BVY17 v Minister for Immigration
[2018] FCCA 503
•29 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVY17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 503 |
| Catchwords: MIGRATION – Claims by Applicants of fear of persecution in Peru due to former political activity in that country – Tribunal made adverse findings regarding the credibility of the Applicants which were open to it on the evidence – significant problems in the conduct of the Application by Applicants’ original lawyer – no grounds of review established – Application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 65 Federal Circuit Court of Australia Act1999 (Cth), s.50 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224; (2004) 207 ALR 12 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 |
| Applicant: | BVY17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 33 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 28 August 2017 |
| Date of Last Submission: | 30 August 2017 |
| Delivered at: | Canberra |
| Delivered on: | 29 March 2018 |
REPRESENTATION
| Solicitors for the Applicants: | Hugh Ford & Associates |
| Solicitors for the Respondents: | Clayton Utz (Canberra) |
ON A FINAL BASIS, THE COURT ORDERS THAT:
The Application filed by the Applicant on 1 May 2017 be dismissed.
The Applicant is to pay the Respondent’s costs as per Schedule 1, Part 3 Division 1 of the Federal Circuit Court Rules 2001.
THE COURT FURTHER ORDERS THAT:
The solicitor for the Applicant is to file written submissions of no more than 6 pages in length within 14 days of the date of these Orders, being by close of business on 12 April 2018, as to why the Court should not:
(a)Injunct him from appearing before Judge Neville in future;
(b)Refer his conduct to the ACT Law Society; and
(c)Refer his conduct to the ACT Bar Council.
Should the Court decide to proceed to the referrals foreshadowed at Order 3 of these Orders, the Court may do so without further notice to the parties.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 33 of 2017
| BVY17 |
First Applicant
BVZ17
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 1st May 2017, the Applicants filed an Application seeking review of a decision of the Administrative Appeals Tribunal (“the Tribunal” or “the AAT”), dated 7th April 2017.[1] The Tribunal dismissed the review Application and affirmed the decision of the Delegate of the Minister not to grant the Applicants a protection visa under s.65 of the Migration Act 1958 (“the Act”).
[1] That decision is at Court Book pp.328 – 346. Hereafter “CB” followed by the relevant page number.
The Application of May 2017, as filed, contained 19 grounds of review. Unfortunately, many of them (noted in detail below) were either simple and unsubstantiated assertions and or submissions. Other grounds only claimed disagreement with the conclusions of the Tribunal notably in relation to matters of weight afforded to the evidence presented by or on behalf of the Applicants. It was also common to find a number of distinct grounds within the one formal ground.
For example, the solicitor on the record for the Applicants set out the following grounds in the Application:
1) The Tribunal’s decision is affected by Jurisdictional [sic] errors.
2) The Tribunal decision suffers from error [sic] of law.
3) The Tribunal made a jurisdictional error by not giving due weight to the evidence of the applicants when considering whether there are genuine threats to the life of the Applicants. The tribunal failed to take into account the relevant consideration that the applicants will be harmed and tortured if they return to Peru and there is no other safer place in Peru for them to live upon their return.
4) There are a number of relevant facts/considerations which the Tribunal ignored and did not take into account while reaching the decision instead minor inconsistencies were given weight and raised questions on the applicant’s [sic] credibility.
On 16th August 2017, a different solicitor for the Applicants filed written submissions, which, in my view, provided a more systematic and more correctly articulated series of grounds of review, as well as withdrawing or not pressing some of the grounds set out in the original Application (e.g. Grounds 3 and 6 were not “pressed” or were formally abandoned). However, in abandoning these grounds, which related to alleged threats to the Applicants and the consequent allegation that these threats led to fear of persecution, it was not explained or commented on why such abandonment should not equally apply to later and very similar grounds (e.g. Grounds 8, 9, 18).
In any event, for the reasons that follow, the Application to review the Tribunal’s decision must be dismissed. For the same reasons, the Applicants are to pay the Minister’s costs according to the scale in this Court’s Rules.
Unfortunately, there is one other matter that requires the Court’s attention.
Most regrettably, and not for the first time, I need also to note the Court’s very significant concerns regarding the conduct of the Applicants’ solicitor on the record. In almost every migration matter in which he appears (as well as matters in other areas of federal law), including the current review Application, and as noted in detail later in these reasons, the solicitor:
(a) frames arguments or grounds of review that are untenable (e.g. issues of the “weight” given by the Tribunal to evidence in the course of the hearing before it);
(b) consistently/persistently relies upon the same dissenting judgment of Kirby J in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (“SGLB”),[2] notwithstanding that the same argument has been rejected, each in separate judgments in different Applications brought by the same solicitor, by Gordon, Nettle and Bell JJ in multiple recent High Court appearances;
(c) improperly frame grounds of review;
(d) is ill-prepared for the hearing (the solicitor never attends Court with either a copy of the Act or any authority on which he relies), and is not familiar with recent authorities, which, in my view, shows (among other things, both disrespect to the Court and in different respects, to his clients; and
(e) regularly argues that there is no distinction between grounds of review and proper particulars, which doubtless would be something of a surprise to the High Court in the light of statements made by it in cases such as Banque Commerciale SA (en liq) v Akhil Holdings Ltd in which the Court there stated the importance of each party having adequate notice of the case that will have to be met at the hearing.[3]
[2] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224; (2004) 207 ALR 12.
[3] Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287 (“Banque Commerciale”).
A copy of the transcript of 28th August 2017 is attached to these reasons. It records the Court raising a number of these concerns with the solicitor, to little or no avail.
Because of the consistency and regularity of these failures on the part of the solicitor in question, I am constrained to require him to show cause why I should not immediately injunct him from appearing before me in the future. The failures to which I have referred have now reached a stage where it wastes significant time and resources of the Court as well, no doubt, as those of his clients. He is to file written submissions, of no more than six (6) pages, within 14 days of the date of this judgment to explain why I should not take the steps I have indicated and also why I should not refer him, again, to the Law Society and the Bar Council of the Australian Capital Territory.
The Tribunal’s Decision
The Tribunal’s decision addressed the following matters (a) the Applicants’ evidence before the Department, and (b) the evidence put before the Tribunal (pars.10 – 41). Under the heading “Findings and Reasons”, the Tribunal addressed the following claims.
First, under the sub-heading of “Nationality”, the Tribunal accepted the Applicants as nationals from Peru, and noted their claim to fear harm from political opponents in the Nueva Amazonia party who are in power in their home town of Soritor. The First Applicant claimed that his political opponents threatened him in the past. He also claimed that since he has been in Australia his lands have been wrongfully and illegally taken from him for reasons outlined at par.45.
The First Applicant claimed to have received threatening telephone calls, and that in July 2009 he was stopped and threatened on the street in his home town by persons he believed to be associated with the “rondas campesinas”. He is fearful of returning home because he still has some political ambitions and fears his political opponents will harm him or his family should he do so.
Secondly, at par.46, while the Tribunal accepted the general narrative of the First Applicant’s claims, it found that he had “exaggerated and embellished” his claims regarding his level of political activity and political aspirations to strengthen his protection claims.
Thirdly, at pars.47 – 48, the Tribunal generally accepted the evidence of the First Applicant regarding him being a political supporter in his home town of the party noted in the reasons of the Tribunal, and equally that he had supported his uncle, who was Mayor in 2003 – 2005. It also accepted that the First Applicant’s general involvement in the political movement and his adherence to the party and its political ideology (the Fujimorismo political ideology).
Fourthly, at pars.49 – 53, the Tribunal did not accept the First Applicant’s evidence regarding threats to him in 2009. Among other things, it concluded that, based on “country information” cited, the political opponents identified by the First Applicant had not been relevantly politically active since the late 1990s. Perhaps most significantly, the Tribunal further found that the First Applicant did not report the incident he complained of, and that he fled firstly to Lima then to Australia but left behind his daughter “in the place where he allegedly faced a threat.”[4]
[4] See par.50 of the Tribunal’s reasons.
The Tribunal ultimately did not believe the First Applicant’s account and generally doubted his credibility; it did not accept that the First Applicant fled to Peru for any Convention reason, or that there was a real chance or real risk of harm upon return to Peru.
Fifthly, at pars.54 – 55, the Tribunal rejected claims that the First Applicant’s Mother has received death threats since 2009, not least because he has chosen to leave his daughter with his Mother residing in his home town, Soritor.[5]
[5] See also reasons, pars.70 & 71.
Sixthly, at pars.56 – 59, the Tribunal considered in detail the First Applicant’s political involvement and aspirations. Having done so, the Tribunal concluded that he had exaggerated his position and significance in his political party to strengthen his claims for protection. It rejected his claim to have been, or that he aspires to be, a political leader.
Seventhly, the Tribunal considered at length the First Applicant’s claims in relation to the alleged re-possession of his land (pars.60 – 75). Stated summarily, the Tribunal accepted that there had been a dispute in relation to land owned by the First Applicant. However, on the evidence put before it, it was unclear what had actually transpired before the Court of Transitional Mixed Matters, other than that it appeared that the First Applicant had been involved in proceedings before that Court but had not been successful, and therefore was “not ultimately satisfied with the outcome.” (par.61)
In the same place, the Tribunal ultimately found that the alleged “usurpation” of the First Applicant’s land was not established and that he had been involved in legal proceedings concerning it, which were formally unsuccessful. Further, the Tribunal found that the so-called usurpation of the land was not politically motivated or as a result of the First Applicant’s “political opinion.”[6]
[6] Pars.67 – 68.
Indeed, at par.69, the Tribunal noted that the Applicant (on his own evidence) still had “substantial landholdings” in Soritor, which he had given to a real estate agent to sell. To date, approximately 40% of his landholding had been sold. The Tribunal concluded on the basis of this evidence that the First Applicant “has not been precluded or prevented from realising a financial benefit from his assets, notwithstanding his past or ongoing land dispute with the Municipality or his political differences with the present administration.”[7]
[7] Pars.69 – 70.
Eighthly, the Tribunal noted that the First Applicant’s political party (noted earlier) has been “quite influential and powerful in recent years.” It ultimately found that the claims made by the First Applicant were not supported by the evidence he provided to the Tribunal, and in fact was undermined by the “country information” before the Tribunal.[8]
[8] Pars.72 – 73.
Finally, for reasons previously given (and summarised at par.77) the Tribunal found that the Applicants did not satisfy the “complementary protection criteria” set out in s.36(2)(aa) of the Act.
Grounds of Review
As per the Application filed 1st May 2017, the Grounds of Review were as follows:
1. The Tribunal’s decision is affected by Jurisdictional errors.
2. The Tribunal’s decision suffers from error of law.
3. The Tribunal made a jurisdictional error by not giving due weight to the evidence of the applicants when considering whether there are genuine threats to the life of the Applicants. The tribunal failed to take into account the relevant consideration that the applicants will be harmed and tortured if they return to Peru and there is no other safe place in Peru for them to live upon their return.
4. There were number of relevant facts/considerations which the Tribunal ignored and did not take into account while reaching the decision instead minor inconsistencies were given weight and raised questions on the applicant's credibility.
5. In paragraph 12 the applicant explained about his addresses, education, employment history, family composition, properties own his partner and her family and the political work he attended while he was in Peru. The Tribunal questioned about the distance between Soritor and Lima and how he travelled regularly between these two places. The Applicant clearly explained to the Tribunal that he lived at the first address in Soritor where he grew up and moved to another address in Soritor with her partner and daughter and lived in Lima when he was studying and working. Also he explained the he regularly travelled back and forth between Soritor and Lima as he was actively engaged in political activities on behalf of his party. It was a 45 minute flight between these two places, or 22 hours by car. The applicant told the Tribunal that he made regular trips, sometimes several times a month, because of his political engagements. The distance between Soritor and Lima and the way he travelled between these two places is irrelevant. Instead the Tribunal should have looked into the fact that the Applicants have serious threats to their lives due to first applicant’s active involvement in politics against the current administration in Peru.
6. In paragraph 13 the Tribunal ignored the answers given by the applicant. When asked a question about his visit to Australia. The Applicant explained that apart from her wife's studies he was having problems back in Peru as he was actively involved in political campaigns of his uncle and as a result of which he received several threats.
7. From paragraph 14 to 18 the Applicant explained about the incident happened while he was travelling by a motorcycle and he and his family was threatened by some government supporters. The Tribunal asked him whether he knew about those people who threatened him in response to which he said, later he found out their identities. The Tribunal did not take proper account ofthis information while reaching the decision.
8. In paragraph 19 the Tribunal asked the first applicant why he did not move to Lima instead of leaving the country. The applicant gave the reasons why he did not move to Lima or any other part of the country and explained that there is no safer place for him to reside as he is actively involved in politics and is well known around the country for his political activities.
9. At paragraph 31 to 36, in support of the claim of the first applicant, the second applicant provided a narrative of events during her visit back to Peru and when she was living with the applicant in Peru. It was a detailed information explaining how the applicants face real risk of harm in the hands of some political groups.
10. At paragraph 47 and 48 the Tribunal accepted the first applicant's political involvements back in Peru.
11. In paragraph 49 to 53 the Tribunal raised doubts on the credibility of the applicant. The Tribunal was not satisfied with the claims of the applicant regarding threats to his life and without any evidence in hands contrary to the applicants' claim the Tribunal refused to take proper account of these claims which is against the ruling of the High Court of Australia in Minister for Immigration and indigenous Affairs v SGLB 2004 HCA 32.
12. At paragraph 56 to 59 the Tribunal did not accept the fact that the first applicant has political rivalry and without any available evidence to the contrary termed his claims as exaggerations which is against the High Court's rulings in Li case where Court decided that the Tribunal is required to act in a fair manner.
13. From paragraph 60 to 69 the Tribunal discussed the land disputes between the applicants and his political rivals. But while reaching the decision declined to accept that those disputes were genuine or even took place and consequently resulted in failing to take the relevant consideration into account.
14. The applicant gave evidence in the hearing that he has commenced legal action to take his land back from the city Mayor and to support his claim he also provided some documentations about these proceedings. The applicant claimed that he was targeted by the local city Mayor and who forcefully took the possession of his land which he announced to distribute among villagers in return for votes.
15. The Tribunal accepted that the applicants have land dispute with the Mayor and evidence of court proceedings against the Mayor 's action in relation to it. However, the Tribunal failed to make any findings as to the credibility of the evidence despite having documentary evidence in relation to the dispute.
16. At paragraph 71 the Tribunal considered that there has been a significant change of administration at the national level but did not accept the applicant's claim that the Nueva Amazonia party is growing in power and that the applicant will be considered as a threat in achieving their political goals and thus committed an error of law.
17. Again at paragraph 73 to 75 the Tribunal did not take into account the serious chances of harm to the applicant on the basis of his political opinions as described by s91 of the Act. Having a property and attempt to sell it through an agent does not negate the fact that the applicants face real chance of harm if returned back to Peru. On the basis of the evidence afforded by the applicants, the applicants under the Refugee Convention satisfy the criterion set out in s36 (2)
18. The Tribunal failed to give proper weight to the evidence given by the applicants to determine if there are genuine threats to the applicant's life if they have to go back to Peru instead affirmed the decision of the Minister not to grant the protection visa to the applicants.
19. The applicant reserve the right to add, amend or withdraw any other ground to support his claim
Submissions on behalf of the Applicant
On 16th August 2017, the Applicants filed an Outline of Submissions. They were as follows (footnotes omitted) (paragraph numbers have been inserted for ease of reference) (for completeness, I note that a solicitor employed by the solicitor on the record prepared these submissions):
Introduction
1)Before this Honourable Court is an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal, (“Tribunal Decision” and “Tribunal” respectively ) made on 07 April 2017 to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) made on 03 February 2015 to refuse the Applicant a Protection Visa under s.65 of the Migration Act 1958 (“the Visa”).
Background
2)The background to the Judicial Review Application is as follows:
3)The Applicant lodged an application for the grant of a Protection (Class XA) Visa on 05 June 2013.
4)The delegate refused the Visa because the delegate was not satisfied that the Applicant satisfied subsection 36(2) of the Migration Act 1958 and as such the Applicant was not a non-citizen in Australia to whom Australia had protection obligation or a member of the same family unit as such a person. (at CB 159)
5)The delegate's decisions were affirmed by the Tribunal.
Relevant legislation
6)Migration Act 1958
Relevant Cases
7)Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 AL.JR 992
8)Minister for Immigration and Citizenship v Li [20131 HCA 18.
Issue for consideration before the Tribunal
9)WHETHER either or both of the Applicants have a well founded fear of persecution in Peru for one or more of the five reasons set out in the Refugees Convention;
10)and if not,
11)WHETHER there are substantial grounds for believing that, as a necessary and foreseeable consequences of them being removed from Australia to Peru there is a real risk that they will suffer significant harm.
Grounds of The Judicial Review Application
GROUND 1. The Tribunal's decision is effected by Jurisdictional error.
12)In paragraphs 19 & 36, the Tribunal’s questions to the Applicant as to why he did not consider leaving his area and going to Lima instead of leaving the country amounts to taking into account of an irrelevant consideration and thus constitutes a jurisdictional error. The fact that the Applicant did not consider going to Lima instead of coming to Australia has no relevance to the question and the claim of the Applicant that he had a well founded fear of persecution for the convention reason. Even if he had moved to another part of his country like Lima, the Applicant would still fear persecution.
13)In paragraph 20, the Tribunal placed reliance on some independent information while finding that the MRTA was not particularly active in the Applicant's area and thus did not accept the Applicant's claim that he was being rethreatened by that organisation. However, the Tribunal failed to provide that information to the Applicant and allow him an opportunity to respond and comment on the contents relied upon by the Tribunal. This is clear breach of the principle of natural justice and thus amounts to a jurisdictional error amenable to the review jurisdiction of this honourable Court.
14)Al so the finding in paragraph 20 that the MRTA was not particularly active in Applicant's area is also without evidence as there was no such evidence provided to the Applicant for rebuttal.
15)At paragraph 21, the Tribunal found that since the Applicant's rival political party had won the last three elections therefore the Applicant has no basis to have fear of threat by his political rivals. Again this is an irrelevant consideration, as the wining of the elections by the Applicant's rival political party is not proof that the Applicant has no basis of fear of persecution. This taking of an irrelevant consideration constitutes a jurisdictional error.
16)In paragraph 23 & 35, the Tribunal questioned the Applicant's claim on the basis that he left his daughter behind and that the wife of the Applicant went back to Peru. The fact that he left his daughter behind and that his wife returned to Peru were irrelevant to the question as to whet her or not the Applicant had a well founded fear of persecution. These were irrelevant consideration taken into account by the Tribunal and thus was a jurisdictional error for the purposes of this application.
17)In paragraph 24, the Tribunal again asked irrelevant question as to why he returned to Peru in October 2011. This question had no relevance to the determination as to whether the Applicant had a well founded fear of persecution.
18)In paragraph 26, the Tribunal's reasoning is self contradictory when it put to the Applicant that even if it were to accept that there may have been some political motivation for what happened with his land it still may not accept that he would be at risk of harm now. This suffers from unreasonableness and amounts to a jurisdictional error.
19)Like paragraph 23, the Tribunal again took irrelevant considerations into account at paragraph 27 while relying on the fact that the parents and the daughter of the Applicant remained in Peru. Same was the inquiry of the Tribunal in paragraphs 34, about the return of Applicant's wife to Peru. It is submitted that this has no relevance to the claim of the Applicant as to whether or not he has a fear of persecution and harm.
20)The Tribunal at paragraph 30, took the delay in lodging the application into account to find the claim of the Applicant as not genuine. The delay in lodging application is an irrelevant consideration for the purpose of assessment of tear of persecution.
21)In paragraph 32, the Tribunal asked the wife of the Applicant an irrelevant question as to the purpose of their previous visit to Australia. This is irrelevant because the previous visit to Australia for any reason is not determinative of the issue as to whether or not the Applicant fears persecution.
22) The Tribunal failed to exercise its jurisdiction by giving no weight to the information favourable to the Applicant on the basis that the “allegations were made by an anonymous source”.
23)The Tribunal had no evidence to label the claim of the Applicant as “exaggerated”.
GROUND 2. The Tribunal decision suffer from error of law.
24)The Applicant reiterates his submission under Ground 1 above.
GROUND 3. The Applicant abandons the issue of due weight taken in this ground.
GROUND 4. There were number of relevant facts/considerations which the Tribunal ignored and did not take into account while reaching the decision instead minor inconsistencies were given weight and raised questions on the Applicant's credibility.
GROUND 5. In paragraph 12 the Applicant explained about his addresses, education, employment history, family composition, properties owned by his partner and her family and the political work he attended while he was in Peru. The Tribunal questioned about the distance between Soritor and Lima and how he regularly travelled regularly between these two places. The Applicant clearly explained to the Tribunal that he lived at the first address in Soritor where he grew up and moved to another address in Soritor with her partner and daughter and lived in Lima when he was studying and working. Also he explained that he regularly travelled back and forth between Soritor and Lima as he was actively engaged in political activities on behalf of his party. it was a 45 minute flight between these two places or 22 hours by ca. the Applicant told the Tribunal that he made regular trips. Sometimes several times a month because of the political engagements. The distance between Soritor and Lima is irrelevant. instead the Tribunal should have looked into the fact that the Applicants had serious threat to their lives due to the first Applicant's active involvement in politics against the current administration in Peru.
GROUND 6. The Applicant does not press this Ground in view of submissions made under Ground 1 .
GROUND 7. The Tribunal failed to have regard to the threat incidents mentioned by the Applicant in paragraphs 14 to l 8.
GROUND 8. The Applicant relies on the submissions made in GROUND 1 (a) above.
GROUND 9. The Applicant relies on the submissions made in GROUND 1 (a) (e) & U) above.
GROUND 10. Although, in paragraphs 47 & 48 the Tribunal accepted the first Applicant's political involvement but gave no consideration towards its assessment of the Applicant's claim of fear of persecution.
GROUND 11. In paragraphs 49 to 53, the Tribunal raised doubts on the credibility of the Applicant. The Tribunal was not satisfied with the claims o the Applicant regarding threats to his life and without any evidence in hands contrary to the Applicant's claim the Tribunal refused to take account of these claims which is against the ruling of the High Court in SGLB.
GROUND 12. From paragraphs 56 to 59, the Tribunal in an unreasonable manner, did not accept the fact that the first Applicant had political rivalry and political aspirations or commitments and without any evidence termed the applicant's claims as exaggerations. This finding of the Tribunal is against the material available on the file and amounts to unreasonableness in terms of Li.
GROUND 13. Again in paragraphs 60 to 69 the Tribunal unreasonably termed the land disputes between the Applicant and his rival political group as un genuine.
GROUND 14, 15, 16. 17 & 18. Applicant relies on the submissions made above in relation to these Grounds.
In view of the above the Applicant submits that the Tribunal's decision suffers from Jurisdictional errors and therefore its decision may be quashed and it be directed to decide the case according to law.
In response to a query from the Curt regarding relevant authority to support submissions made by him during the hearing (and otherwise), the solicitor on the record filed further Submissions on 31st August 2017. Unfortunately, no authority, from any Court, was cited in these additional submissions, which purported to address (a) the scope of the Court’s power under s.50 of the Federal Circuit Court of Australia Act 1999, and (b) the asserted lack of distinction between pleadings, particulars and submissions. Respectfully, certainly in relation to the issue regarding pleadings and particulars, the answer for the lack of such authority to support the lawyer’s claims made in Court, is simply that there are no authorities to support his assertions. Indeed, the wealth of authority is to the contrary to that which was argued by the lawyer, such authority to which I have already referred in Banque Commerciale earlier in these reasons.
Submissions on behalf of the Respondent
The First Respondent’s Outline of Submissions, filed 21st August 2017, were as follows (footnotes omitted):
1) There is before the Court an application under s.476(1) of the Migration Act 1958 (Cth) (Act) for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), affirming a decision of a Delegate of the Minister (Delegate) to refuse the applicants a Protection (Class XA) visa (protection visa) under s.65 of the Act.
2) These submissions are filed by the Minister pursuant to the orders of the Court made on 29 May 2017. They respond to the applicants’ application for review filed on 1 May 2017 (Application), and written outline of submissions which was filed on 16 August 2017. Those submissions were filed two days late and were not served on the Minister.
3) The Minister submits that the grounds pleaded by the applicants do not establish jurisdictional error. For the reasons that follow, the application ought to be dismissed with costs.
Background
4) The applicants are in a de facto relationship together and are both citizens of the Republic of Peru (Peru). They first arrived in Australia together in September 2009. The First Applicant returned to Peru in October 2011 but returned again to Australia in November 2011. The Second Applicant also returned to Peru in August 2012 but has since returned to Australia. Their daughter remains in Peru.
5) On 5 June 2013, the First Applicant applied for a protection visa. The Second Applicant also applied for protection as a dependent member of the First Applicant's family unit. The Delegate refused their applications on 3 February 2015.
6) On 7 April 2017, the Tribunal affirmed the Delegate's decision.
7) On 1 May 2017, the applicants commenced the current proceedings.
Applicant’s claims for protection
8) The First Applicant’s (hereafter, Applicant) claims in relation to his protection visa application were set out in:
a) his protection visa application of 4 June 2013;
b) further submissions of 16 October 2013, discussed at the interview with the Delegate;
c) a submission of 21 July 2016 provided to the Tribunal;
d) the applicants' oral submissions to the Tribunal; and
e) the applicants' further post-hearing submissions of 19 August 2016.
9) The Applicant claims to fear harm from political opponents in the Nueva Amazonia party who are in power in his home town of Soritor, Peru. In particular, the Applicant claims that:
a) his political opponents threatened him due to his political activities in the past and since he has been in Australia his lands have been wrongfully and illegally seized and given over to the local community to buy votes for the incumbent mayor;
b) he has received several threatening phone calls and on 13 July 2009 he was stopped and threatened on the street by an unknown group of men, whom he believes are associated with the “rondas campesinas” (also known as the MRTA);
c) the illegal seizure of his lands by the Mayor of Soritor (who is affiliated with the Nueva Amazonia Party) was an action targeted at him because of his political ambitions in his home town; and
d) he is fearful of returning to Peru because he still has political aspirations and he is fearful his political opponents will harm him or his family if he returns and threatens their power.
Tribunal’s findings
10) The Tribunal acknowledged that, for the most part, the Applicant had maintained the substance of his claims throughout his application. However, it considered that the Applicant had exaggerated and embellished his claims relating to the level of his political activity and his political aspirations to strengthen his protection claims in his evidence to the Tribunal. It also considered that the Applicant's claims were not supported by evidence. In light of these issues, the Tribunal was not satisfied on the evidence and material before it that there was a real chance the Applicant would face serious harm for the reasons claimed by the Applicant, or for any other reason, if he were returned to Peru.
11) The Tribunal reasoned as follows:
a) political affiliation: the Tribunal accepted that the Applicant is and was a supporter of the PAS (Soritorino Agricultural Village) political movement in his hometown, and that he was involved in municipal mayoral election campaigns on behalf of the party;
b) threats in 2009: the Tribunal doubted the veracity of the Applicant's claims that because of his political work in the election campaigns he made enemies with his political opponents (specifically, members of the Nueva Amazonia Party) and as a result he received threatening phone calls and in July 2009 he was stopped on the road by a group of armed men (the “rondas campesinas”) and told to leave politics and the country. This followed from a number of adverse credibility findings and observations, namely:
i) the Applicant failed to mention in his written application that the individuals who accosted him were armed, but later added this detail in his oral evidence to the Delegate and the Tribunal. The Tribunal considered that this discrepancy indicated that he was embellishing his claims;
ii) threatened him were “rondas campesinas” and were associated with the MRTA. Further, independent country information indicated that the MRTA are inactive; and
iii) it was implausible that following the alleged incident in July 2009, the Applicant did not report the matter to the police, but rather fled to Lima and from there to Australia, leaving his daughter behind in the place where he allegedly faced a threat.
In light of the above, the Tribunal did not accept that the Applicant fled Soritor and Peru for this reason or that he faces a real chance or real risk of harm upon return to Peru in the reasonably foreseeable future on this basis;
c) threats received by his mother: the Tribunal did not accept that the Applicant's mother had continuously received threats since 2009 directed at the Applicant as no details or evidence was given about these threats;
d) political aspirations: the Tribunal did not accept that the Applicant has political aspirations in his region and intended to pursue these ambitions if he returned to Peru in the future and is at risk of harm in the future for this reason. The Tribunal observed that no evidence of his ongoing political ambitions had been provided. Further, his conduct in leaving Soritor and Peru in 2009 was not consistent with his claimed political aspirations or commitment. Accordingly, the Tribunal found that the Applicant had exaggerated his political position and significance to strengthen his protection claims. It did not accept that he was the most active person in the party in 2009 as claimed nor that he was or is an aspiring political leader in the region;
e) land issues: the Tribunal accepted that the Applicant is a landowner in Soritor and certain portions of his lands were the subject of invasions and occupations in July 2010 and again in January 2012, and that he has utilised a legal process for resolution of his dispute with the Municipality of Soritor. The Tribunal also accepted that an attempted eviction of residents on lands contested by the Applicant's family took place in August 2012. However, in the Tribunal's view, although the evidence of the incident supported the Applicant's claims that he has an ongoing dispute with his Municipality over ownership of land (which the Tribunal had already accepted), it did not support the Applicant's claim that he or his family are at risk of future harm from the disputed land issue; and
f) land usurpation was politically targeted: the Tribunal was not satisfied that the evidence before it supported the Applicant's claim that his lands were wrongfully usurped in order to affect his political standing and power in the community or because of his political opinion, past political activities or future political ambitions.
12) In light of the above findings, the Tribunal was not satisfied that the Applicant would face a real chance of persecution for the purposes of the Refugees Convention, either now or in the reasonably foreseeable future, on the basis of his political opinions, affiliations or aspirations or as a ‘Fujiorismo’ landowner or as a landowner who claims his lands were expropriated by local authorities, or for any other reason, if returned to Peru. For the above reasons, the Tribunal was not satisfied that either of the applicants were persons in respect of whom Australia had protection obligations under s.36(2)(a) of the Act.
13) For the same reasons, the Tribunal was also not satisfied that the Applicant would face a real risk of suffering significant harm for the purposes of the complementary protection crite1ion, either now or in the reasonably foreseeable future, if he returned to Peru. As a result, it was not satisfied that the applicants were persons in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act.
Application for review and procedural issues
14) The grounds of review advanced by the applicants in their Application are lengthy, confusing and poorly drafted. Although 19 ‘grounds’ are identified, several of them do not allege error, but rather provide submissions that recount (or critique) certain parts of the Tribunal's decision record, or otherwise seek to preserve the right to add, amend or withdraw the existing grounds. Matters are further complicated by the applicants' written outline of submissions.
15) There, several grounds of review appear to have been imported as particulars under an overarching ground of review alleging jurisdictional error (Ground 1). Further, the applicants purport to rely on submissions that are entirely unrelated to the grounds of review identified in the Application (see, for example, Grounds 14 to 18). In addition, some grounds appear to have been abandoned (for example, Ground 3 and Ground 6).
16) Of more concern, the Minister observes that the applicants' submissions appear to raise several new grounds of review that were not advanced in the Application. In particular, the submissions made under Grounds 1 (b), (c), (d), (f), (g), (h), (i) and (1) do not appear to correspond to, or properly particularise, any of the grounds of review advanced in the Application. They are effectively fresh grounds of review. Accordingly, it is submitted that the applicants require leave to rely on these proposed grounds in this Court.
17) The Minister submits that leave should not be granted to allow the applicants to rely on the proposed grounds identified above as they have no merit, or reasonable prospects of success, such that the interests of justice would call for leave to be granted. Specifically, the Minister submits that none of the proposed grounds have reasonable prospects of success for the following reasons:
a) Ground l (b) and (c): these procedural fairness complaints are nonsensical, self-defeating and make no mention of what procedural fairness requirements set out in Division 4, Part 7 of the Act are said to have been breached. The Tribunal's decision record (DR) at [20] makes it expressly clear that the Tribunal put the substance of the country information it held about the MRTA to the Applicant at the hearing and provided the Applicant with an opportunity to respond to that information - which he did. In any event, and as a counterfactual to the foregoing, in accordance with s.424A(3)(a) of the Act the Tribunal was not required to give clear particulars of any information relevant to the review “that is not specifically about the applicant” and “is just about a class of persons of which the applicant is a member”. In the Minister's submission, it is uncontroversial that the independent information about the MRTA referred to in the DR at [20] falls squarely within this exemption.
b) Grounds l(d), (f), (h), and (i): these proposed grounds all allege that the Tribunal took into account a number of irrelevant considerations at paragraphs 21, 23, 24, 27, and 32 of the Tribunal's DR. To the contrary, the Minister submits that the factors and evidence considered by the Tribunal at these paragraphs were directly relevant to its decision and its conclusions were reasonable. The relevant threshold of jurisdictional error for taking into account an irrelevant consideration is that it must have caused the decision reached by the Tribunal to be “manifestly unreasonable.” Peko-Wallsend Ltd at 41; Abebe v Commonwealth (1999) 197 CLR 510 at [40]. It cannot be said that the decision of the Tribunal and its line of questioning recorded at these paragraphs was unreasonable, especially in light of the numerous evidentiary problems it had identified. In the Minister's submission, each of these grounds simply constitutes an impermissible attempt to agitate the merits of the Tribunal's decision. They must fail.
c) Ground 1(k): this complaint is nonsensical. Contrary to the applicants' assertions, the anonymous 'dob-in' letter given to the Tribunal by the Department in November 2016, the substantive content of which was provided to the applicants for their response (which they did on 3 March 2017), was not “favourable to the Applicant.” Rather, it was clearly unfavourable, as it suggested that the applicants' claims were fabricated. In any event, the Tribunal, quite properly in the Minister's submission, decided to give the 'dob in' letter no weight for the reasons it gave in the DR at [43].
d) Ground 1(1): the focus of this “no evidence” complaint is unclear to the Minister. To the extent that it rehashes, in shorthand form, the complaints raised at Grounds 11 and 12, it is dealt with at paragraphs 26 to 29 below.
Consideration
Ground 2
17) Ground 2 baldly asserts that the Tribunal's decision suffered from error of law. In the absence of any particulars, that assertion is not made out.
Ground 4
18) Ground 4 alleges that a number of relevant facts and considerations were ignored by the Tribunal. The ground is not particularised. In the circumstances, it should not be left to the Court and the Minister to guess what these “relevant facts/considerations” might be. Accordingly, this ground is not made out.
Ground 5
19) Ground 5 recites the responses given by the Applicant at the hearing to the Tribunal's line of questioning regarding the Applicant's history of residence in, and travel between, Soritor and Lima: DR at [12]. It then alleges: “The distance between Soritor and Lima and the way he travelled between these two places was irrelevant. Instead the Tribunal should have looked into the fact that the Applicants have serious threats to their lives due to the first applicant’s active involvement in politics against the current administration in Peru”.
20) This complaint is misconceived for two reasons. First, the Tribunal expressly considered the substance of the Applicant's claims as to the level of his political involvement in Peru. For the reasons it gave at DR [56] to [59], the Tribunal found those claims to be exaggerated and it was not satisfied that the Applicant (or his family) would face any harm by reason of the Applicant’s (limited) political activities in Peru. Second, and in relation to the complaint that the Applicant's travel between Soritor and Lima was 'irrelevant', the Respondent notes that the Tribunal did not make any findings in relation to this issue. It, did, however, find it difficult to accept that if the Applicant genuinely feared harm after allegedly facing threats in Soritor in 2009, he would stay in Lima for a month and leave his daughter behind in Soritor before then departing to Australia (DR [50]-[52]). Not only was it reasonable for the Tribunal to consider this matter in finding that the Applicant’s claims were not made out, it is compelling.
Ground 7
21) Ground 7 is baseless. It complains that the Tribunal failed to consider the Applicant's 'threat incident' claim. This claim was summarised at DR [14]-[18] and expressly dealt with by the Tribunal under the sub-heading "Threats against him in 2009" at DR [49]-[53].
Ground 8 (or Ground l(a))
22) These grounds complain that the Tribunal’s line of questioning to the Applicant at the hearing as to why he did not consider leaving Soritor and move to Lima amounts to an “irrelevant consideration”. To the contrary, the Minister submits that this questioning was directly relevant to the issues before the Tribunal in circumstances where the Applicant’s alleged political difficulties and the alleged ‘threat incident’ in 2009 appeared to be localised to Soritor alone. It was clearly a question that was potentially relevant to discerning the nature and extent of the Applicant’s claimed fear at issue. In any event, the Tribunal did not ultimately make any adverse findings in relation to this issue. It is submitted that this ground is merely an attempt to impermissibly agitate the merits of the Tribunal’s decision. It is without foundation.
Ground 9 (or Ground l(a). (e) and (j))
23) These grounds essentially take issue with the Tribunal's line of questioning about why, if the applicants genuinely feared harm in Peru, they would leave their daughter behind in Soritor, and why the Second Applicant would return to Peru in 2011. These complaints cannot be accepted.
24) Contrary to the applicants' assertions, the fact that the Second Applicant returned to Peru and that their daughter has remained in Peru since 2009 despite allegedly facing harm in that country was directly relevant to the matters at issue. The Tribunal was perfectly entitled to find that these factual matters were inconsistent with the applicants having a genuine fear of harm: see, relevantly, DR [50)-[51], [54) and [70)-[71]. In the Minister's submission, these grounds amount to little more than an attempt to agitate the merits of the Tribunal's findings, which this Court is not permitted to review: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272. These grounds must therefore fail.
Ground 10
25) Ground 10 is misconceived. The Tribunal gave express consideration to the nature of the Applicant's political activities in the DR at [47)-[48). However, in light of the lack of evidence that the Applicant would be at risk of harm from Nueva Amazonia opponents, and considering the Applicant's willingness to exaggerate his claimed political aspirations or involvement, the Tribunal did not accept that the Applicant would face harm from his political adversaries for reasons of his political associations and activities, for the reasons it gave in the DR at [56] [59). The Tribunal identified and considered in detail the Applicant's claims as set out in his statements and oral submissions. There was no failure on the part of the Tribunal to consider the Applicant's political involvement in the context of his claimed fear of persecution.
Grounds 11 and 12
26) By Grounds 11 and 12, the applicants claim that the Tribunal erred in not accepting the Applicant's claims in relation to the threats made against him in 2009 and in relation to his political aspirations and political rivalry because there was no “evidence in hands (sic) contrary to the applicants’ claim”. The decisions of the High Court in MIMA v SGLB [2004) HCA 32 (SGLB) and Minister for Immigration v Li [2013) HCA 18 are cited in support.
27) Both complaints demonstrate a lack of appreciation of the Tribunal's functions. The Tribunal is not bound to accept, uncritically, any and all of the claims advanced by an applicant: Randhawa v Rajalingam (1999) 93 FCR 220 at 451; MIEA v Guo [1997) HCA 22. Further, the Tribunal is not required to have rebutting evidence before it in order to find that a factual assertion has not been made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347. Rather, it was for the Applicant to provide corroborating evidence and material that would substantiate the credibility and substance of his claims for protection. In the absence of such material, it was entirely open for the Tribunal to find that the Applicant's claims had been exaggerated and were not supported by evidence and hence were not made out.
28) The applicant's reliance on MIMIA v SGLB [2004] HCA 32; (2004) 207 ALR 12 is similarly misguided. That decision stands for the proposition that an administrative decision made on the basis of no evidence is invalid (at [39]-[41]). However, to succeed on such a ground, an applicant needs to establish that there was no evidence at all upon which the impugned factual finding could have been based: SZHZF v MIAC [2007] FCA 1173; VWBF v MIMIA (2006) 154 FCR 302.
29) In the present matter, the Tribunal's dismissal of the Applicant's claims to have received threats in 2009 and his claims about the extent of his political aspirations were not positive findings of fact for which there was no evidence. Rather, they constituted consideration and rejection of the Applicant's claim on the basis of the numerous credibility and evidentiary concerns it identified with the Applicant's evidence in the DR at [49]-[52] and again at DR [56]-[59]. In the Minister's submission, these credibility findings and evidentiary concerns were reasonably open to the Tribunal to make on the material and logically probative of the issues before it: Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547. Accordingly, it cannot be said that the Tribunal's conclusions that the Applicant's claims relating to the threats made against him and his political aspirations were manufactured and exaggerated by the Applicant in an attempt to bolster his application, were somehow “illogical” or “irrational” or “lacking justification.” see MIAC v SZMDS & Anor (2010) 240 CLR 611 at [130]; and Minister for Immigration and Citizenship v Li [2013] HCA 18 at [68], [74] and [76].
Ground 13
30) The “unreasonableness” submission made under Ground 13 is wrong. At no point did the Tribunal describe the Applicant's claims in relation to the land dispute as “ungenuine”. This alone is dispositive of the ground of review. Further, and contrary to the Applicant's submission, the Tribunal in fact accepted that the Applicant had an ongoing dispute with his local municipality over land ownership: DR [67]. However, and for the reasons summarised at paragraphs 31 below, the Tribunal was not satisfied that the usurpation of the Applicant's lands occurred by reason of the Applicant's political opinion, past political activities or future political ambitions: DR [68]. This finding was entirely reasonable on the basis of the evidence and material before the Tribunal and cannot be impugned.
Grounds 15, 16 and 17
31) To the extent that Grounds 16 and 17 baldly assert that the Tribunal “committed an error of law” because it did not accept the Applicant's claim that the usurpation of his lands was politically targeted, it is submitted that the Applicant merely trespasses upon the merits of the Tribunal's decision. As submitted above, this Court does not have jurisdiction to entertain merits review.
32) The Tribunal dealt with the Applicant's land usurpation claims thoroughly as follows:
a) although it accepted that the Applicant did have a legally contested land dispute in his municipality, there was no evidence before the Tribunal to link the usurpation of the Applicant's land with the Applicant's political opinion, past political activities or future political ambitions;
b) it observed that the Applicant had not been prevented from selling his landholdings, notwithstanding the land dispute or his political differences with the presiding administration
c) it also took into consideration that the Applicant's mother, sisters and daughter have remained living in Soritor continuously since his departure in 2009 and the Applicant had made no attempt to remove his daughter to Australia (or anywhere else) despite return trips to Peru by himself in 2011 and with his partner in 2012;
d) recent political developments at the national government level in Peru ran counter to the Applicant's claim that he remained at risk of harm from 'leftist' political opponents in Soritor; and
e) the usurpation of his lands while absent from the country, without more, does not amount to serious harm within the meaning contemplated by s91R of the Act.
33) In relation to the last finding above, the Minister submits that there was no error in the Tribunal's conclusion that the usurpation of the Applicant's lands did not amount to 'serious harm' within the meaning contemplated by s.91R of the Act. In circumstances where the Applicant continued to have ownership of a substantial number of land lots, and had managed, even when outside of the country, to arrange for them to be sold through a real estate broker, it was not only open, but uncontroversial, for the Tribunal to find that the land usurpations had not caused him significant economic hardship such that his “capacity to subsist” was threatened and that he was “prevented from earning a livelihood”.
34) Finally, to the extent that Ground 15 complains that the Tribunal failed to consider the documentary evidence provided by the applicants in relation the land usurpation issue, the Minister submits that a complete answer to this allegation is found in the DR at [65]. In the absence of any further particulars about the type of “documentary evidence” that the Tribunal is said to have failed to consider, this ground is without substance.
Ground 18
35) By Ground 18, the applicants complain that the Tribunal failed to give “proper weight” to the evidence that the applicants will be harmed if they were to return to Peru. As stated above, there is nothing in the Tribunal’s decision record to suggest that the Applicant’s claims and evidence were not considered or given improper weight. The Tribunal carefully itemised in full the applicants’ claims (at DR [6]), and the evidence provided to the Tribunal (at DR [10] [41]). In particular, it referred specifically to the claim of the applicants that they would be harmed if returned to Peru (at DR [6] and [45]). However, for the reasons it gave, the Tribunal found that the Applicant had embellished his claims and did not find them to be supported by evidence. It is trite law that the weighing of various pieces of evidence is a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 25 at 41; and MIC v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [33].
36) The Minister submits that the complaint about the weight to be given to evidence amounts to little more than the applicants' disagreement with the evidence relied upon by the Tribunal and the conclusion reached. This ground must also fail.
Other matters
37) The First Respondent notes that the Tribunal was notified by the Department that s 438(1)(b) of the Act applies to certain information on departmental file CLF2013/308372. The substance of the information the subject of the notification, including that it was potentially unfavourable to the applicants, was provided by the Tribunal to the applicants by way of an invitation to comment notification on 17 February 2017. The applicants were invited to make submissions or comment on the application of s 438(1)(b) to the information, and whether the Tribunal should exercise its discretion under s 438(3)(b) to disclose any matter contained in the information to the applicants. The applicants’ representatives provided a response to this invitation on 2 March 2017. Ultimately, the Tribunal gave no weight to the material covered by the certificate. In such circumstances, it is submitted that no jurisdictional error of the kind identified in MZAFZ v MIBP [2016] FCA 1081 and MIBP v Singh [2016] FCAFC 183 arises in relation to this case.
Conclusion
38) For the reasons set out above, it is submitted that the Application does not make out any error in the Tribunal's decision. It should therefore be dismissed with costs pursuant to rule 44.15(1) and Schedule 1, Part 3, Division 1, Item 3 of the Federal Circuit Court Rules 2001 (Cth).
Consideration and Disposition
Because the Applicants provided little or apposite points of reference, I note the following basal principles applicable to the current matter.
First, absent leave to amend the grounds of review, an Applicant is bound by the grounds of review set out in the Originating Application.[9] Here, no leave was sought by the Applicants in relation to the matters set out in the Applicants’ Submissions, filed 16th August 2017, at pars.1(b), (c), (d), (f), (g), (h), (i) and (l). The Minister is entitled to deal only with the grounds of review set out in the primary Application. Given that no leave was sought in relation to the paragraphs just noted, and accordingly no leave has been or is granted, those paragraphs will not be considered. In addition, the Court accepts in particular pars.15 and 16 of the Minister’s submissions in this regard.
[9] Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287 (Mason CJ and Gaudron J).
In a similar vein, from the primary Application, in my view, grounds 4, 12, 13, 14, 16 and 17 all suffer from the basic flaw of lack of relevant particulars. Neither the Minister, nor the Court, should have to assume what is being alleged and thereby risk assuming incorrectly what it is the Applicants complain the Tribunal has or has not correctly done in the process and legal analysis of the claims brought before it. The same flaw applies to the following legal principle regarding improper “merits review” of the Tribunal’s decision.
Secondly, it has long been a principle of administrative law that there is a relatively clear distinction, which is to be properly observed, between the merits of an administrative decision, on the one hand, and its legality, on the other. Only the latter may be the subject of review by a Court; so-called “merits review” is impermissible. [10]
[10] Among many places, see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (Brennan J); and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [23] – [29].
Thirdly, regarding the subject of credibility (a matter raised by the Applicants in grounds 4, 11, 12 and 15), which is often linked to issues of the “weight” accorded to evidence by the Tribunal, there is similarly a significant body of jurisprudence, none of which unfortunately is referred to by the Applicants (see also grounds 5 and 18).
And such matters are also very often related to claims of “illogicality” and or “unreasonableness” in relation to the Tribunal either rejecting certain evidence, and or reaching a conclusion about the evidence (or lack of it). Without this always being spelt out in the Grounds of Review, such a claim or assertion seemed to be at least implicit in those Grounds of Review which challenge the Tribunal’s decision in not relevantly taking into “proper account” certain information in reaching its decision (e.g. see Grounds 4, 5, 7, 11, 12, and 13). In this regard it is sufficient to note the signal decisions of the High Court in Minister for Immigration and Citizenship v SZMDS and Minister for Immigration and Citizenship v Li, and by the Full Court of the Federal Court in SZOOR v Minister for Immigration and Citizenship, Minister for Immigration and Border Protection v Singh, and most recently, the Full Court decision (Kenny, Kerr and Perry JJ) in DAO16 v Minister for Immigration and Border Protection.[11]
[11] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (Crennan and Bell JJ) (“SZMDS”); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (“Li”); SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at [84] – [85]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (“Singh”); DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (“DAO16”).
From the decisions cited, for the purposes of the disposition of the current Application for Review, it is sufficient to note the following from the Full Court’s decision in Singh, at [44] and [47] (Allsop CJ, Robertson and Mortimer JJ) (emphasis added):
[44] In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]- [28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105] …
[47] … the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court…
In DAO16 the Full Court provided the following [further] summary of principle, which (in my view) is directly relevant to the current claims by the Applicants, such as they may be discerned from the very poorly drawn and articulated Grounds of Review. In DAO16, the Full Court set out “relevant principles: legal unreasonableness”, thus (at [30]):
[30] The relevant principles can be summarised as follows.
(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
[135] ... A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:[56] An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny...
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
Against this summary of basal principle, by reference to the current Grounds of Review, in addition to what I have already said, I make the following comments and formal findings.
First, by way of general observation, so many of the Grounds of Review fall directly into the category of “emphatic disagreement” with the Tribunal’s decision, as noted in SZMDS and CQG15, as cited by the Full Court in DAO16 at [30]. And in accordance with authority, “emphatic disagreement”, without more, is insufficient to warrant this Court interfering with the Tribunal’s decision. Absent clear and cogent grounds for such intervention, and there are no such Grounds on display in the current matter, the Court is not permitted to intervene. Moreover, the detail set out in the Tribunal’s reasons in relation to each of its findings, including findings regarding the credibility of the Applicants (see the comments in ARG15 and SZRKT noted above in DAO16), were (in my view) plainly open to it on the evidence.
Grounds 1 and 2 are mere assertions and or conclusions. They are not made out. As earlier noted, Ground 3 was abandoned by the Applicants.
Ground 4 asserts the alleged failure of the Tribunal to consider “the Applicant’s involvement in politics “against the current administration in Peru.” It implicitly also conjectures over the Tribunal’s “proper or due consideration” of the First Applicant’s reasons for travel from Soritor. This Ground is not made out. In addition to the Tribunal outlining at length the Applicant’s evidence (at pars.10 – 41), in particular, at pars.47 – 48, and again at pars.56 – 59, the Tribunal discussed specifically the First Applicant’s “political affiliation” and his “political aspirations”, and at pars.49-53 it discussed the alleged threats made against him. In such circumstances, it is untenable to make the claim as set out in this (and other) Ground(s) of Review. The Tribunal plainly considered the Applicants’ claims.
The same comments apply equally to the unparticularised claims in Grounds 6 – 10, which similarly have no foundation either as to lack of reasons or lack of relevant consideration.
Grounds 11 and 12 make general references to the High Court decisions in SGLB and in Li. The claims made in these Grounds are likewise so generalised, both in relation to (a) the alleged deficiencies in the Tribunal’s reasoning and or its processes, and (b) the two High Court judgments, as to be unintelligible. Neither the Court nor the Minister should be required either to guess what specific legal claims are made in relation to the Tribunal’s decision and or its processes, and equally so what specific point of principle is sought to be relied upon from any authority cited. There is neither paragraph number to any judgment nor statement of proper principle. These Grounds must be rejected.
Grounds 13 – 15 refer to generalised claims regarding the First Applicant’s land-holding in Peru. Ground 13 is so generalised as to be meaningless, while Ground 14 has no relevant particulars or even a claim against the Tribunal’s decision. Ground 15 asserted that the Tribunal made no relevant findings “as to credibility of the evidence despite having documentary evidence in relation to the dispute.”
In fact, at pars.65 – 75, the Tribunal considered the evidence before it from the Applicants and concluded (as noted earlier in these reasons) that the claims of politically motivated usurpation of land were not made out. Among its reasons was the fact that the First Applicant still held land in Peru and had been able, without apparent difficulty, to retain a real estate agent to sell off some of his property. In the circumstances, the Tribunal found that the claims of the Applicant(s) in relation to risk regarding his (or their) land-holding were not made out. Grounds 13 – 15 must be rejected. They have no factual or legal foundation.
Grounds 16 – 18 contend that the First Applicant (and by inference his partner) risk persecution (or harm) in Peru on the basis of his political involvement and in light of the current and ongoing political situation in Peru. Contrary to the Applicants claims, the Tribunal properly and clearly noted the political climate and political parties in Peru and concluded that the Applicants did not relevantly face any threat of persecution or harm should they return to Peru. On the evidence before it, in my view, the conclusions made by the Tribunal were plainly open to it on the evidence before it. There is no basis, procedurally or otherwise, in accordance with the Full Court’s comments in Singh, for this Court to interfere with the Tribunal’s decision.
Otherwise, for completeness, formally I accept and adopt the submissions of the Minister.
Accordingly, the Application must be dismissed with an Order for costs in the Minister’s favour in accordance with Schedule 1, Part 3, Division 1 of this Court’s Rules.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 29 March 2018
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