BUL15 v Minister for Immigration

[2017] FCCA 1688

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUL15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1688

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in referring to evidence, materials and findings of an earlier Refugee Review Tribunal’s decision – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 474,

Migration Regulations 1994 (Cth), reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZGIZ  v Minister for Immigration and Citizenship (2013) 212 FCR 235
SZKOX v Minister for Immigration and Border Protection (2015) FCA 990
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123

First Applicant: BUL15

Second Applicant: BUM15

Third Applicant: BUN15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2446 of 2015

Judgment of: Judge Emmett

Hearing dates:

13 April 2017

20 July 2017

Date of Last Submission: 20 July 2017

Delivered at: Sydney

Delivered on: 20 July 2017

REPRESENTATION

Solicitors for the Applicant: Sashimendra Singh
Sarom Solicitors

Solicitors for the Respondents: Thomas Liu
Clayton Utz

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2446 of 2015

BUL15

First Applicant

BUM15

Second Applicant

BUN15

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 3 August 2015 (“the Tribunal”).

2. The applicants are citizens of the Philippines. The first and second applicants are in a de facto relationship and the third applicant is their child. The first applicant claims to fear harm from his father-in-law in the Philippines (“the Applicant”). The second and third applicants are included in the Applicant’s application as members of the same family unit.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. The second applicant arrived in Australia on 17 April 2005 and the Applicant arrived in Australia on 25 March 2006.

2. On 1 November 2010, the applicants lodged an application for protection (Class XA) visas with the Department of Immigration and Citizenship (“the Department”).

3. On 28 March 2011, a delegate of the first respondent refused the applicants’ application for protection visas.

4. On 7 June 2011, the then Refugee Review Tribunal affirmed the decision of the delegate. Thereafter, the applicants resided unlawfully in Australia from February 2012 to February 2014.

5. On 20 February 2014, the applicants lodged a further application for protection visas on complementary protection ground following the decision of the Full Court of Federal Court of Australia in SZGIZ  v Minister for Immigration and Citizenship (2013) 212 FCR 235 (“SZGIZ”).

6. On 29 August 2014, the Delegate refused the applicants’ application for protection visas.

7. On 29 September 2014, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.

8. On 3 August 2015, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

9. On 7 September 2015, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has 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 that the non-citizen will suffer significant harm.”

4. Sections 36(2A) and 5 of the Act defines “significant harm.”

5. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

6. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The Applicant provided a statement in support of his protection visa application in which he stated:

   a)He married his wife in 1996 and they have two children.

   b)On 1 March 2000, he received a phone call from his father-in-law, threatening him not to contact his wife and two children.

   c)In December 2003, he and his cousin went to Mindoro to visit his children. The applicant’s father-in-law physically assaulted him and threatened to kill him if he returned to the house or tried to contact his wife and children. He was later informed by his neighbours that strangers were roaming around his place and monitoring his house.

   d)His father-in-law was/is a councillor in the Mindoro region and a member of the New People’s Army (“the NPA”). The applicant believed his refusal to join the NPA, despite his father-in-law’s insistence, led to his father-in-law’s hatred towards him.

   e)Despite his attempts to take his wife and children back, he continued to receive threats from his father-in-law. The applicant fled the country in 2005 to save his life. The applicant did not believe the authorities will protect him as his father-in-law has considerable political clout.

2. On 20 March 2014, the applicants’ migration agent provided the Department with a further statutory declaration made by the Applicant, in which the Applicant provided further details on his fears of returning to the Philippines. The Applicant provided the following additional claims:

   a)The Applicant was forced to marry his wife by his father-in-law after she became pregnant. The Applicant’s father-in-law was unhappy with him.

   b)In August 1999, the Applicant’s father-in-law came to visit him and his wife. The Applicant’s father-in-law tried to pressure him to join the NPA. When he refused, his father-in-law pointed a gun at him. An hour later, four soldiers came to the Applicant’s home and saluted at his father-in-law and ridiculed the Applicant.

   c)In October 1999, the Applicant’s father-in-law called the Applicant and told him to look out the window. The Applicant saw a jeep with five or six armed men in it, who stared at him. The men left without harming the Applicant.

   d)In 2003, after the Applicant was beaten by his father-in-law in Mindoro, the police prevented him from lodging a complaint. He was also visited by soldiers sent by his father-in-law and he was beaten by them at his home.

The Delegate’s decision

1. Pursuant to the decision of the Full Court of the Federal Court in SZGIZ, the Applicant was entitled to make a further application on complementary protection grounds where the first application was made and refused before the commencement of complementary protection by the introduction of s.36(2)(aa) of the Act on 24 March 2012.

2. On 25 July 2014, the Applicant attended an interview with the Delegate.

3. On 25 July 2014, the Delegate sent a natural justice letter to the Applicant giving him an opportunity to comment on information arising from his claims, what he told the Department at the time of his first protection visa application, and the earlier Refugee Review Tribunal decision dated 7 June 2011.

4. The Delegate did not find the Applicant’s claims to be credible by reasons of various inconsistencies in the Applicant’s claims and the implausibility of some of his evidence. However, the Delegate accepted that the Applicant received threats from his father-in-law subsequent to the breakdown of his marriage in 2000. The Delegate further accepted that the Applicant might have been assaulted in his father-in-law’s house on one occasion. However, the Delegate rejected the Applicant’s claim that his father-in-law was a member of the NPA or that his father-in-law ever tried to recruit him into the NPA. The Delegate rejected the Applicant’s claim that he was assaulted by NPA soldiers.  

5. On 29 August 2014, the Delegate refused the applicants’ application for protection visas on the basis that the applicants did not satisfy the complementary protection criterion in s.36(2)(aa) of the Act.

The Tribunal’s review and decision

1. On 29 September 2014, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 18 June 2015, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 29 July 2015 to give oral evidence and present arguments.

3. On 29 July 2015, the Applicant attended the Tribunal hearing and gave evidence.

4. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

5. The Tribunal accepted that the Applicant’s father-in-law was unhappy with the Applicant. The Tribunal also accepted that the Applicant’s wife took the children away from him in 2000 and that the Applicant’s father-in-law refused to allow the Applicant to see his children. The Tribunal further accepted that the Applicant’s father-in-law may have been abusive towards him and warned the Applicant to stay away from his children and wife.

6. However, the Tribunal rejected the Applicant’s claim that his father-in-law is involved with the NPA. The Tribunal noted that the Applicant’s claim as to the harm he suffered from his father-in-law has become increasingly elaborate since his initial application in 2011. The Tribunal did not accept the Applicant’s explanation as to why those claims were not raised until 2014. The Tribunal found that the Applicant had only raised these claims in order to obtain a protection visa.

7. The Tribunal further noted that the Applicant’s delay of five years in applying for a protection visa. The Tribunal was not satisfied by the Applicant’s explanations for that delay. The Tribunal found that the delay was indicative that the Applicant’s claims were fabricated.

8. The Tribunal found that the Applicant did not provide a truthful account of his reasons for leaving the Philippines. The Tribunal did not accept that the Applicant’s father-in-law was a member of the NPA or that the Applicant’s father-in-law tried to force him to join the NPA. The Tribunal also did not accept that the Applicant was ever harmed by members of the NPA.

9. The Tribunal also considered the documents provided by the applicants in support of the application. The Tribunal gave those documents no weight because it did not consider that they overcome the problematic nature of the Applicant’s own evidence.

10. Having considered the applicants’ claims, the Tribunal found that there was no credible evidence before it that anyone in the Philippines would harm the applicants. Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the receiving country, the Philippines, there is a real risk that the applicants would suffer significant harm.

11. Accordingly, having determined that the applicants did not satisfy the complementary protection criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The Applicant was represented before this Court by his solicitor, Mr Sashimendra Singh. 

2. The matter first came before me for final hearing on 10 April 2017. On that occasion, I granted leave to the applicants to file a Further Amended Application and any further evidence and submissions in support.

3. On 12 May 2017, the applicants filed a Further Amended Application identifying the following Ground:

   “The Administrative Appeals Tribunal (the Tribunal) applied the incorrect test in determining the complementary protection criteria in s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act). The Tribunal relied on earlier evidence. materials and findings referred to an earlier Administrative Appeals Tribunal decision record in determining that the applicant did not satisfy s.36(2)(aa)of the Act. In not considering the evidence before it, the Tribunal denied the applicant procedural fairness. This constitutes jurisdictional error.

   Particulars

   The test for whether there is within the meaning of s.36(2)(aa). a real risk of significant harm is the same as the test of whether there is a real chance of persecution (as that is defined in s.36(2A)) were he to be returned to the Philippines: Minister for Immigration v SZQRB [20131 FCAFC 33; 210 FCR 505 AT [246]. At (CB147 [5]). the Tribunal stated:

   “As the applicant has previously had his claims for protection assessed under s.36(2)(a), the Tribunal must confine its consideration to whether he satisfies the requirements of s.36(2)(aa), and whether the second and third named applicants satisfy the criteria in s.36(2)(c).”

   The applicant submits that the Tribunal did not do anything to address the issues that, as a necessary and foreseeable consequence of the applicant being removed from Australia to return to the Philippines, there would be a real risk that the applicant will suffer significant harm.

   At (T18 (29) to (T19 (15) the Tribunal asks the applicant the question as to what he felt would happen if he returned to the Philippines. The applicant states that he will be tortured and his life will be in danger and that he “has been posted by the MPA (sic) to be eradicated.” The Applicant later in exchange states “…as I told you, the risk in my life, that there is a possibility of a significant harm coming to me. So I made this appeal again. I made a detailed statutory declaration which I have submitted detailing these fears of mine.”

   The above passage shows that this was the only discussion on the significant harms aspect of the applicant's case; and that too was brought up by the applicant. The Tribunal at no time specifically addressed the applicant's significant harm fears.

   At various parts of the Tribunal's Decision Record, it is plainly obvious that the Tribunal relied on the earlier evidence, materials and findings of an earlier Administrative Appeals Tribunal rather than determining the evidence before it. The Tribunal did not put the applicant on notice that it was not going to consider his claims based on the significant harm he may face on return to his country. Rather than considering the evidence before it, the Tribunal's Decision record shows that the Tribunal relied on the previous decision. In not considering an essential integer of his claim to fear significant harm, the Tribunal committed jurisdictional error.

   This Further Amended Application in relation to Ground 4 will be elaborated in detail in the applicant's Further Amended Outline of Submissions.”

4. At the commencement of the hearing this morning, Mr Singh confirmed that the applicants relied only on the ground identified in the Further Amended Application.

5. At the heart of the applicants’ complaint in that ground is a contention that the Tribunal erred in its reliance on findings made by the earlier Refugee Review Tribunal.

6. In support Mr Singh referred to three particular paragraphs of the Tribunal’s decision record.

7. The first was paragraph 31 of the Tribunal’s decision record. Mr Singh submitted that the summary by the Tribunal in that paragraph relating to the delay in applying for protection was confined to the findings only of the earlier Refugee Review Tribunal. Mr Singh referred to a transcript of the hearing annexed to an Affidavit of the Applicant. Mr Singh submitted that the Tribunal’s summary did not accurately reflect page 16 of the transcript. However, on closer examination, Mr Singh did not appear to press his complaint.

8. A fair reading of the Tribunal’s summary of that evidence does not support the submissions made by Mr Singh and makes clear that the Tribunal accurately summarised the evidence before it and which it then considered.

9. Mr Singh made similar complaints about paragraph 34 of the Tribunal’s decision record. A fair reading of the Tribunal’s decision record makes clear that Mr Singh made the same error in relation to his submission in support of paragraph 34 as he did in paragraph 31.

10. Mr Singh also referred to paragraph 35 and submitted that the Tribunal’s findings were no more than repetitions than those made by the earlier Refugee Review Tribunal. A fair reading of the Tribunal’s decision record does not support that submission. The Tribunal was doing no more than reciting the Applicant’s own claims.

11. Mr Singh confirmed that he made no other submission in support of the Further Amended Application.

12. It is well established that a decision maker may refer to materials, findings and evidence of the earlier Refugee Review Tribunal.

13. The Tribunal in this case was reviewing a decision to refuse to grant a protection visa application brought on the basis of the reasoning in SZGIZ. In considering a further application on the basis of complementary protection pursuant to s.48A of the Act, s.416 of the Act makes clear that in considering that further application, a tribunal is not required to consider any information considered in the earlier application; and may have regard to and take as correct any decision that a review body had made about or because of information considered in the earlier the application.

14. In SZKOX v Minister for Immigration and Border Protection (2015) FCA 990 at [29], Reeves J stated that a tribunal was permitted to have regard to the findings of a previously constituted tribunal, however, it was still required to properly consider all the evidence and submissions duly placed before it. The Tribunal must exercise its independent judgment when considering the application for review before it.

15. In the case before this Court, the Applicant expressly referred to the earlier decision in statutory declarations made by him in support of his application before the Tribunal.

16. Moreover, the Department’s letter dated 25 July 2014 raised with the Applicant concerns that a decision maker may have arising out of various identifiable inconsistencies in the Applicant’s written claims and evidence to the earlier Refugee Review Tribunal decision.

17. The Tribunal was permitted to rely on materials and findings that were before the earlier Refugee Review Tribunal provided there was no impermissible reliance on the earlier Refugee Review Tribunal.

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant and explored its concerns with the Applicant at a hearing and noted the Applicant’s responses. The Tribunal found that the inconsistencies and significant embellishments since his first protection visa application were indicative of the fact that the Applicant had fabricated his claims to fear harm at the hands of his father-in-law.

2. The Tribunal further found that the considerable delay of five years for the lodgement of his first protection visa application to be further indicative of the Applicant’s claims having been fabricated. The Tribunal referred to that issue being raised by the earlier Refugee Review Tribunal and went on to note that the Tribunal asked the Applicant at the hearing in July 2015 further about that delay and noted the Applicant’s responses.

3. Ultimately, the Tribunal did not find the Applicant to be a credible witness and did not accept that he had been harmed in the past by his father-in-law. The Tribunal identified the other claims made by the Applicant about his concerns in returning to the Philippines.

4. The Tribunal concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to the Philippines that there was a real risk that he would suffer significant harm. In reaching that conclusion, as stated above, the Tribunal considered all claims made by the Applicant as to why he may be at risk of significant harm.

5. The Tribunal’s findings and conclusions were open to it on the evidence and materials before it and for the reasons it gave. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

6. It is well established that a tribunal’s disbelief of an applicant’s evidence arising from inconsistencies is not “information” that is required to be put to an applicant for comment. Nor does information include a tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

7. The Tribunal brought an independent mind to its consideration of the applicants’ claims in its consideration of whether the applicants met the complementary criterion in s.36(2)(aa) of the Act.

8. Whilst stated in the Ground in support in the Further Amended Application that the Tribunal “at no time specifically addressed the Applicant’s significant harm fears”, Mr Singh made no further submission in support of that contention. In any event, such a contention is not made out on the face of the Tribunal’s decision record.

9. Accordingly, the proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 20 July 2017