his return to Israel.  As a result, it is unnecessary for me to consider whether effective state protection or state relocation will be available to the applicant within Israel.

   140Accordingly, I'm not satisfied the applicant has a well-founded fear of persecution and am not satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

6. At [142] the Tribunal dealt with the statutory complimentary protection criterion as follows:

   142In light of my finding set out above in relation to the applicant’s claims to have a well-founded fear of being persecuted for a Convention reason, I do not accept that there is a real risk of the applicant suffering any form of significant harm at the hands of YT, Mr N or Mr L or individuals or associates acting on their behalf.  I do not accept that the applicant will face any form of discrimination or harassment at their hands in Israel that could be said to amount to cruel or inhuman treatment or punishment or degrading treatment or punishment or any other form of significant harm as set out in the relevant definition in the Act.

The Applicant’s Case

1. The applicant emphasises that he was generally accepted by the Tribunal as a credible witness.

2. The applicant then argues that the Tribunal actively engaged with, considered and made findings in respect of the six direct threats made against the applicant by YT after his acquittal on the criminal charges. The argument continues, however, that the Tribunal neglected to engage intellectually with and consider the applicant’s submission that he received a number of “indirect” threats. The applicant argues that the latter is a separate, discrete claim as supported by separate submissions.

3. The applicant’s counsel’s submissions direct this court to the Tribunal’s reasons at [135] where the member states:

   He (YT) has also not taken any steps to directly communicate with the applicant or his family in the two years since the applicant was acquitted.

4. It is the applicant's case that “it was improbable that there would be any direct communication or direct threats in the circumstances” but that the threats to him came indirectly through intermediaries. The applicant says that the critical findings of the Tribunal were made, therefore, without any evaluation of the separate submission of the applicant in respect of indirect threats.

5. The applicant relies on the authority of SZSSC & the Minister for Immigration[1] that a failure by the Tribunal to consider and determine a submission of substance could amount to jurisdictional error where Griffiths J observed at [82]:

   The central issue is whether there were in fact relevant submissions of substance which were clearly articulated and were made by or on behalf at the appellant which were not evaluated by the Tribunal.

   [1] (2014) 317 ALR 365

6. Counsel in his oral submissions then referred the court to the decision of the High Court in Minister for Immigration and Citizenship v SZIAI[2] where their Honours extracted some principles to assist in determining whether or not a Tribunal has fallen into jurisdictional error by neglecting to considerer a clearly articulated submission including the following:

   e.notwithstanding that s430 does not in its terms impose any obligation on the Tribunal to set out or summarise submissions of substance which are clearly articulated and made to it, in considering whether the Tribunal has in fact failed to consider and determine such a submission, it is appropriate to have regard to the Tribunal statement of decision and reasons and, in particular, the manner in which the document describes and deals with submissions made to the Tribunal which it has received. In an appropriate case this might involve a consideration of any part of the Tribunal statement of reasons which summarises the submissions it has received, as well as the parts of the Tribunal’s reasons which purport to consider and determine the submissions it has received. Accordingly it may be appropriate to pay careful attention to the structure of the Tribunal’s reasons.

   [2] (2009) 259 ALR 429

Consideration

1. The Tribunal undoubtedly noted and understood the applicant's claim to include indirect threats of harm.  At [121] of its reasons the Tribunal sets out:

   The applicant fears harm at the hands of YT and his associates, associates of Mr N and Mr L, and members of the drug trafficking community in Israel because he gave evidence against YT at trial about the smuggling of cocaine into Australia.

   And at [92] the following is included in the summary of further written submissions:

   d.Although the threats have been received indirectly through third parties, they remain evidence of the real chance of harmed (sic) the applicant faces in Israel.  The method of passing on threats through third parties is consistent with the behaviour of criminals, particular (sic) those involved in drug-related matters.

   And at [88] the reasons of the Tribunal disclose:

   The applicant stated that YT and his associates have more power in Israel than they do here in Australia. I asked the applicant why, according to him, YT and his associates never threatened him directly. He stated that it may have been because they suspected he was (sic) informant and so only threatened him indirectly to ensure they would not be caught making threats to him.

2. The applicant’s counsel in his submissions emphasises the one sentence in [135] of the Tribunal’s reasons as set out above. That paragraph, however, is lengthy and it should be read in full and within context. Such selective extraction might offend the observation of the court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[3] that the Tribunal's decision should not be read “without keen eye attuned to the perception of error”.

   [3](1996) 185 CLR 259

3. A full and contextual reading of [135] elicits the following:

   i)However, I have also found that YT has not harmed or been responsible for harming…; (my emphasis)

   ii)Even taking into account that it would be easier for YT or his associates to make contact with the applicant in Israel rather than in Australia…; (my emphasis)

   iii)… I give significant weight to the lack of any attempt to directly contact the applicant by YT or his associates… (my emphasis);

   iv)… there would be some greater attempt to contact the applicant or take action against by or on behalf of YT than there has been. (my emphasis)

4. The above references clearly, in my view, demonstrate an understanding of and engagement with the applicant’s discrete submission of “indirect threats of harm” with references to the ultimate “responsibility” of YT and the use of intermediaries. This is an intelligible and contextual reference to the applicant’s submission.

5. It follows that the Tribunal has discharged its obligation to consider and evaluate the applicant’s claim and has not fallen into jurisdictional error. The application for review must therefore fail and be dismissed with a consequent order for costs.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate: 

Date:  15 November 2017