BXT15 v Minister for Immigration

[2016] FCCA 2553

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXT15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2553

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – second application limited to complementary protection – applicants claiming a fear of harm in Fiji – Tribunal finding no real risk of significant harm – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36,46, 48A, 55, 65, 377

Cases cited:
Minister for Immigration v SZVCH [2016] FCAFC 127
Minister of State for Immigration v Teoh [1995] HCA 20
Re Minster for Immigration: Ex parte LAM [2003] HCA 6
SZGIZ v Minister for Immigration (2013) 212 FCR 235
SZVCH v The Minister for Immigration [2015] FCCA 2950

First Applicant: BXT15

Second Applicant: BXU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2583 of 2015

Judgment of: Judge Driver

Hearing date: 4 October 2016

Delivered at: Sydney

Delivered on: 4 October 2016

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Ms S Burnett of Clayton Utz

ORDERS

1. The application filed 21 September 2015 and as amended on 10 May 2016 is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2583 of 2015

BXT15

First Applicant

BXU15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants are a husband and wife originally from Fiji.  They are both elderly and have lived in this country since the late 1990s.  Unfortunately for much of that time, their migration status has been irregular. They have made several applications for visas to remain in Australia and their current status is that they hold bridging visas for the purposes of these legal proceedings. 

2. There are what appear to me to be strong humanitarian considerations in this case which have been dealt with at some length by the applicants in their written material and also in their oral addresses to the Court at various stages.  Those are, however, not matters on which the Court can adjudicate. 

3. The matter before the Court is their application for judicial review of a decision of the Administrative Appeals Tribunal (AAT), formerly the Refugee Review Tribunal, made on 31 July 2015.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. 

4. Background facts in relation to the applicants’ claims and the decision of the Tribunal on them are set out in the Minister’s initial outline of legal submissions filed on 3 May 2016.   

Background

1. The applicants are citizens of Fiji. The first-named applicant (applicant) arrived in Australia on 15 February 1998 on a subclass TR676 (tourist) visa (tourist visa) which remained in effect until 15 May 1998.  On 15 May 1998, the applicant applied for, and was granted on 27 July 1998, a subclass UB685 (medical treatment - long stay) visa (medical visa) which was valid until 11 December 1998.  On 11 December 1998, the applicant applied for, and was granted a further Medical visa which was valid until 15 February 1999.  On 15 February 1999, the applicant lodged another application for a medical visa which was granted on 1 March 1999 and was valid until 14 May 1999.[1] 

   [1] Court Book (CB) 104.

2. On 14 May 1999, the applicant was granted a tourist visa valid until 16 February 2000.  However, on 1 December 1999, the applicant was located working in breach of his visa conditions.  The applicant's visa was cancelled and he was detained.[2]

   [2] CB 104.

3. On 16 December 1999, the applicant lodged an application for a protection visa.  On 21 December 1999, that application was refused by a delegate.  On 24 January 2001, the Tribunal affirmed the delegate's decision.  The applicant remained in Australia without a valid visa until 21 March 2001 when he applied for judicial review and was granted a bridging visa. The applicant ultimately discontinued that application on 20 June 2003.[3]

   [3] CB 104.

4. Except for certain periods during which the applicant held bridging visas, the applicant remained in Australia unlawfully from 20 June 2003 until he was again detained on 31 January 2013.  During that period the applicant unsuccessfully applied for a subclass TE428 (religious worker) visa and sought Ministerial intervention.

5. On 4 October 2013, the applicant lodged his second application for a protection visa which was deemed valid on the basis of SZGIZ v Minister for Immigration.[4]  The application included the second-named applicant (applicant's wife).[5]

   [4] (2013) 212 FCR 235; CB 1- 44.

   [5] Ibid.

6. On 31 July 2014, the delegate refused the protection visa application.[6]

   [6] CB 99 - 117.

7. On 2 September 2014, the applicant applied to the Tribunal for review of the delegate's decision.[7]

   [7] CB 118 - 123.

8. On 31 July 2015, the Tribunal affirmed the delegate's decision.[8]

   [8] CB 157 - 167.

Applicants' claims

1. The applicant's claims for protection are contained in the applicant's written application.[9]  The claims were elaborated upon at an interview before the delegate and a further claim was raised at that interview.[10]  The applicant's claims were also contained in letters forwarded to the Minister and provided to the Department[11] and in a statement lodged with the Tribunal by the applicant.[12]  At the hearing before the Tribunal on 24 July 2015, the applicant addressed various queries raised by the Tribunal.

   [9] CB 20-33, 35.

   [10] CB 107.

   [11] CB 80-85.

   [12] CB 148-152.

2. The applicant's claims for protection set out in his first application for a protection visa were based on the alleged persecution he had suffered in Fiji because of his affiliation and activities with the Fijian Labour Party.   The applicant claimed that:

   a)he and his wife were strong supporters of the Federation and Labour Coalition Party (FLCP).  The applicant noted that his wife is the sister of a strong candidate for the party;

   b)there were two coups in May 1987, and the Fijian opposition made life miserable for members of the FLCP.  The applicant and his wife stood by the party and its members despite being interrogated on many occasions;

   c)by the end of 1989, the Ministry of Education removed the applicant from his position as "head teacher" due to his political affiliations.  The applicant remained unemployed for a period of fourteen weeks as no school would allow him to be "head teacher".  The applicant decided to retire in 1992, at 53 years of age;

   d)after the applicant's retirement in 1992, the applicant and his wife moved to Suva where they were abused, molested, victimised and suffered discrimination.  The applicant and his wife decided to come to Australia to find a means of acquiring permanent residence as they did not see a future in Fiji; and

   e)three weeks after the applicant's arrival in Australia, he had a car accident and was admitted to hospital.

3. In the applicant's second application for a protection visa, the applicants' claimed that:

   a)the coups of Fiji have been disastrous and there was a lack of jobs.  The applicants would not be able to survive and their sons are unable to find employment;

   b)they would be subjected to torture, cruelty, inhumane treatment and be subjected to degrading treatment and punishment because of their membership with the Fijian Democratic Movement (FDM) in Australia.  The applicant asserted that the "Bainimarama regime" is against the movement and the applicants would not receive protection from the Fijian authorities if forced to return;

   c)as members of the FDM who applied for protection visas, the applicants would be treated as enemies and would be tortured, degraded and punished as occurred to others who had returned to Fiji; and 

   d)the applicant is 78 years of age and his wife is 73 and if they were to return to Fiji, they would face neglect, homelessness, poverty and unemployment.

4. In an undated letter to the Tribunal which was received on 21 July 2015, the applicant stated that:

   a)as known members of the FDM against the Bainimarama military coup and the government, if the applicants were to return to Fiji, they would be tortured;

   b)they have five sons, three of whom live in Fiji but their sons are not able to support the applicants if they were to return to Fiji.  The applicant stated that there were a lot more jobs for them if they were allowed to remain in Australia;

   c)he has been in Australia for 17 years and his wife for 15.  As his wife is the sister a former Minister for Education, it would be torturous for them to return to Fiji; and

   d)he was a founding member of the new Christian Mission Fellowship in 1998 and had been involved in church activities.  The Fellowship now has 14 churches.  Since November 2013, the applicants have been involved in the new Government Worship centre where they have been actively involved in church services. 

5. The applicants' provided a number of documents in support of their application for protection visas including:

   a)three documents from their sons indicating that they were not able to financially support their parents;

   b)a letter of support from various pastors dated 7 May 2015;

   c)a copy of an Australian Red Cross ongoing medical approval form under the Migration Support Program; and

   d)a letter to the applicant from the South Western Sydney Local Health District referring to the applicant's missed appointments.

The Tribunal's decision

1. The Tribunal rejected the applicants' claims for protection, by reference to both the applicant's political and religious activities in Fiji and their political and religious activities in Australia.

Political and religious activities in Fiji

1. The Tribunal noted the responses of the applicant at the hearing before the Tribunal as to the harm he had suffered by reason of his religious activities in Fiji and was not satisfied that it amounted to significant harm. On the basis of the available information, the Tribunal did not accept that the applicant was abused, molested by anyone, victimised, discriminated against, or that he would suffer any harm in Fiji amounting to significant harm. [13]

   [13] CB 164 -165 at [21] - [23].

2. In relation to the applicant's claims regarding his past employment, the Tribunal accepted, as plausible, that he had difficulty in obtaining employment.  However, it was satisfied that the applicant had not suffered any significant harm.  The Tribunal found that there was not a real risk of such harm occurring to the applicant on the basis of his employment.  The Tribunal noted that the applicant was then 77 years of age and had retired.[14]

   [14] CB 165 at [24].

3. In relation to the applicants' connections with the wife’s brother, the Tribunal accepted, as plausible, that the applicant's wife was the sister of the man.  However, on the basis of available information and given its earlier findings relating to the claimed harm suffered by the applicant, the Tribunal was satisfied that there was not a real risk of the applicants suffering significant harm on the basis of having family and/or political connections with him.[15]

   [15] CB 165 at [25].

4. The Tribunal accepted, as plausible, that the applicant supported the FLCP and the Fijian Alliance and that his activities, consistent with his own evidence, were limited to financial support, "standing together" and donations.  The Tribunal also accepted, as plausible, that the applicant was involved in religious activities as he claimed and that he was one of the founders of the new Christian Mission Fellowship.  However, it observed that those activities occurred many years ago and found that they did not give the applicant a political and/or religious profile of adverse interest to the Fijian authorities at the time.  The Tribunal was satisfied that there was not a real risk of significant harm occurring to the applicant on the basis of his political or religious activities or opinions, actual or imputed.[16]

Political and religious activities in Australia

[16] CB 167 at [26].

1. The Tribunal accepted, as plausible, that the applicant had been involved in activities relating to the FDM, namely support, marching, meetings and donations.[17]  However, the Tribunal considered it highly unlikely that the government in Fiji would be aware that the applicant disagreed with the regime in Fiji.  It was satisfied, based on available country information, that the activities of the applicant did not give him an adverse political profile that would mean he faced a real risk of significant harm should he return to Fiji.[18]  The Tribunal noted that a report from the Department of Foreign Affairs and Trade[19] (DFAT Report) indicated that there appeared to be positive changes in Fiji since the applicants came to Australia.  The Tribunal also noted that the DFAT Report indicated that Fiji's Constitution (Constitution) guarantees freedom of speech, expression and publication, assembly and association (and also that those rights could be limited by the laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections).[20]

   [17] CB 166 at [31].

   [18] CB 166 at [31].

   [19] Australian Department of Foreign Affairs and Trade, DFAT Country Report Fiji, 14 April 2015, CB166 at [28].

   [20] CB 166 at [31].

2. On the question of religion, the Tribunal noted that the DFAT Report indicated that Fiji was religiously diverse and that the Constitution establishes Fiji as a secular state guaranteeing freedom of religion.[21]

Whether there was a real risk of the applicant suffering significant harm if returned to Fiji

[21] CB 166 at [32].

1. The Tribunal noted the applicants' claim that their house in Fiji was taken by another clan and that their sons did not have the financial means to support them in Fiji. The Tribunal had doubts about that claim. In any event, it noted that the system of land ownership in Fiji is protected in the Constitution and in a suite of legislation.[22]  The Tribunal recognised that the applicants' age group, housing issues and any trouble they may encounter in claiming back their land could present challenges in settling back in Fiji.  However, in consideration of the evidence as a whole and the applicants' claims independently and cumulatively, the Tribunal found that any difficulties the applicants may encounter would not amount to significant harm as contemplated by the Migration Act 1958 (Cth) (Migration Act).  On the basis of the available information, the Tribunal was satisfied that there was not a real risk of the applicants suffering significant harm in case of their return to Fiji on any basis.[23]

   [22] CB 167 at [34].

   [23] CB 167 at [34] and [35].

2. The Tribunal concluded that it was not satisfied that the Applicants were persons in respect of whom Australia had protection obligations. It found that they did not satisfy the criterion set out in s.36(2)(aa) of the Migration Act.

Present proceedings

1. These proceedings began with a show cause application filed on 29 September 2015. The grounds in that application are in narrative form but are helpfully summarised in the Minister’s submissions at [25].

2. The applicants' grounds of review are as follows:

   a)Public interest: on the basis that my stay in Australia, together with my wife is of profound benefit and comfort to my sister in law, a citizen of Australia, and her son and the two granddaughters too.  We are blood relatives because my wife and my sister are blood sisters (Ground One)

   b)Legitimate expectation: we are claiming that we have known the two granddaughters, for all their known lives.  The two girls have known us ever since the day they were born.  It is for this reason that we claim the virtues of Minister of State for Immigration v Teoh[24]  (Ground Two).

   c)Changed circumstances in Fiji/new ground: I enclose a folder containing supporting documents that challenge any claim of DFAT that Fiji has, returned to normal democratic rule since 17 September 2014 General Elections, because Fiji is still under military dictatorship with escalating police and military brutality taking place daily as these documents attest to (Ground Three).

   d)Association with the wife’s brother: would be problematic for us if we were to be sent back to Fiji (Ground Four). 

   e)Association with [named person]: would be highly harmful for me and my wife since [named person] is a person of interest in Fiji after she helped the two autonomous Christian states in Fiji to do the Unilateral Declaration of Independence (UDI) following the precedent and will in Kosovo: The right to succeed (sic) from an oppressive government.  She counselled the native chiefs of Fiji on following the precedent of Kosovo after the chiefs have exhausted all avenues to sit down and talk sense and reach some common ground with Bainimarama and his military sub-rule.  We are both supporters of her and for the survival of our race and the perpetuity of our Christian faith in our own country Fiji, and we do have become like her, enemies of the state of Fiji according to SBS world news interview of Bainimarama of 31 August 2015 (and the following supporting documents arranged in chronologic order, attached) (Ground Five).

   [24] [1995] HCA 20.

3. Those grounds are augmented in written submissions made by the applicants which are also dealt with in the Minister’s submissions at [27].

4. The Applicants' submissions also detail (prior to outlining their five grounds of review) a number of factual matters.  To the extent those factual matters raise new protection claims or evidence the court has no jurisdiction to consider that material.  To the extent these are matters which go to the merits of the applicants' protection claims and were dealt with by the Tribunal, it is not within the power of the court to interfere with the Tribunal's factual findings. 

5. The procedural history of the matter was somewhat protracted. Initial orders were made by a registrar and the matter came before me on 10 May 2016 on an issue of an extension of time and potentially a show cause hearing. I granted the extension of time sought pursuant to s.477(2) of the Migration Act and adjourned the show cause hearing in order to provide a further opportunity for the applicants to make submissions.

6. The matter came before me again on 3 June 2016 at which time I had become aware of the Minister’s appeal to the Full Federal Court from my decision in SZVCH v The Minister for Immigration.[25] In the light of those proceedings in the Full Federal Court, I ordered the Minister to show cause pursuant to rule 44.12(1)(b) of Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) why relief should not be granted consistently with my decision.

   [25] [2015] FCCA 2950.

7. The essential purpose of that order was to ensure that the applicants could benefit from any favourable decision of the Full Federal Court. 

8. The Full Federal Court’s decision was handed down on 14 September 2016.  The Minister’s appeal was successful.  The Minister responds to the Court’s show cause order in supplementary submissions filed on 27 September 2016.  Those submissions are undoubtedly correct.

9. Relief should not be granted because the Full Federal Court in Minister for Immigration v SZVCH [2016] FCAFC 127 (SZVCH) found that the decision at first instance was incorrect insofar as it was held that the delegate of the Minister had jurisdiction (whether as a matter of election, discretion or however it may be described) to consider a second application for a protection visa against the criterion in s. 36(2)(a) of the Migration Act.[26] 

   [26] See [41], [43] - [44] per Kenny, Siopis and Besanko JJ and [113] per Mortimer J.  Dowsett J agreed with the other members of the Court on this point at [5] of SZVCH.

1. In SZVCH, the Court found that the scope of the duty under s.65 of the Migration Act is circumscribed by the limited scope of a valid second application made by an applicant under s.46 of the Migration Act read with s.48A(1) of the Migration Act. The Court observed that the consequence for a delegate of the Minister is to exceed the jurisdiction conferred by s.65 of the Migration Act if an applicant's further application for a protection visa is considered against the criterion in s.36(2)(a). The Court determined that the statutory task of the delegate under s.55 did not include consideration of an applicant's further application for a protection visa against the criterion in s.36(2)(a) of the Migration Act.[27]

   [27] See [113] of SZVCH.

2. The applicants have filed a second application styled as an amended application on 10 May 2016.  Additional purported grounds were included in that application which, after some discussion today, the applicants invited me to deal with conjointly with their original application. 

3. Unfortunately for them, the matters raised in both their original application and the amended application do not rise above a dispute over the merits of the Tribunal decision and the undoubted existence of humanitarian considerations. 

4. The Minister’s submissions deal adequately with the grounds advanced in the original application.  I agree with those submissions.

5. The applicants misunderstand the role of the Court or the basis upon which they may seek review of the decision of the Tribunal.  In essence, by their 'submissions' and each of their grounds of review the applicants seek a review of the merits of their claims. 

Ground One

1. Ground 1 is misconceived. The "public interest" is not a relevant legal consideration for a protection visa.  Nor were the factual matters raised under Ground One put before the Tribunal.  Accordingly, Ground One must fail.

Ground Two

1. By this ground the applicants' claim to have a legitimate expectation based on the "searches of Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20” (Teoh). This ground is misconceived and must fail.

2. First, a legitimate expectation is a legal concept rather than a relevant consideration for an assessment of a protection visa application.  Moreover, as established in Re Minster for Immigration: Ex parte LAM,[28] a legitimate expectation is not an accepted doctrine and is an expression "apt to mislead".[29] To the extent that Teoh has some application (which is doubtful), this matter is distinguishable at a fundamental level.  Teoh involved the best interest of children in relation to their father.  In this matter the children are (so far as we could be understood) the grand daughters of the sister of the Applicant's wife.  The connection is remote and there is no evidence to suggest that the children's best interest will not be met if the applicants are removed.  More significantly, the applicants did not put the issue of their granddaughters before the Tribunal.  Accordingly, this court has no jurisdiction to consider this claim.

   [28] [2003] HCA 6.

   [29] per Callinan J at [140].

Grounds Three and Five

1. Grounds Three and Five must fail.  They were not put before the Tribunal and seek a review of the merits of the applicants' claims.  No jurisdictional error is disclosed. 

Ground Four

1. The applicants, by this ground, seek a review of the merits of their claim before the Tribunal relating to their association with the wife’s brother.  This claim was considered and addressed by the Tribunal at [21] and [25] of its decision.  At [25], the Tribunal accepted that it was plausible that the Applicant's wife was the sister of the man.  It noted the applicants' evidence that the wife’s brother had left politics and was currently living in Fiji.  On the basis of the available information, and the Tribunals earlier findings relating to the claimed harm, it was satisfied that there was not a real risk of the applicants suffering significant harm on the basis of having family and/or political connections with him. No error is disclosed in the Tribunals consideration of this claim and that the Tribunal's findings were reasonably open to it on the material before the Tribunal.  Accordingly, Ground Four does not raise discernible jurisdictional error and fails.

2. Nothing justiciable arises out of the amended application. 

3. I conclude that the applicants are unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  There are, as I have noted earlier, strong humanitarian considerations and I was told this morning that a person assisting the applicants has arranged a meeting with the Minister for Immigration to discuss those issues.

4. I will order that the application filed 21 September 2015 and as amended on 10 May 2016 be dismissed.

5. In consequence of the dismissal of the application, the Minister seeks an order costs in accordance with this Court’s scale as it applied when the application was filed.  The applicants claim impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

6. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,825.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 6 October 2016