Bup18 v Minister for Home Affairs

[2019] FCCA 167

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUP18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 167

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5H, 36, 351

Migration Regulations 1994 (Cth)

Cases cited:

AFJ16 v Minister for Immigration [2017] FCA 523

NBAD v Minister for Immigration [2004] FCA 388

First Applicant: BUP18

Second Applicant: BUQ18

Third Applicant: BUR18

Fourth Applicant: BUS18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 992 of 2018

Judgment of: Judge Driver

Hearing date: 30 January 2019

Delivered at: Sydney

Delivered on: 30 January 2019

REPRESENTATION

The Third and Fourth Applicants appeared in person

Solicitors for the Respondents: Mr T Hillyard of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The first, second and third applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 992 of 2018

BUP18

First Applicant

BUQ18

Second Applicant

BUR18

Third Applicant

BUS18

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 March 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. 

2. There are four applicants, who are a father, his wife and their two daughters.  All but the fourth applicant are now adults.  The first and second applicants have returned to Fiji, and the third and fourth applicants remain in Australia and have pursued the visa application through the Tribunal and thereafter in this Court. 

3. The third and fourth applicants appeared in person for today’s hearing.  They told me that the third applicant is working and about to undertake a TAFE course, and the fourth applicant is in year 10 at high school.

4. Background facts are otherwise set out in the Minister’s outline of submissions filed on 23 January 2019.   

5. The first applicant arrived in Australia as the holder of a Religious Worker (Class GB) visa.[1]  That visa was valid until 30 June 2016, and on 24 June 2016, the first applicant made an application for a further religious worker visa which was refused.[2]

   [1] Court Book (CB) 93

   [2] CB 93

6. On 3 November 2016, the applicants lodged an application for protection visas.[3]  The second, third and fourth applicants did not raise their own claims for protection and relied on the first applicant’s claims for protection.[4]  On 20 February 2017, the delegate refused to grant the applicants protection visas.[5]

   [3] CB 2-38

   [4] CB 3

   [5] CB 92

7. On 6 March 2017, the applicants applied to the Tribunal for review of the delegate’s decision.[6]  On 11 October 2017, the first and second applicants returned to Fiji and have not entered Australia again.[7]  On 25 January 2018, the applicants were invited to attend a hearing.[8]

   [6] CB 104

   [7] See affidavit of Claire Campbell affirmed 10 January 2019 at [3]-[7].

   [8] CB 112-115

8. On 15 February 2018, only the third and fourth applicants appeared before the Tribunal to give evidence and present arguments.[9]  The third and fourth applicants advised the Tribunal that their parents had returned to Fiji and that they remained there.[10]  The Tribunal proceeded to hear the claims of the third and fourth applicants.[11]

   [9] CB 116

   [10] CB 126 [11]

   [11] CB 126 [10]

9. On 14 March 2018, the Tribunal affirmed the decision under review.[12]

   [12] CB 124-132

Applicants’ claims

1. The applicants’ claims for protection were contained in a statement attached to their protection visa application and can be summarised as follows:[13]

   a)their son/brother had pressed charges against their nephew/cousin (R) and R was convicted of common assault, resulting in the imposition of an 18 month good behaviour bond;

   b)this family dispute put them at risk of harm; and

   c)there was no safety in Fiji as anarchy was on the rise and the state did not have enough resources to cope with the problems.

   [13] CB 67

2. In a post-hearing submission, the applicants’ representative made the following further claims:[14]

   a)R ran a “vicious campaign” against the applicants;

   b)the first applicant’s son was deported from Australia to Fiji and he had to return to look after him;

   c)his son was unable to work due to rumours circulated by R and was badly hurt twice by people believed to have been hired by R;

   d)R received the good behaviour bond following an incident where he choked the applicant’s son.  R believed that the incident was reported to police by the third applicant; and

   e)the first and second applicants and their son had been living in hiding in Fiji.

   [14] CB 119-120

Tribunal decision

1. The Tribunal decided that the hearing would proceed, notwithstanding the parents having returned to Fiji, to allow the third and fourth applicants, to present their claims.[15]

   [15] CB 126 [10]-[11]

2. The Tribunal noted that the third and fourth applicants essentially repeated their father’s claims and in addition claimed that they could be killed or raped.  When questioned, the third applicant confirmed that their claim was the same as their parents’ claims for protection.[16]  The Tribunal put to the third and fourth applicants at the hearing that given they had the same claims for protection as their parents who had voluntarily returned to Fiji, it would be unlikely that the Tribunal would conclude that they faced a risk of harm if returned.[17]

   [16] CB 126 [13]

   [17] CB 126-127 [13]-[14], [24]

3. The Tribunal questioned the third applicant as to why she and the fourth applicant would be harmed, given her parents had been able to return to Fiji without incident, and she replied that her father had put in the protection visa application mainly to protect his daughters and they were the main focus of the harm.[18]

   [18] CB 127 [16]

4. In relation to the first and second applicants, the Tribunal found, based on the third applicant’s evidence, that they had returned voluntarily to their country of citizenship and accordingly no longer met the criteria in s.5H of the Migration Act 1958 (Cth) (Migration Act) and could therefore not validly claim protection in Australia.[19]

   [19] CB 127 [20]; a reference to the requirement in s.5H(1)(a) that an applicant be “outside the country of his or her country of nationality”

5. In relation to the third and fourth applicants, the Tribunal considered the claim that their father had made the protection visa application mainly based on their fear and rejected it based on the wording of the claims in the application.[20]  The Tribunal further found that they did not have any separate claims of their own.[21] 

   [20] CB 127 [16], [21]

   [21] CB 127 [21]

6. The Tribunal gave the third and fourth applicants an opportunity to provide any post-hearing submissions from their lawyer.  The applicants availed themselves of this opportunity and submissions were subsequently provided.[22]  The Tribunal considered that the submissions reiterated the harm that the first applicant claimed to fear for himself and his family.[23]

   [22] CB 127 [17], [22]

   [23] CB 127 [22]

7. The Tribunal also received a document from the first applicant after the decision had already been drafted.[24]  The Tribunal recalled the decision, considered the document (which it found was “quite confusing”) and found that there was nothing in it to alter its decision.[25] The Tribunal noted that the first applicant’s claim that the document was provided late due to the fact that he was working was inconsistent with the claims made in the post-hearing submissions that he was in hiding in Fiji.[26]

   [24] See affidavit of Claire Campbell affirmed 10 January 2019 at [12].

   [25] CB 127 [23]

   [26] CB 127 [23]

8. The Tribunal considered that the fact that the first and second applicants had voluntarily returned to the place where they claimed they would be killed were not actions indicative of someone who feared serious harm.  Accordingly, the Tribunal was not satisfied that the first and second applicants feared harm as claimed in the post-hearing submissions.[27]

   [27] CB 127 [24]

9. Further, the Tribunal found that the first applicant’s claims did not have any evidentiary support.  In particular, the Tribunal noted that there was no indication that the first and second applicants had sought the protection of the Fijian police, nor were there any medical or police records of the alleged attacks on their son, and their claim to be in hiding was implausible.[28]

   [28] CB 128 [25]

10. The Tribunal did not accept the first applicant’s post-hearing claims to have returned to Fiji to help his son reintegrate into Fijian society, finding instead that he was able to return because the claims for protection were fabricated and the applicants faced no danger in Fiji.  The Tribunal found that it followed that the third and fourth applicants would not face a real chance of serious harm if returned to Fiji.[29]  Given that the third and fourth applicants did not advance any other claims to fear persecution, the Tribunal was not satisfied that the third and fourth applicants were people whom were owed protection for a Convention reason now or in the reasonably foreseeable future.[30]

    [29] CB 128 [26]

    [30] CB 128 [27]

11. The Tribunal also did not accept the applicants’ claim that there was no safety in Fiji and anarchy was on the rise, finding that the country information before it did not support such a view of the security situation in Fiji.[31]

    [31] CB 128 [28]

12. In relation to the complementary protection criterion, the Tribunal was not satisfied that the third and fourth applicants were caught up in a family dispute in Fiji and would be targeted as a result, and was therefore not satisfied that there was a real risk that they would suffer significant harm if returned. Accordingly, the Tribunal found that the third and fourth applicants were not owed protection under s.36(2)(aa) of the Migration Act.[32]  Accordingly, the Tribunal affirmed the decision under review.[33]

    [32] CB 128 [29]-[30]

    [33] CB 128 [31]-[32]

The present proceedings

1. These proceedings began with a show cause application filed on 10 April 2018.  The applicants continue to rely on that application.  It is supported by an affidavit filed with it.  I received that affidavit as a submission. 

2. The Tribunal decision is annexed to the affidavit.  Also annexed to the affidavit are two letters from a Mr S, dated 21 March 2018.  I marked those letters for identification,[34] but declined to receive them on the basis that the letters were dated after the Tribunal decision. 

   [34] MFI A1

3. I have before me as evidence the court book filed on 1 June 2018 and the affidavit of Claire Campbell made on 10 January 2019.  Ms Campbell deposes as to the migration history and status of the first and second applicants in particular. 

4. I also received as an exhibit,[35] documents tendered by the third applicant evidencing a recent unsuccessful visa application by her parents.

   [35] Exhibit A2

5. The circumstances in which the third and fourth applicants find themselves evoke some sympathy.  They are young.  Indeed, the fourth applicant is still a minor and studying at high school.  They have been left in this country by their parents, who have returned home arguably in order to care for their son, who was deported from Australia and required their support. 

6. The relevant claims for protection were made by the first applicant and the second, third and fourth applicants were essentially members of his family group.  These third and fourth applicants were, nevertheless, permitted to make their own claims before the Tribunal.  In doing so, they mirrored the claims of their father.  Given that their father and mother have returned to Fiji, it is unsurprising that the Tribunal found that it was not satisfied that the claim warranted the grant of protection visas to the third and fourth applicants.  I accept from exhibit A2 that the first and second applicants did attempt to return to Australia, but their visa application was refused very recently. 

7. In my view, there is no arguable case of jurisdictional error by the Tribunal in this matter.  The Minister’s submissions traversed the grounds of review advanced.  I agree with those submissions.

8. The application advances two grounds of review which can be summarised as follows:

   a)the Tribunal incorrectly interpreted the law under s.36(2)(a) and s.36(2)(aa) of the Migration Act and Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) as applicable to the applicants’ circumstances; and

   b)the Tribunal ignored relevant material (namely, the evidence provided by the third and fourth applicants orally), which amounted to jurisdictional error.

9. The particulars to Ground 1 contend that the Tribunal did not consider the fears held by the third and fourth applicants about the harm they would face if returned to Fiji, despite their having presented their evidence at the hearing.  This ground is misconceived.  The Tribunal provided both the third and fourth applicants with an opportunity to present their claims at the hearing and asked them whether they relied on their father’s claim for protection and whether they had any other claims to fear harm.  On the face of the decision record, the Tribunal also made clear that it considered the question of whether the third and fourth applicants would face serious harm in Fiji, in circumstances where their parents had returned there.[36]

   [36] CB 126 [14]

10. The Tribunal then proceeded to make a decision specifically in relation to the third and fourth applicants.  As summarised above, the Tribunal was not satisfied of the credibility of the first applicant’s claims to fear harm and in the absence of any additional claims to fear harm made by the third and fourth applicants, found that they did not have a well-founded fear of persecution nor was there a real risk of significant harm if they returned to Fiji.  This finding was open to the Tribunal on the material before it.

11. The Tribunal otherwise accurately set out the relevant tests for refugee and complementary protection under s.36 of the Migration Act and applied the tests to its findings. Accordingly, there is no error apparent in the Tribunal’s application of the law as required by s.36(2)(a)-(aa) or Schedule 2 of the Regulations.

12. The particulars to Ground 2 assert that the Tribunal failed to properly consider the evidence given by the third and fourth applicants as being significant to their claims for protection.  This ground does not specify which aspect of the evidence the Tribunal failed to consider.  As recorded in the Tribunal’s decision, the third and fourth applicants’ evidence at hearing largely comprised a confirmation that they each relied on the claims made by their father and they had no separate claims of their own.[37]

    [37] CB 126-127 [13]-[17]

13. The onus lies with the applicants to establish the basis for inferring that evidence was not considered by the Tribunal.  Given the Tribunal’s express reference to oral evidence provided by the applicants at the hearing, and the absence of any transcript evidence suggesting that some aspect of the oral evidence was overlooked, the applicants have identified no basis for the contention that the Tribunal failed to consider relevant evidence.

14. The grounds of review do not establish any jurisdictional error on the part of the Tribunal.

Conclusion

1. I conclude that the applicants are unable to establish an arguable case of jurisdictional error by the Tribunal. The third and fourth applicants in Australia may be deserving of other assistance that the Minister may feel minded to provide should he be willing to consider their circumstances under s.351 of the Migration Act. That is beyond the scope of these proceedings. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs against the first, second and third applicants.  Notwithstanding that they have left Australia, the first and second applicants have maintained an interest in these proceedings.  It is appropriate, therefore, that they should bear the burden of a costs order. 

3. The third applicant has actively pursued the present application and should also be subject to a costs order.  She claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

4. I will order that the first, second and third applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:         1 February 2019