CAB18 v Minister for Home Affairs
[2019] FCCA 1663
•18 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAB18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1663 |
| Catchwords: MIGRATION – Protection visa – claim of fear of harm suffered at hands of police and military in Fiji – inconsistent and implausible evidence – claim rejected on the basis of no real chance of suffering serious harm or real risk of significant harm from Fiji security authorities including police and military – no jurisdictional error shown – application dismissed. |
| Legislation: Migration Act 1958, ss.65, 65(1)(b), 91W, 36, 36(aa), 36(1A)(b), 36(2), 36(2)(a), 36(2)(aa), 36(3), 5J(1)(a), 5J(1)(c), 5H(1), 5H(1)(a), 474, 474(1)(c), 474(2), 476(2)(b), Migration Regulations 1994, Schedule 2 |
| Cases cited: Plantiff S157/2002 v Commonwealth of Australia (2003) 21 CLR 476 ARJ17Minister for Immigration and Border Protection [2017] FCA 263 |
| Applicant: | CAB18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 28 of 2018 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 22 March 2019 |
| Date of Last Submission: | 22 March 2019 |
| Delivered at: | Canberra |
| Delivered on: | 18 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Self-Rep |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 20 April 2018 is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 28 of 2018
| CAB18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 20 April 2018 the applicant applied for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 March 2018 affirming the decision made by the delegate of the Minister on 6 January 2016 to refuse the applicant’s application for a Protection (subclass 866) visa pursuant to section 65 of the Migration Act1958 (“the Act”).
Background
The applicant is Fijian, born in Fiji where he completed his schooling. He was married in 1993 and divorced in December 2014. His children, former wife and brothers live in Fiji. He has a brother and sister in another country and a sister in Australia.
The applicant travelled to Australia on 17 occasions, 4 times in the 1990’s, 8 times between 2002 and 2009, and 4 arrivals in 2014. On 23 April 2015 he arrived in Australia as the holder of a temporary work visa (GA400) that was valid for stay in Australia until 6 June 2015.
On 27 May 2015 the applicant lodged an application for a Protection visa. In support of his application he relied on a statutory declaration dated 25 May 2015 (“first statutory declaration”). On 2 June 2015 the applicant was required to produce information in relation to his claimed identity, nationality or citizenship under section 91W of the Act. The applicant satisfied this requirement.
The applicant attended an interview in relation to his claims for protection on 21 October 2015. He relied on documents previously lodged in addition to submissions filed on 19 October 2015.
Protection visa application
The applicant applied for a Protection visa claiming to fear harm should he return to Fiji. In support of his application he relied on his first statutory declaration. The applicant asserted that his ex – wife became involved with police due to her dealings with a real estate business and she was on remand in Fiji. He claimed that police had attended his ex - wife’s home on at least 8 occasions in relation to those matters and at 4.00 a.m. (on a date unknown) police arrived at his ex – wife’s home stating they had a bench warrant. The applicant was present at the time and questioned police about their actions and was told it was “none of your business and we’re here to do our job.” His ex - wife was taken to Raiwaqa Police Station and he followed her there. Following a verbal altercation at the police station the applicant claimed “an officer hit me….and put me in a cell block and they beat me while handcuffed.” His ex - wife was kept in prison but he was released. A few days later his ex - wife was released. He claimed that when he tried to support his ex - wife regarding her involvement in matters relating to the real estate business he was beaten up by police. He claimed the last time he was beaten up was on Boxing Day in 2014. He said “that was after I went back from Australia for the last time.” He said his ex - wife has continued to have problems with the police. He did not consider that his ex - wife had committed any offences. He has children in Fiji but is afraid “that I’ll be beaten up by the police and the military if I go back to Fiji.”
The applicant claimed further that he had problems with the military in the past and fears harm on the basis of his involvement in previous incidents. He claimed he worked for Rewa Dairy when Mr A[1] was CEO. Mr A was the son of Mr B[2] a businessman who led the 2000 coup in Fiji. Mr A would visit his home and he was a family friend. He said Mr A is distantly related to his wife’s mother. He claimed he was picked up by three soldiers in “early 2007” and questioned about his involvement with Mr B and beaten by military soldiers. He was released but two weeks later he was again picked up by the military, stripped naked, made to carry a rock over his head, beaten with an M16 rifle on his shins and made to drink chilli water.
[1] The Tribunal member referred to Sam Speight the son of George Speight as Mr A
[2] The Tribunal member referred to George Speight ( a person involved in the 2000 coup in Fiji) as Mr B
Decision of Delegate to the Minister
On 6 January 2016 the Minister’s delegate notified the applicant that his application for the grant of a Protection visa was refused on the grounds that he did not satisfy the relevant criteria under subsection 36 (2) of the Act. The delegate determined that the claim for protection in relation to the harm the applicant claims to fear was not credible. Regarding the applicant’s identity assessment the applicant was found to be a national of Fiji and Fiji found to be the receiving country. The delegate found there was no evidence to contradict the applicant’s claims that he holds any other citizenship or has a current right to enter and reside in a third country pursuant to subsection 36 (3) of the Act.
The delegate found that the applicant “does not have a well – founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” (see subsection 5J (1) (a) of the Act) nor that “there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph 5J (1) (a)” nor that “the real chance of persecution relates to all areas of a receiving country” (see subsection 5J (1) (c )).
The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations and was satisfied that the applicant was not a refugee as defined by section 5H (1) (a) of the Act.
On 19 January 2016 the applicant applied for a review to the Tribunal of the delegate’s decision.
Tribunal hearing
The applicant appeared before the Tribunal on 4 January 2018 to give evidence and present argument. The Tribunal provided a statement of its decision and reasons for decision on 22 March 2018.
On 29 December 2017 the applicant provided information to the Tribunal that included country information and a statutory declaration dated 23 December 2017 (“second statutory declaration”) which set out additional claims by the applicant not previously raised before the delegate. In his second statutory declaration the applicant claimed that he was no longer with his ex – wife. Previously he had not believed she had committed any offences and had supported her in Fiji with the police and made a “nuisance of himself” while trying to protect her from false charges. His relationship with his ex – wife had deteriorated and he now feared if he returned to Fiji she would go to police and tell them things about him that are not true: [19][3]. He believed the police and the military would target him if he returned to Fiji. Mr C[4] a senior government official was the officer in charge of the army base when he was abused and later sexually assaulted in 2000. He was concerned that Mr C will continue to cause him problems because of his behaviour at police stations and the criminal backgrounds of his ex - wife and his brother [19].
[3] Paragraph references refer to the Tribunal’s reasons for decision dated 22 March 2018
[4] The Tribunal referred to Sitiveni Qiliho as Mr C
The applicant claimed he was afraid to return to Fiji now because Mr C was now a senior government official and there was ongoing police brutality in the country. He feared he would be targeted by Mr C “who will remember him from 2000 because of his interventions with the police over his ex – wife’s case, most recently in 2014 or 2015.” He claimed that if he returned to Fiji he will still support his ex – wife in her ongoing fraud cases and will face the same beatings as before, when the police see him at the police station again. He confirmed that he did not fear harm in Fiji for any other reason: [25]
He confirmed that he had never had a direct encounter with Mr C and was not sure what position he held at the army base in 2000. He said he saw Mr C at the camp giving orders before he was taken into a room for questioning by two others, although he also stated his head was covered both at the time he was brought to the camp and while he was being questioned. He did not see Mr C on the second occasion when he was sexually assaulted by three other men: [26] He confirmed that he had never encountered problems leaving or entering Fiji and that he had travelled to Australia on multiple occasions including four times in 2014: [28]
Tribunal’s considerations
The Tribunal was satisfied that the applicant is a national of Fiji. The Tribunal found that Fiji is the country of reference with respect to the refugee criteria and the receiving country in respect of the complementary protection criterion.
The Tribunal did not find the applicant to be a truthful and credible witness about the reasons he fears harm in Fiji but found his evidence regarding key aspects to be inconsistent and implausible: [30]
The Tribunal accepted that the applicant may have been physically assaulted and sexually abused at the hands of military personnel in the course of investigation notwithstanding the inconsistency regarding when the events took place: [33] The Tribunal found the applicant’s claim unsubstantiated that the officer in charge of the army base where the applicant was detained in 2000 was Mr C who in 2016 was appointed a senior government official. The Tribunal was not persuaded that Mr C’s move to the role of senior government official would make the applicant’s situation any more vulnerable than before. The Tribunal observed that had Mr C wished to target the applicant he could have done so at any time while he was in the Fiji military and this did not occur: [35]
The applicant advised the Tribunal that he would not go back and live with his ex – wife but will support her with her court cases and financially because she is the mother of his children. Though the Tribunal accepted that the applicant may have been beaten by police as a result of his complaints about the circumstances of his ex – wife’s detention during the time he “genuinely believed” she had not committed any offence the Tribunal did not find the applicant’s claim plausible that he will again make a nuisance of himself at police stations in his ex –wife’s defence if he returns to Fiji. The Tribunal was not persuaded that the applicant will intervene with police on his ex – wife’s behalf particularly in view of the fact that the applicant now believed that his ex – wife had committed a number of offences involving fraud and his relationship with his ex – wife had deteriorated: [38]
The Tribunal was not satisfied that if the applicant returns to Fiji he will be targeted or harmed by Mr C, the military or the police due to his past association with Mr A and Mr B: [36] Nor was the Tribunal satisfied that if the applicant now returns to Fiji he will be targeted by Fiji security authorities and the police in particular over his past interventions in support of his ex – wife, nor that he will make a nuisance of himself with police in her support: [37]
The Tribunal noted that the applicant had taken care to ensure his own safety and well - being in divorcing his ex – wife, moving frequently to keep away from the Fiji military and hiding from people for fear of abuse, threats and discrimination. He has never had any charges laid against him nor any difficulties leaving or entering Fiji over many years of frequent travel even though he claims that the local police were aware of the link between him and his ex – wife. The Tribunal considered that any interaction the applicant may have had with police in the past on his ex – wife’s behalf were within bounds acceptable to them: [39]
The Tribunal considered the new claim introduced by the applicant in his recent statutory declaration that police may target him because of the criminal background of his brother and ex – wife unsubstantiated and speculative: [40]
The Tribunal concluded that in light of the multiple concerns outlined the Tribunal was not satisfied that the applicant had been truthful about his experiences in Fiji and the reasons he fears harm there. The Tribunal was not satisfied that the applicant will be harmed or targeted by the Fiji security authorities, including the military, the police or Mr C because of his past association with Mr A and Mr B or problems that resulted from this at the military camp in 2000, his interventions with police over his ex – wife’s fraud cases in the past, the criminal backgrounds of his ex – wife and his brother or “for any other reason.”:[41]
The Tribunal was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is a real risk that he will suffer significant harm: [42] The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36 (2) (a) of the Act nor is the applicant a person in respect of whom Australia has protection obligations under section 36 (2) (aa) of the Act: [43] – [45]. The Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
Applicable principles
A merits review of a Tribunal decision of a visa application is not amenable to judicial review unless it can be shown that the decision was vitiated by jurisdictional error.[5] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.
[5] [5] See subsections 474(1)(c), 476 (2) (b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. See also the discussion regarding section 474 of the Act in ARJ17 v Minister for Immigration and Border Protection [2017] FCA 263 per Rares J
Section 65 of the Act requires the Tribunal to grant a visa if the relevant criteria have been satisfied and refuse to grant the visa if not satisfied that the applicant has met the relevant criteria for the visa (see subsection 65 (1) (b) of the Act). The criteria for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
Pursuant to section 36 (1A) (b) of the Act an applicant for a protection visa must satisfy at least one criteria in subsection 36 (2). Under subsection 36 (2) (a) a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. Refugee is defined by section 5H (1) of the Act as (a) “in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”; or (b) “in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.”
Under subsection 36 (aa) of the Act a criterion for the grant of a protection visa is that the Minister is satisfied that Australia has protection obligations in respect of the applicant because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. Section 36 also sets out the criteria which must be satisfied for the grant of a protection visa where the applicant is a non – citizen in Australia who is a member of the same family unit as a non – citizen who holds a protection visa and meets one of the two criteria described above.
Grounds for review
The applicant contends that the Tribunal failed to consider the applicant’s relevant claims regarding the family connections of his ex – wife with the Attorney – General of Fiji in the context of his fear that she would contact the Commissioner of Police and/or falsely make claims against the applicant to police.
Further he contends that this failure to consider his ex – wife’s family connections undermined the credibility “of my fears regarding harm from the police or the Commissioner of Police” and also resulted in a failure by the Tribunal to consider “the full weight of my fears.”
The applicant contends that “had the Tribunal considered my claim about my ex – wife’s family connections to the Attorney – General it may have reached a more favourable decision about my claims to be at risk from the police or the Commissioner of Police.”
Applicant’s case
The matter was heard on 22 March 2019. A direction was made by the Court on 12 June 2018 for the parties to file written submissions. The applicant had not complied with that direction. At the hearing he represented himself whilst the Minister was represented by a solicitor. A discussion took place regarding a Court Book that was filed on 14 June 2018 with that document missing each second page. A later copy of the complete Court Book was served on the applicant and filed on 15 March 2019 and marked Exhibit C1. In light of that and the fact that the applicant had not filed written submissions an inquiry was made whether the applicant sought an adjournment. He did not. The applicant indicated he relied on his affidavit filed 20 April 2018 and was content to make oral submissions. The First Respondent relied on written submissions filed on 15 March 2019 supplemented by oral submissions.
The applicant submitted that the Tribunal failed to consider relevant evidence in particular the Tribunal member “did not consider my claim that my ex - wife is related to the Attorney General in Fiji and that claim was relevant to me as to the risk of harm to me from the police or the military.” He argued “my ex - wife has influenced what happens to me so therefore my claim was not fully considered by the Tribunal and may have affected the outcome of the case.” Regarding the contention that the applicant’s ex – wife had influenced “what happens to him” the applicant agreed there was no evidence before the Tribunal of any conduct (direct or indirect) on the part of his ex – wife establishing that she had in fact influenced what happened to him nor any evidence that his ex – wife had exerted influence through her connections with the Attorney – General nor any suspicion on his part that she had done so.
The Court inquired whether the applicant wished to expand on the comment in his second statutory declaration that his ex – wife “is family to the Attorney-General, Louise’s father’s sister is married to a guy who is a Muslim who is related to the Attorney-General and they all come from the same place.” In response the applicant submitted that “he knows a lot of powerful people in the government, the Police Commissioner, he was the military commander in camp where he was in charge of torturing and to be on the same soil, I go into anxiety I can’t focus.” The applicant was apparently referring to Mr C.
First Respondent’s case
The solicitor for the Minister relied primarily on her written submissions and submitted “the migration decision under review is not a ‘privative clause decision’ within the meaning given by subsection 474(2) of the Migration Act 1958.” The solicitor for the Minister indicated that the key claims by the applicant were contained in the second statutory declaration. She submitted that at paragraph [19] of the Tribunal’s reasons specific reference was made to the second statutory declaration and the content of that document was “explicitly considered” by the Tribunal a summary of which was contained in her written submissions at [6]. The Tribunal took the content of the second statutory declaration into account: see [23] to [39] of the Tribunal’s reasons. No issue was raised with respect to the country information contained in the Court Book. No allegation was made regarding any lack of procedural fairness when the matter was before the delegate, the solicitor for the Minister submitting that if any error had been made it could have been cured by a merits review.
The solicitor for the Minister submitted that the applicant’s central complaint was the lack of specific reference to the comment contained in the second statutory declaration about the applicant’s ex-wife’s family connections to the Attorney-General which the applicant said undermined the credibility of his fears of harm from the police or the Commissioner of Police. She submitted that the applicant’s fears of harm from police, the Commissioner of Police and the military were fully canvassed comprehensively in the Tribunal’s reasons. She submitted that the applicant’s claim to fear harm connected to his wife was considered fully with the applicant and is set out in the Tribunal’s reasons at [22] to [25]. In particular having addressed these matters with the Tribunal the applicant confirmed “he did not fear harm in Fiji for any other reason.” [25] She submitted that the Tribunal found that some of the applicant’s claims in relation to the risk of fear of harm were not credible and that finding may have informed later findings: [30]. She referred to paragraph [10] of her written submissions where she repeated the credibility findings made by the Tribunal.
The solicitor for the first respondent submitted that the Tribunal considered the aspect of the claim of fear of harm from police in connection with his ex – wife. In this context the Tribunal was prepared to accept that the applicant may have been beaten in the past in connection with standing up for his wife when he believed the charges against her of obtaining a financial advantage were not true. The applicant apparently changed his position with respect to those charges and in his second statutory declaration accepted his ex - wife had committed a number of offences involving dishonesty. The Tribunal did not accept that the applicant would continue to intervene on his wife’s behalf particularly in view of the deterioration in their relationship and his acceptance that his wife had been involved in criminal conduct. The Tribunal observed that the applicant had never had any charges against him nor any difficulties leaving or entering Fiji over many years of frequent travel even though local police were aware of the link between the applicant and his wife [39]. The applicant did not dispute he had travelled frequently as evidenced by movement documents between Australia and Fiji which he accepted as an accurate record.
The Tribunal set out its reasons why it was not satisfied that the applicant would be harmed or targeted by the Fiji security authorities including the military, the police or Mr C in the future [40] to [41]. The solicitor for the first respondent relied on the decision in Applicant WAEE v MIMA (2003) 75 ALD 630 French, Sackville and Hely JJ at [46] and [47] to support her contention that it was unnecessary to make any finding in relation to the applicant’s ex- wife’s connection to the Attorney-General as this alleged fact was subsumed by a finding of greater generality. Further she submitted that there was no direct claim by the applicant that the connection that his ex - wife’s relationship to the Attorney-General of Fiji could possibly cause the applicant harm or was the source of any fear of harm to the applicant. The applicant contended that if he returned to Fiji he was going to be harmed by police because he had been harmed by police in the past and he was going to be harmed by the military because he had been harmed by the military in the past. There was no evidence before the Tribunal at all that anything had occurred or was likely to occur because the applicant’s ex – wife “is family to the Attorney – General.”
Applicant’s reply
The applicant accepted that he had not established any connection between his wife’s familial relationship to the Attorney – General and his fear of harm. He submitted that a lot had been said by the solicitor for the first respondent about the police. He said he was not afraid of the police or the military except for one particular man who gave orders during his time on the army camp in 2000, Mr C.
Consideration
The Tribunal recognised that beatings, assaults and torture of political activists had taken place at the hands of security officials including police and military personnel in Fiji over recent years. The Tribunal accepted that as a former employee and acquaintance of Mr A the applicant may have attracted the attention of the military in 2000 on suspicion of his involvement in or knowledge of the attempted coup in May 2000. The Tribunal disregarded the inconsistency in evidence regarding the applicant’s claims as to when the alleged assaults on him took place.[6] The Tribunal indicated it was prepared to accept that the applicant may have been sexually assaulted as well as physically abused at the hands of military personnel in the course of investigation. The Tribunal found however that the applicant was not arrested or charged on any occasion and on his own evidence had no further encounters with the military since 2000.
[6] In his statutory declaration sworn on 25 May 2015 he said the incidents took place in early 2007
Credibility
The Tribunal assessed the veracity of the applicant’s claims in addition to assessing the objective material to determine whether there were substantial grounds for the applicant to believe as a necessary and foreseeable consequence of his removal from Australia to Fiji there was a real risk that the applicant would suffer harm and whether there was a real chance of the applicant suffering serious harm by police, the military and/or Mr C if he returned to Fiji. In undertaking that assessment the decision – maker was required to make conclusions of fact.
The Tribunal was not satisfied that the applicant had been truthful about his experiences in Fiji on the basis of inconsistency of evidence and the implausibility of his claims. The Tribunal rejected the applicant’s claim that the officer in charge of an army base where the applicant was detained in 2000 (Mr C) who was in 2016 appointed to a senior government position would target him or make his situation more vulnerable than before. The Tribunal was not satisfied that the applicant and Mr C had ever crossed paths [35]. The Tribunal rejected the applicant’s claim that he had witnessed Mr C giving orders prior to his interrogation on the basis that on his own evidence his head was covered prior to and during interrogation. The Tribunal was not persuaded that Mr C’s elevation to Police Commissioner would have any impact on the applicant nor would indicate that the applicant was at risk of harm. The Tribunal found that the claim that Mr C was the officer in charge of the army camp where the applicant was detained in 2000 was “opportunistic” and “unsubstantiated.” [34] Specifically the Tribunal was not persuaded that Mr C’s senior government position would have any impact on the applicant noting that Mr C could have targeted the applicant at any time when he was in the Fijian military. This did not occur.
The Tribunal found it implausible that the applicant would again make himself a nuisance to police in his ex – wife’s defence [38] given he now accepted she had committed offences of dishonesty and his relationship with his ex – wife had deteriorated.
The Tribunal rejected as unsubstantiated and speculative that the police may target the applicant because of his brother’s and his ex – wife’s criminal background [40].
The Tribunal noted that the applicant had enjoyed freedom of movement between Fiji and Australia on many occasions and had not encountered any difficulty in leaving or re-entering Fiji nor had any charges been laid against the applicant.
The Tribunal found that the applicant’s claims for protection have been contrived to achieve a migration outcome. The Tribunal affirmed the decision of the delegate of the Minister and refused to grant the applicant a protection visa.
Those findings were open to the Tribunal on the evidence. In MIEA v GUO & Anor (1997) 191 CLR 559 at 596 (referred to by the Tribunal at [13]) the High Court stated that “the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well – founded’ or that it is for reasons of political opinion. It remains for the Minister in the first place to be ‘satisfied’ and where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision – maker that all of the statutory elements are made out.” The Tribunal noted that a decision - maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169 – 170. Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant: Randhawa v MILGEA (1994) 52 FCR 437.
Failure to consider relevant evidence
The Tribunal considered the evidence contained in the second statutory declaration relied on by the applicant that raised a number of issues not previously raised in support of the application for a protection visa. Specific reference is made by the Tribunal to that document at [19] of the Tribunal’s reasons. At paragraph 28 of the second statutory declaration the applicant stated that his ex – wife’s “father’s sister is married to a Muslim guy who is related to the Attorney – General and they all come from the same place.”
The applicant contends that the Tribunal failed to consider the applicant’s claims regarding the applicant’s ex – wife’s family connection to the Attorney General in Fiji in the context of the applicant’s fear that his ex – wife will contact the Commissioner of Police and or falsely make claims against him to police. The claim by the applicant regarding his ex – wife’s connection to the Attorney – General was not sufficiently substantiated or clearly articulated to warrant specific reference by the Tribunal other than being subsumed in the Tribunal’s general comprehensive reasons. The absence of a specific reference to that comment does not give rise to jurisdictional error.
The applicant contended that the source of his fear of harm centred around his past involvement with police, Mr C and the military in Fiji. No claim was made by the applicant that his ex – wife could or would use any family connection to influence the Attorney – General to act adversely to his interests. Nor was there any evidence before the Tribunal that she had done so, had attempted to influence the Attorney – General through familial connections nor was there any suspicion on the part of the applicant that she would do so. The applicant expressly stated he had no reason to fear harm in Fiji other than with respect to his past dealings with police, Mr C and the military. The Tribunal concluded at [41] of its reasons that it was “not satisfied that the applicant was truthful about his experiences in Fiji and the reasons he fears harm there. The Tribunal is not satisfied that the applicant will be harmed or targeted in Fiji by the Fiji security authorities including the military, the police, Mr C because of his past association with Mr A and Mr B or problems that resulted from this at the military camp in 2000, his interventions with police over his ex – wife’s fraud cases in the past, the criminal backgrounds of his ex – wife and brother or for any other reason.”
I accept the submission of the first respondent that there has been no failure to consider a claim or an integer of a claim. It is now well established that “the inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue if resolved one way would be dispositive of the Tribunal’s review of the delegate’s decision a failure to dealt with it in the published reasons may raise a strong inference that it has been overlooked.”[7] The comment about the family connection to the Attorney – General may be subsumed within the Tribunal’s reasons.
[7] See Applicant WAEE v MIMA (2003) 75 ALD 630 French, Sackville and Hely JJ at [47]
Conclusion
The findings of the Tribunal were reasonably open to it on the evidence. I am satisfied that the Tribunal made no jurisdictional error. The application is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 18 June 2019
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