BZQ17 v Minister for Immigration

[2018] FCCA 1445

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZQ17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1445

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in Fiji – principal applicant disbelieved in some respects and other fears found not to be well founded – whether the Tribunal overlooked an unexpressed issue considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 417, 477

Cases cited:

BBP15 v Minister for Immigration [2018] FCA 501

Kasupene v Minister for Immigration (2008) 49 AAR 77

Minister for Immigration v SZNPG [2010] FCAFC 51

Minister for Immigration v Yusuf (2001) 206 CLR 323

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

NAHI v Minister for Immigration [2004] FCAFC 10

NAVK v Minister for Immigration [2004] FCA 1695

First Applicant: BZQ17

Second Applicant: BZR17

Third Applicant: BZS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1420 of 2017

Judgment of: Judge Driver

Hearing date: 30 May 2018

Date of Last Submission: 13 June 2018

Delivered at: Sydney

Delivered on: 8 August 2018

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms E Cheesman of Clayton Utz

ORDERS

1. The application filed on 9 May 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1420 of 2017

BZQ17

First Applicant

BZR17

Second Applicant

BZS17

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 November 2015.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.

2. The following statement of background facts is derived from the submissions of the Minister.

3. The applicants, who are citizens of Fiji, entered Australia on visitor visas on 12 December 2009.

4. On 12 January 2010, the primary applicant (applicant) applied for a protection visa.  On 12 April 2010, a delegate of the Minister refused to grant that visa.  On 10 August 2010, the Tribunal (differently constituted) affirmed the delegate's decision.  A subsequent application for judicial review was initially successful but the result was overturned on appeal by the Full Federal Court.

5. On 3 December 2013, a request by the applicants for Ministerial intervention under s.417 of the Migration Act 1958 (Cth) (Migration Act) was refused.[1]

   [1] Court Book (CB) 347 [12].

6. On 5 March 2014, the applicants lodged the current protection visa application.[2]  On 27 June 2014, the delegate refused to grant the protection visas.[3]  On 7 May 2015, the applicants appeared before the Tribunal.  The Tribunal was subsequently reconstituted.  On 3 November 2015, the applicant appeared before the newly-constituted Tribunal.[4]

   [2] CB 1 - 119.

   [3] CB 258 - 276.

   [4] CB 346 [4].

7. On 13 November 2015, the Tribunal affirmed the delegate's decision.[5]

   [5] CB 345 - 369.

8. Subsequently, the Tribunal referred the matter to the Minister’s Department for consideration under s.417 of the Migration Act.[6]  On 13 March 2017, that request was refused.

   [6] CB 368 [107].

9. On 9 May 2017, the applicants commenced the current proceedings.

The applicants' claims

1. The first applicant (applicant) claimed to fear harm from the Fijian authorities due to her:

   a)being the first cousin, once removed, of the ousted former leader of Fiji, Laisenia Qarase;[7]

   b)anti-government political activities in Fiji and Australia, and her likely anti-government activities if returned to Fiji.  Fijian law criminalises anti-government demonstrations, even those held overseas;[8]

   c)interactions with businessman Ben Padarath;[9] and

   d)as a practising Methodist Christian, the Methodist church being subject to “restrictions” in Fiji.[10]

   [7] CB 348 [17].

   [8] CB 348 [17] - [19].

   [9] CB 248 [18].

   [10] CB 352 [28].

2. The applicant also claimed to fear harm due to her inclusion in the social group of “divorced, middle-aged females who are unable to access appropriate medical care in circumstances where it is likely they will also be unable to obtain employment”.[11]

   [11] CB 349 [23].

3. All three applicants claimed to fear harm due to:

   a)the poor standard of neurological medical services available in Fiji;[12]

   b)the applicant's ex-husband, who was previously violent towards all three applicants;[13] and

   c)financial difficulties if returned to Fiji, including the applicant's inability to obtain financial support from her ex-husband, or to find employment.[14]

   [12] CB 349 [21], 367 [106].

   [13] CB 349 [23], 361 [66] - [68].

   [14] CB 363 [77] - [78].

The Tribunal's findings

1. In the current protection visa application, only the applicant indicated that she had claims in her own right.  However, the application gave rise to possible claims by the second applicant (daughter) and third applicant (son) in their own right.  As such, the Tribunal considered the second and third applicant's claims against both the refugee protection and complementary protection criteria.  It considered the applicant's claims against the complementary protection criteria.

2. The Tribunal found that the applicant was not owed protection obligations under s.36(2)(aa) of the Migration Act. It found that the applicant had “exaggerated claims” and made at least one “blatant false claim”.[15] The Tribunal found that neither the second applicant nor third applicant were owed protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Migration Act. In reaching these conclusions, the Tribunal made the following findings.

   [15] CB 358 [37].

Applicant's risk of harm due to her relationship to Mr Qarase, and her political activities

1. The Tribunal accepted that:

   a)prior to leaving Fiji, the applicant was involved with the now-opposition party.[16] It accepted that she was fired from her administrative role with the School of Medicine after appearing in uniform at an anti-government rally in 2008;[17]

   b)the applicant had previously provided administrative support to Mr Padarath, who opposed the Fijian government.  However, the Tribunal found that involvement did not cause the applicant “any significant difficulties” in Fiji;[18]

   c)since arriving in Australia, the applicant had been involved in various anti-government organisations before her health issues prevented further activities.  The applicant indicated that she did not have any leadership or organisational role;[19] and

   d)the applicant would undertake similar activities if returned to Fiji.[20]

   [16] CB 359 [47].

   [17] CB 358 [43].

   [18] CB 359 [46], 360 [52].

   [19] CB 360 [54] - [56].

   [20] CB 362 [74].

2. However, the Tribunal:

   a)did not accept that the applicant was interrogated by the military on suspicion of passing confidential information to Mr Qarase while working as an executive assistant at the Fiji Broadcasting Corporation (FBC).  The Tribunal found that she was, in fact, called to a meeting with FBC board members, one of whom was a member of the military.  This was not “the equivalent of an arrest or an interrogation”;[21] 

   b)did not accept the applicant's claims in her application to have been threatened and tortured by the army when in Fiji.  She failed to mention these matters before the Tribunal until prompted, and then explained to the Tribunal that, when at social functions, army personnel who were present would say threatening things to her, and tell her to disassociate herself from Qarase.  The Tribunal found that these comments did not constitute “any serious threats” or cause the applicant “physical harm”, and found the applicant's claim of torture to be the product of “exaggeration and overreach”;[22] and

   c)found that, contrary to the applicant's claims, there was no evidence that Fijian law criminalised demonstrations that occurred outside of Fiji.  The Tribunal noted that, despite being granted additional time to provide such evidence, the applicants did not do so.[23]

   [21] CB 358 [40], 359 [48].

   [22] CB 359 [44], [45], [51], 360 [53].

   [23] CB 365 [91].

3. Having considered independent country information, the Tribunal found that the applicant would not face a real risk of harm in Fiji whether from her continued political activities in Fiji, or her support of, and relation to, Mr Qarase.[24]

   [24] CB 364 [81] - 365 [88].

4. The Tribunal also noted that a Fiji Times Online article provided by the applicant made reference to her appeal in relation to the previous Tribunal decision. However, the Tribunal was not satisfied that the publication of that article provided sufficient information that would identify the applicant to anyone in Fiji, and this would not expose the applicant to a risk of significant harm.[25]

   [25] CB 365 [89].

Applicant's risk of harm as a practising member of the Methodist church

1. The Tribunal accepted that the applicant would continue her religious practice if returned to Fiji, but was not satisfied, on the basis of country information, that there were any current restrictions on the Methodist Church, or that its members were subject to mistreatment, such as to constitute significant harm.[26]

   [26] CB 366 [94].

The applicants' risk of harm from the applicant's ex-husband

1. The Tribunal found the applicant had “not been truthful” in relation to this claim.[27]  The applicant claimed that the ex-husband had stopped supporting her in 2005, that they had divorced in 2014, and that the ex-husband was now in another relationship.  The applicant claimed that the ex-husband had recently been aggressive towards her and the second and third applicants, in part because she had requested financial support from him.  The applicant appeared to suggest that because of the ex-husband's involvement in prison system he has connections with “unsavoury people and gangsters”.[28]

   [27] CB 362 [72].

   [28] CB 360 [59].

2. The Tribunal rejected these claims, and found that the applicants did not face a risk of harm from the ex-husband.  It found that the ex-husband had provided a letter of support for the applicant as part of her first protection visa application in 2009, an inconsistency that the applicant was unable to explain.  Further, the separate evidence of both the second and third applicants was that the ex-husband, though previously violent, had made no recent threats, and had occasionally sent them both money.  The applicant was unable to explain these inconsistencies.[29]

   [29] CB 360 [60] - 362 [72].

The applicants' need for neurological medical care

1. The Tribunal accepted that the applicant had neurological medical conditions that required ongoing monitoring, and possible future treatment.  It also accepted that the applicant had other medical conditions, and that the second and third applicants would require neurological monitoring and preventative treatment.  It accepted that neurological services in Fiji were “limited”.[30]  However, the Tribunal found that the requisite intention to inflict significant harm was not satisfied.  Similarly, the Tribunal found that there was nothing to suggest that any harm suffered by the second or third applicants for this reason would be for a Convention reason.[31]

   [30] CB 366 [98].

   [31] CB 366 [99] - 367 [106].

Difficulties in resettling in Fiji 

1. The Tribunal accepted that the applicants being returned to Fiji would cause them disruption, and possibly place them in a less favourable economic environment.  However, the Tribunal noted that there was no independent evidence that the second or third applicants would not be able to obtain education, and found the applicant would likely be able to find work in Fiji.[32] In any event, the Tribunal found that any difficulties faced by the applicants in these respects would not amount to harm under s.36(2)(a) or (aa) of the Migration Act.

   [32] CB 363 [77] - [78], 366 [95].

The present proceedings

1. These proceedings began with a show cause application filed on 9 May 2017. The application was filed 508 days outside the period prescribed by s.477(1) of the Migration Act. The applicants sought an extension of time under s.477(2) of the Migration Act. On 30 May 2018 at the trial I granted the extension of time sought, having regard to what I regarded as extraordinary circumstances. The applicant suffers from life-threatening health conditions and the Tribunal (quite properly) referred the matter to the Minister for his consideration after the Tribunal made its decision. While a request for Ministerial intervention sought by an applicant on the basis of advice or other informed consideration is not a reason to grant an extension of time, a referral by the Tribunal of its own motion in unusual circumstances may be a reason and in this case was.

2. The application contains five grounds of review:

   1.Medical reasons appeal for reconsideration.

   2.Under humanitarian & compassionate grounds my full-time volunteer in charity and community work be taken into consideration - letters from community leaders will be provided.

   3.An error on decision record for AAT 12. Background - that the "application on 13 January 2014 to waive condition 8503 was refused" - this was not true. We have letter stating that 8503 has been waived.

   4.Evidence of warning by interim govt. in Fiji to those who are actively involved in meetings, social media going against the government will be dealt with upon arrival in Fiji.

   5.Appeal for consideration to be given permanent residency as my 2 children have grown into this beautiful country of Australia and would like to pursue further studies here and we all love to support and contribute to this beloved country.

   (errors in original)

3. I have before me as evidence the court book filed on 7 September 2017. 

Consideration

1. Having obtained the extension of time sought, the applicant was unable to advance any serious legal argument on the validity of the Tribunal decision.  Her short submissions focused upon her poor state of health and her fears of returning to Fiji.  To the extent that her submissions went beyond the merits of the Tribunal decision, those submissions raised humanitarian considerations.

2. In my view the Minister’s submissions deal adequately with the grounds of review advanced in the application.  I agree with those submissions.

3. Ground 1, insofar as it seeks “reconsideration” of the Tribunal's findings in relation to the medical claims, invites impermissible merits review.

4. Ground 2 appears to invite this Court to consider the applicant's charity and community work.  That is not a proper ground of review.  In any case, humanitarian and compassionate grounds are not relevant to the considerations for the grant of a protection visa.  Moreover the Tribunal explicitly referred to the applicant's supporting documents which attested to her participation in community activities.[33]

   [33] See CB 45, which the Tribunal referred to at CB 349 [20].

5. Ground 3 alleges an "error" in that the Tribunal recorded[34] that “[a]n application on 13 January 2014 to waive condition 8503 was refused”.  While the Minister concedes that an application for a waiver of condition 8503 was granted on 22 January 2014, condition 8503 is a no further stay provision and is legally irrelevant to the criteria for granting a protection visa. In any event, even though the Tribunal was incorrect in stating that the 13 January 2014 application to waive condition 8503 was refused, the error was within jurisdiction.  An error of fact based on a misunderstanding of evidence is not jurisdictional error, so long as the error does not mean that the Tribunal has not considered the applicant’s claim.[35]  The error did not affect the Tribunal's exercise of power.[36]

   [34] At CB 347 [12].

   [35] Minister for Immigration v SZNPG [2010] FCAFC 51 at [28].

   [36] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82].

6. It is unclear to what “evidence” ground 4 refers.  In any case, ground 4 lacks substance.  The Tribunal expressly considered the applicant's risk of significant harm in Fiji in light of her past, continuing, and likely future political activities.[37] The Tribunal found that the applicant, as an “ordinary” member of political groups, will not face a real risk of significant harm if returned to Fiji. This finding was made in light of the Tribunal's consideration of independent country information,[38] and the applicants' voluminous supporting documentation.[39]  Such a finding was clearly open to the Tribunal upon the materials before it, and there is nothing to suggest that the Tribunal ignored or failed to consider any evidence before it.  Moreover, it is well-established that the choice and weight to be given to the country information is a matter for the Tribunal.[40]

   [37] CB 363 [80] - 364 [81].

   [38] CB 355 [33].

   [39] See CB 348 [20] - 352 [27].

   [40] NAHI v Minister for Immigration [2004] FCAFC 10 at [11] - [13].

7. Ground 5, which consists of a request for the second and third applicants to be granted permanent residency, is not a proper ground of review.

A further issue

1. The applicant asserted to the Tribunal that she would not obtain adequate medical care in Fiji.  The proposition was principally that adequate medical care was not available in Fiji but, arguably, included an assertion that the authorities might in some way prevent persons in the position of the applicant from getting access to adequate care.  The Tribunal dealt with that issue.  During the course of oral argument, however, it occurred to me that there might also be an issue of whether the authorities might prevent the applicant from travelling should she need medical attention overseas.  I invited further submissions from the parties on that issue.

2. By emails sent on 13 June 2018 the applicant stressed the dire state of her health and her various health ailments.  She also stated her fear of being subjected to questioning by the authorities. 

3. The Minister filed further written submissions on the same day.  Those submissions addressed the issue I raised at the trial.  I accept those submissions.

4. The legal principles are well settled on the issue of when a Tribunal may be required to consider an unexpressed claim which clearly arises on the material before it.  In NABE v Minister for Immigration (No 2),[41] the Full Federal Court noted that there was an obligation to respond not only to an expressly made claim but one “squarely” raised on the material and continued:[42]

   The use of the adverb “squarely”  … indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

   [41] (2004) 144 FCR 1.

   [42] NABE at [58] (The Court).

5. Similarly, in NAVK v Minister for Immigration,[43] Allsop J (as his Honour then was) explained:[44]  

   A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytic exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

   [43] [2004] FCA 1695.

   [44] NAVK at [15] (Allsop J).

6. While there is no precise standard for determining whether an unarticulated claim has been “squarely raised”, a Court may be more willing to draw the line in favour of an unrepresented party.[45]  The applicants appear to have been represented both during the visa application process and before the Tribunal.

   [45] Kasupene v Minister for Immigration (2008) 49 AAR 77 at [21] (Flick J). See also BBP15 v Minister for Immigration [2018] FCA 501 at [45] (Griffiths J).

1. The essence of the applicant's central claim, as set out at [10] above, is her fear of harm from the Fijian authorities, based on being related to the ousted former leader of Fiji and her previous involvement in anti-government political activities in Fiji. The applicant's claimed harm due to the poor standard of neurological medical services available in Fiji was a separate claim, which was not related or linked to her central claim in any way. I accept that the principal basis for such a claim was that Fiji has inadequate medical services to provide the applicant with the requisite monitoring and/or treatment for her neurological medical conditions.

2. So much is clear by the material before the Tribunal which contained the following references to the applicant's claim to fear harm due to the poor standard of neurological medical services in Fiji:

   a)the applicant has "suffered a severe aneurism. The state of Fiji cannot deal with such life threatening condition [sic], as can be validated by Country Information conveyed, that is the lack of suitably skilled medical specialists…. ";[46]

   b)"if the applicant were obliged to return [to Fiji] she would not be able to receive suitable or indeed any effective treatment";[47]

   c)"the nature of the aneurism suffered by the applicant would place her in a position where it is highly likely/probable that she would not be able to receive the necessary medical care in Fiji";[48] and

   d)"[t]he primary issue is the consequence of returning the applicant to an environment where she will be unable to receive treatment for what currently presents as a major and physically disabling impediment, which is visually obvious to identify".[49]

   [46] CB 128; submission dated 8 April 2014.

   [47] CB 129; submission dated 8 April 2014.

   [48] CB 247; post interview submission dated 9 June 2014.

   [49] CB 290; submission dated 3 May 2015.

3. The Minister submits and I accept that a claim to fear harm on account of the Fijian authorities preventing the applicant from travelling outside Fiji in order to obtain necessary medical assistance is so tangential it cannot be said to arise "tolerably clearly" from the material itself for the following reasons.

4. First, a finding that a claim "might" be seen to arise on the materials is not enough.[50] In no part of any of the aforementioned submissions was there a suggestion that the applicant would be prevented from leaving Fiji in order to obtain necessary medical assistance.

   [50] NABE at [68] (The Court).

5. Secondly, the applicants' representative's claim that “intent can be defined as deliberate inaction by the state, that is at the very least a wilful omission” [51] was advanced in the context of submitting that the applicant met the requisite criteria in s.5(1) of the Migration Act due to the lack of appropriate medical infrastructure in Fiji.

   [51] At CB 240.

6. Thirdly, it is not without significance that the applicants were represented before the Tribunal.  No submission was made suggesting that Fijian authorities may not allow the applicant to depart the country to seek essential medical assistance.

7. Finally, to say that the Tribunal “should have considered the risk of the Fijian authorities preventing the applicant from travelling outside Fiji in order to obtain necessary medical assistance” would be to engage in what the Full Court in NABE described as requiring “constructive or creative activity” on the part of the Tribunal.[52]  Similarly, as Allsop J put it in NAVK as reproduced at [38] above, it would require the Tribunal to “undertake an independent analytic exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy”.[53]

   [52] NABE at [58] (The Court).

   [53] NAVK at [15] (Allsop J).

8. I accept that, while the issue raised by me might have occurred to those seeking to advance the applicant’s interests, either before the Tribunal or in the context of Ministerial intervention, it does not appear that the issue was raised.  I further accept that the issue could not be said to squarely arise from the material before the Tribunal.  It could be considered now by the Minister, if he was so minded.  The humanitarian considerations in this case loom large, given the dire state of the applicant’s health.  There must be a question whether the applicant would be fit to travel, were she required to leave Australia.  There is also in my view the question, left unconsidered to this point, of whether there is a risk that obstacles could be put in the way of the applicant seeking overseas medical treatment from Fiji should she require it. 

Conclusion

1. I conclude that the applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

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

Date:       8 August 2018