BRT19 v Minister for Home Affairs - [2019] FCCA 2942

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRT19 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2942

Catchwords:

MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant:

BRT19

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 148 of 2019

Judgment of:

Judge Vasta

Hearing date:

26 July 2019

Date of Last Submission:

26 July 2019

Delivered at:

Perth

Delivered on:

26 July 2019

REPRESENTATION

Applicant appearing in person

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

That the Application filed 23 April 2019 is dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 148 of 2019

BRT 19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

On 19 March 2019, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate of the Minister not to grant the Applicant, BRT19, a Protection Visa. On 23 April 2019, the Applicant filed an originating application asking this Court to review the decision.
The background is this. The Applicant is a citizen of Ghana. He was born on 13 September 1986. His parents live in Ghana, as do his three brothers. His claims were summarised as follows:
a)in 2005, he overheard at least two people plan an armed robbery;
b)having heard the robbery being planned, he informed the police,
c)because of the information he gave police, a notorious criminal, a person known as Tetteh, was arrested.
This fact was reported in national media in Ghana. According to the reports, it was believed that most of Tetteh’s accomplices escaped and were still at large. The Applicant said he was told by police not to tell anyone that he had provided information to them.
Notwithstanding that the Applicant says he was told by police not to tell people, he said that he actually did tell people. He said that he believes that the people that he told passed the information on and that Tetteh’s accomplices discovered the Applicant’s involvement. He said that if he returns to Ghana, the criminal accomplices will attack and murder him.
When the Applicant attended an interview with the Delegate on 20 December 2018, the Applicant provided further information. He said that he was studying at the Islamic University in Accra, the capital of Ghana, in 2008, when five or six men came looking for him. He said that he did not return there because he was too scared. He said that social media makes it easy for people to find him if they were looking to harm him.
He said that in the nine-year period between 2005 and 2014 (when he actually left Ghana), the reason he was not killed or seriously harmed was that the information about him being a police informant had not spread very far. The Applicant claimed that the information spread faster after he came to Australia. He said that he hid the whole time that he was in Ghana. He said that he was vigilant when traveling between home and university, and he used to go straight home and could not move about freely.
That Applicant said to the Delegate that he did not think many people knew he was an informant when he was there, but more people have come to know now. He said that he withdrew from his studies at the Islamic University in 2008.
He said that he came to Australia to study, and he was hoping to study information technology at a master’s level. He said to the Delegate he did not think he could get “around the clock” protection from the police in Ghana, and he could not locate or relocate to another area within Ghana as the university he attended when he was there between 2006 and 2008 was in the capital city. He said that criminal gang members looked for him there.
He said that Ghana is a small country, and if he went back people would know that he returned. He said that Facebook is everywhere, and even though he does not have an account himself, others do, and the news of his whereabouts will spread.
He said that since 2014, he has been in a relationship with an Australian woman, and they are engaged, and they have a son together who, it would seem, was born in 2015. He said that when his visa ceased in 2014, he went to a migration agent in Sydney where he was living at the time. He wanted to get a bridging visa, but that did not happen.
I should say that the Applicant came here on a student visa when he arrived here on 6 February 2014, and the student visa was valid until 6 July 2014. He did apply for a further student visa on 4 June 2014, but his application was found to be invalid. Therefore, from 7 July 2014, he was unlawfully in Australia.
The Applicant said that the migration agent that he spoke to in Sydney said that his student visa had a no further stay condition attached to it. The Applicant said that he hoped to apply for a partner visa, but it was too expensive. The Applicant said that he thought his student visa was for four years. The Applicant was an unlawful citizen from 7 July 2014. The Applicant was located by police and detained in immigration detention from 7 November 2018. He applied for the Protection Visa on 9 December 2018.
The AAT looked through all of these claims and looked at the history of the matter. The Applicant had wanted the hearing adjourned. On 4 February 2019, he sent an email to the AAT which reads as follows, and I am reading from Court Book 113:
Hi. I would like the date for the court hearing extended due to the need for me to gather more evidence especially from the Ghana police to proof that I truly informed them. I believe it’s important since my protection visa was refused because Bruce who assessed my protection claims does not want to believe that I was truly a police informant in 2005.
Administratively, the application for an adjournment was not granted, but the Applicant attempted again to ask for an adjournment or a postponement. The Tribunal declined that request because it said to the Applicant that it was open for him to give them further material later, but the AAT looked at the emails that the Applicant had sent to the Ghana police in January 2019. They were sent to generic email addresses rather than to any particular person, and the AAT was of the view that it may be that the Applicant never gets a response from those emails. Those emails were about the Applicant’s claim that he did give police information that led to the arrest of Mr Tetteh.
The Tribunal said that it found, as a matter of fact, that the Applicant was the police informant who did give police information that led to the arrest. The fact that it was a tip off that led to the arrest was a reported fact in the media clippings that the AAT had a look at. Therefore, it proceeded on the footing that what the Applicant had said about giving the police information because of what he overheard in 2005 was, in fact, true. It said, therefore, there was no need to adjourn the proceedings.
The Tribunal then said even though they have accepted that the Applicant did provide information to police, it did not necessarily follow that the Applicant would face harm if he was to return to Ghana now or in the foreseeable future. What the Tribunal then did was go through exactly what the Applicant had said had occurred between 2005 and 2014. This included where he went to university, when he went to university, how it was that he was living during that time, and his information as to how he moved around the country.
The Tribunal gave quite a deal of latitude to the Applicant because the Applicant did seem confused about dates, but had given documentation to corroborate what it was that he was saying. The Tribunal made those allowances, and for quite a deal of information that was inconsistent between what he had said in his application, what he had said in his interview with the Delegate, and what he was now saying with the Tribunal, by giving the Applicant the benefit of the doubt as to the reason for those inconsistencies.
However, having done that, there were aspects of the evidence of the Applicant that simply could not be explained away because of confusion. The Tribunal looked at many of the areas as to his claim that people were looking for him and what it was that he was doing to stay away from them. The Tribunal also looked at his history of attaining the student visa and coming to Australia, and his interactions with the migration agent in Sydney.
At paragraph 79, the Tribunal said this:
The Tribunal observed a number of inconsistencies and issues of concern in the applicant’s evidence. Considered cumulatively, they point to the applicant fabricating evidence to strengthen his application for a protection visa.
·The Applicant said at the hearing that between 2011 and leaving Ghana in 2014 he was living at home. He later said that he went to live with his grandmother for six months, and that he was moving around all the time. The Tribunal is of the view that if the applicant’s fear for his safety caused him to move around and live in different places in the last two or three years he was in Ghana, he would have stated that in his protection visa claim and/or at the delegate’s interview. The Tribunal finds this claim that he moved around to avoid harm was fabricated.
·The applicant told the Tribunal that men were looking for him in 2012 but he did not tell the delegate this. He made no mention in his written claim of people looking for him in 2012 after he completed the course at the second university. The Tribunal found that this claim was fabricated.
·The applicant said at hearing that wherever he moved to after he finished the course at Datalink University, he heard people were still looking for him. This was the first time this particular claim was made in relation to this period, and the Tribunal finds this was fabricated to strengthen the case.
·When asked at hearing if anything actually happened after 2012, the applicant said threats to kill him or beat him up were made to him via his friends. Although he had previously claimed that men were looking for him, he had not at that point claimed specific threats against him were made, or that threats to him were relayed through friends. The Tribunal finds that the claim that these specific threats were made and relayed to him via friends was fabricated. It is not credible that if this occurred, that the applicant would have failed to mention this in his written application or at the delegate’s interview.
·When he was first asked at hearing why he left Ghana, the applicant said it was to continue his education. He made no mention of concerns for his personal safety at that time. Later in the hearing, he said that he left Ghana because he was in fear of his life. It is not credible that if he had left Ghana because he was in fear of his life, that he would not have said this when first asked why he left.
·The applicant who sought the advice of a migration agent in 2014, did not lodge an application for a protection visa at that time.
At paragraph 80, the Tribunal also observed that, in his written application for a Protection Visa, the Applicant wrote that he withdrew from studies because he was threatened. He did not claim at the Delegate’s interview or the Tribunal’s hearing that he withdrew from his studies for this reason, but because he heard people were looking for him.
The Tribunal said that it is possible, in his written explanation, he was intending to convey that he felt threatened, and the Tribunal extended the benefit of the doubt on this point and concluded that it was not an attempt to mislead.
I mention this point directly because it is indicative of the way in which the Tribunal has approached its task, that is, it has not blindly looked at a matter and said the Applicant was trying to mislead, or the Applicant was not telling the truth. The Tribunal was very careful to look at all matters and was in some ways very generous in extending the benefit of the doubt to many of the things that the Applicant had said. It is simply those matters that I have already mentioned were ones that simply, in the Tribunal’s view, could not have been explained away in the same manner.
At paragraph 85, 86 and 87 the Tribunal said this:
85. The Tribunal has found the applicant, when he was a schoolboy, did inform on Tetteh and his gang to the police. It accepts that he did tell a group of his peers in 2008 or 2010 or some other date about what he had done because it is plausible he might do that to impress them. The Tribunal accepts that the following week some men were driving around asking for him. The Tribunal found that would have been in either 2008 or 2010.
86. The applicant then attended another university for about a year. He said nothing untoward happened in that period. The Tribunal is of the view that if there were people looking for him who were determined to find him and harm him, they would have found him during that year or within the next two or more years before he left Ghana.
87. The applicant made claims that the Tribunal has rejected of specific threats made against him in 2012. He claimed he kept moving around to avoid harm, also a claim that the Tribunal has rejected. The Tribunal finds the applicant does not have a well-founded fear of persecution. For reasons already set out it does not accept there is a real chance he would suffer serious harm as a necessary and foreseeable consequence of him being removed from Australia to Ghana.
For those reasons, the Tribunal was not satisfied that the Applicant fitted the criteria for a refugee, nor that he fitted the criteria for complementary protection.
The grounds of the application were very generic. I will read them into the record and I will read all of them, even though it is obvious that the first two are not grounds of the application:
1. I am the applicant in this proceeding before the Court.
2. The second respondent’s decision made on 19^th March 2019 quashed.
3. The second respondent’s decision was unreasonable.
4. The second respondent did not properly apply s36 and s5J of the Migration Act 1958 (Cth).
5. The second respondent took into account irrelevant considerations.
6. The second respondent failed to take relevant considerations into account.
7. There was insufficient evidence or no evidence to support various findings made by the second respondent.
8. The second respondent failed to properly exercise their discretion under s36 and s5J of the Migration Act 1958 (Cth).
9. The second respondent’s decision involved an error of law.
10. The second respondent in making it’s decision did not comply with the rules and natural justice and/or the applicant was denied procedural fairness.
The grounds are extremely generic, and they have no particularity about them whatsoever, and, by themselves, could never amount to illustrating a jurisdictional error.
The Applicant has filed two affidavits, one filed on 12 July 2019 and another filed on 23 July 2019. The affidavit on 12 July 2019 gives, in effect, the Applicant’s version of all of the ills that he says occurred to him through the decision of the AAT.
The second affidavit filed 23 July 2019 has Google Map illustrations of the areas in Ghana of which he was speaking about. Notwithstanding that these affidavits were filed outside of the timeframe given, I have accepted them and I have read them fully.
I asked the Applicant about the grounds of his application; the ones I have read into the record. The Applicant, quite honestly, said that someone else wrote the application because he did not know what to do and he really has no true idea of what those grounds are all about. I should say, as an aside, that this does not surprise me, because the grounds that I have read into the record are the grounds that I have, on this week alone, seen in two other applications that originated from the Yongah Hill Detention Centre.
In effect, the Applicant abandoned those grounds and asked the Court to consider what it was that he put in his written affidavit. In trying to distil what is written in that affidavit, I have found two matters that would seem to be grounds. They are, firstly, the Tribunal fell into error by not granting an adjournment to the Applicant, and the second ground is that the conclusions made by the AAT were not open on the evidence.
With regard to the first ground, I have already spoken of what had transpired by the Applicant sending the email to the Tribunal asking for a postponement and the Tribunal not adjourning the matter because it ended up accepting the premise upon which the Applicant wished to have the adjournment.
However, in the written affidavit filed 12 July 2019, the Applicant now claims that he wanted the adjournment also to get enough time to get legal assistance and representation, and that, furthermore, he was not in the right state of mind for such an interview, but he was in deep stress, he was depressed, and he was confused at that time because he had been arrested and ended up in detention.
He said, at that time, he was charged with indecently dealing with a child under the age of 16, but that he was actually innocent of that charge. He said that he believes that when the Tribunal realised that he was confused, as they have found and as I have illustrated in my recitation of the Tribunal decision, that they should have adjourned the matter then to ensure that the Applicant was in the right state of mind.
The Applicant points to the email that says that he wanted the adjournment for him to “gather more evidence, especially from the Ghana police…” The Applicant puts some emphasis on the word “especially”, because he is saying that he needed to gather more evidence, especially from the Ghana police, but that was not the only evidence that he wished to gain.
He now says that he wanted to gain some evidence as to his mental state. That is not apparent at all in the email, and one would think that he would have mentioned that at the time of writing the email, and he would have mentioned it to the Tribunal when he was there.
At the Tribunal, the only reason that was given, verbally, by the Applicant was that he wanted this information from the police in Ghana. The Tribunal did not accede to his request because they accepted as fact what it was that he was seeking to have the Ghana police produce. There was no mention made there that the Applicant was depressed or did not want to participate because he was not in the right frame of mind. The AAT can only act upon the material that is before it.
There is still absolutely no evidence before me, other than what the Applicant has said, that he was not in the right frame of mind. This matter has certainly been in this Court since 23 April 2019, but it was not until the affidavit was actually filed, on 12 July 2019, that there was any suggestion that the Applicant was not in the right frame of mind.
I cannot see that the AAT has acted improperly, or that the application for an adjournment on the evidence that was before it, allows me to come to a conclusion that the AAT committed a jurisdictional error. Therefore, as far as the first ground is concerned, I would find that it has no merit.

As far as the second matter of the conclusions not being open on the evidence, the Applicant points to paragraph 77 of the Tribunal’s reasons. In that paragraph, the Tribunal says this:
The delegate’s decision referred to an allegation made against the applicant of sexual abuse of a minor. In a submission to the Tribunal dated 28 January 2019, the applicant wrote that he was accused of indecently dealing with a minor which was not true; the allegation was fabricated and there is an ongoing case in court in which he will prove his innocence.
Nothing more was said of the matter, and it is mentioned, it would seem, as a matter of background to explain why the Applicant was arrested and why he is in detention. The Applicant takes some umbrage that the allegation is described in paragraph 77 as “sexual abuse of a minor”. He said it was indecent dealing with a child under the age of 16. The charge does, in fact, indicate sexual abuse of a minor, because that is what indecent dealing with a child under 16 is. There is nothing in the complaint that the Applicant makes. However, the Applicant says that the fact that he had been charged or accused of such a crime influenced the AAT.
His reason for saying that is that, at paragraph 77, it refers to the Applicant saying the allegation was “fabricated”. At paragraph 79, which I have already read into the record, the Tribunal uses the word “fabricated” for many of their conclusions as to what was the origin of the claim that the Applicant had made.
In his affidavit filed 12 July 2019, the Applicant says this:
…My life is at risk and I did not fabricate any of this to support my claims the tribunal suggested that I would have told the delegate at my first interview. Therefore the tribunal’s decision that my life is not at significant harm and that I fabricated certain events that occurred to support my claim is not fair, based on identifying the wrong issues, ignoring the evidence they should have looked at and rather relying on material from my interview with the delegate that is irrelevant and unreasonable. If I didn’t remember to mention certain events to the delegate earlier doesn’t mean bringing them up at my second interview amounts to fabrication.
He then says:
… I had charges in court relating to indecently dealing with a child under the age of 16. This made me traumatised and confused during the period of both interviews because I was innocent. And one way or another it had an influence on both the delegate and the tribunal decision making. In p77 Both the delegate and tribunal referred to it as sexual abuse charges which was really wrong misinterpretation, misinformation. Those charges are currently being dismissed from court because I am innocent.
From p78 and onwards of the tribunal’s findings, reasons and decision that I fabricated anything to support my claim for the reason that I didn’t say that earlier when I had an interview with the delegate is unreasonable. You can sense the change in tone from p77 onwards when I said the charges against me in court was fabricated. The tribunal decided to use the same word (fabricate) against me unreasonably with no regards to the evidence at hand. I was depressed, stressing out and confused, especially when I was first brought into detention. I was mentally not in the right state and was not prepared for interviews. The fact I forgot to mention certain events that occurred to the delegate doesn’t mean bringing them up in my second interview was fabrication. I simply had enough time to properly remember the events the occurred and into details…
Whilst one may understand what it is that the Applicant is saying, the conclusion that the delegate came to is open on the evidence. The Delegate did not look simply at what the Applicant had said in the interview. The AAT looked at all of the evidence. It would seem to me on my reading of the decision, the most telling factor against the Applicant was that, in 2014 when he had the services of a migration agent, he did not tell that migration agent of the fear that he had of returning to Ghana. Because if that had happened, there would have been an application for a Protection Visa made.
The fact that the Applicant was looking at trying to access a Partner Visa, but did not do so because it was too expensive, really is quite telling according to the Tribunal. That conclusion seems to then be supported by the findings that the Tribunal has made about the Applicant’s claims, which it has decided, are fabricated.
Having gone through the decision thoroughly myself and seen the thoroughness as well with which the Tribunal has looked at the factual matrix, it seems to me that the conclusions made by the Tribunal were open on the evidence. If they are open on the evidence, then there is no jurisdictional error.
The complaints that the Applicant makes really are an invitation for impermissible merits review. The Applicant does not agree with the conclusion of the Tribunal and so simply says that they must have made a mistake, and they must have been unreasonable because ‘I do not agree with the result that has been arrived at’. That is not sufficient to find a jurisdictional error.
Therefore I am of the view that there has been no jurisdictional error.
I dismiss the application with costs in the sum of $5,000.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 16 October 2019