CAJ16 v Minister for Immigration

[2017] FCCA 241

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAJ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 241

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – whether the Tribunal complied with the statutory criteria under s.91R of the Act – the Tribunal did not fail to consider and apply s.91R of the Act – no jurisdictional error identified – appeal dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 91S, 476.

Applicant: CAJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2008 of 2016

Judgment of: Judge Street

Hearing date: 15 February 2017

Date of Last Submission: 15 February 2017

Delivered at: Sydney

Delivered on: 15 February 2017

REPRESENTATION

Counsel for the Applicant: Mr O Jones of Counsel

Solicitors for the Applicant: Bardo & Erci Lawyers

Solicitors for the First Respondent: Ms K Hooper
HWL Ebsworth Lawyers

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2008 of 2016

CAJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 July 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Fiji and his claims were assessed against that country.

2. The applicant first arrived in Australia on 7 April 2013 as the holder of a subclass 456 visa. The applicant subsequently departed Australia on 17 June 2013. The applicant then applied for a Tourist Stream (OFFSHORE) (FA 600) visa on 15 September 2014. The applicant was granted that visa on 26 September 2014 and returned to Australia on 11 October 2014. It was on 23 October 2014 that the applicant applied for a protection visa.

The Delegate

1. The applicant claimed to fear harm in the workplace on the basis of his political opinion as a supporter of the Fiji First political party and on the basis of his Indo-Fijian ethnicity and Hindu religion. In support of the application for protection, the applicant provided an attachment by email dated 23 October 2014. That statement in the email identifies the applicant’s background and political affiliation and his amazement on arrival first in Australia.  That statement made reference to the proposition that he raised with friends whether he could have his issues addressed in Australia and that the applicant was strongly suggested to apply for protection, and that the applicant after carefully thinking about it decided to seek and claim protection in Australia, as he believed that he was a victim where Australia can protect him from further significant harm and help him.

2. The applicant asserted that he feared persecution and abuse, and that if he was returned he would be significantly harmed and arbitrarily deprived of his life and subjected to inhumane treatment. No particulars or detail of any actual abuse or harm was in any way identified in that statement.

3. The delegate made reference to that statement and the applicant claimed to be a victim in seeking Australia’s protection from further significant harm. The delegate pointed out that the applicant did not advance any specific claims related to any harm and mistreatment experienced in Fiji in the past. The delegate noted that while the applicant claimed to be a supporter of a political party he did not advance any claims related to his political opinion or any other Refugees Convention ground.

4. The delegate referred to the applicant’s favourable comments about the Australia society and that he did not advance any specific claims related to Fiji. The delegate made reference to the applicant’s claim to fear persecution and abuse in Fiji and that he would be significantly harmed if returned and arbitrarily deprived of his life and subject to inhumane treatment. The delegate noted that nevertheless the applicant failed to give any indication as to the basis for such a strong subjective fear of serious and significant harm.

5. The delegate noted that the applicant was asked questions at length in an interview about the preparation of his statement of claim and noted that the applicant’s responses were vague, inconsistent and evasive. The delegate did not accept that the applicant provided an open and honest account of his dealings with the person Aziz Dean.  The delegate did not accept that the statement of claims provided an accurate and honest outline of the harm subjectively feared by the applicant if he returned to Fiji. The delegate noted that during the interview the applicant indicated that he did not have a subjective fear of being arbitrarily deprived of his life, or of any other serious or significant harm.

6. The delegate invited the applicant to express in his own words why he feared returning to Fiji. The applicant indicated that he had experienced problems at work in Fiji on the basis of his race, being Indo‑Fijian and his religion, being Hindu. When asked to elaborate, the applicant advanced in relation to past harm, firstly that when working as a lorry driver, Indigenous Fijian’s threatened to harm the applicant if he did not pick them up in his truck. Secondly, the applicant advanced that when working as a lorry driver, trucks driven by indigenous Fijians were loaded first, and as an Indo-Fijian the applicant was forced to wait for his truck to be loaded. Thirdly the applicant advanced that when working at A-Team Electrical, the applicant had an Indigenous Fijian supervisor who would swear at him and make insults about the applicant’s religion.

Assessment of protection obligations for Refugee Convention Reasons

1. The delegate made reference to the fact that the applicant advised that he did not have a subjective fear of being arbitrarily deprived of his life, and that the applicant did not articulate any specific claims concerning a fear of serious or significant harm. The delegate was not satisfied that the harm feared by the applicant in the workplace constituted harm or mistreatment amounting to persecution. The delegate was not satisfied the harm feared was serious harm, and systemic and discriminatory conduct as required by s.91R(1)(b) of the Act, and s.91R(1)(c) of the Act, and was not satisfied feared amounted to persecution.

2. The delegate was not satisfied that the applicant’s subjective fear of serious harm in the future because of his race or religion was objectively supported. The delegate was not satisfied that the applicant has a real chance of serious harm if he returns to Fiji in the foreseeable future for a convention reason. The delegate was not satisfied that the applicant has real change of being persecution for Refugee’s Convention reason. The delegate was not satisfied the applicant’s fear was well-founded.

Assessment of protection obligations for complementary protection

1. The delegate turned to the issue of complementary protection and was not satisfied 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 the applicant will be subject to significant harm.

The Tribunal

1. The applicant was invited to attend a hearing on 5 July 2016 by the Tribunal. The applicant attended the hearing on that date to give evidence and present arguments. The Tribunal identified the background in relation to the determination of the applicant’s application and set out the relevant law. This included a reference to s.91R of the Act and s.91S of the Act which were noted as qualifying some aspects of Article 1A(2) of the Refugees Convention for the purpose of the application of the Act and the Migration Regulations 1994 to a particular person.

Consideration of the four key elements to the Convention definition

1. In relation to the four key elements to the Convention definition, the Tribunal set out in relation to the second element that the applicant must fear persecution. Reference is then made to s.91R(1) of the Act, in that persecution must involve serious harm to the applicant, following which there was in parentheses a reference to s.91R(1)(b) of the Act and systematic and discriminatory conduct with a reference to s.91R(1)(c) of the Act. The statement of the law then refers to the examples of serious harm as set out in s.91R(2) of the Act. Following the identification of those examples, the Tribunal referred to the High Court of Australia explaining that persecution may be directed against a person as an individual or as a member of a group.

2. Reference was then made to the fact that the persecution must have an official quality, in the sense that it is official or officially tolerated or uncontrollable by authorities of the country of nationality. Reference was made to the fact that the threat of harm need not be the product of government policy and that it may be enough that the government has failed or is unable to protect the applicant from persecution. Reference was made to the notion that persecution implies an element of motivation on the part of those who persecute for the infliction of harm. Reference was also made to the proposition that people are persecuted for something perceived about them or attributed to them by their persecutors. No criticism is advanced in respect of the identification of the law by the Tribunal. 

The Applicant’s claims

1. The Tribunal identified the applicant's claims and evidence. The Tribunal noted the applicant claimed his problems came from discrimination in the workplace. There was an assertion that the applicant gave some Fiji boys a lift and that they were verbally abusive towards him and sexually harassed him. It was asserted that the applicant was then unable to tell the delegate about this incident at the interview as there was a female Indo-Fijian interpreter present and the applicant felt uncomfortable and ashamed. 

2. The Tribunal noted that the applicant was asked whether he had suffered physical harm or abuse. The applicant alleged that sometimes he was pushed and threatened with being hit. The applicant also made reference to discrimination in workplace practices. Whilst working in the position of an electrical worker it was alleged that his supervisor made him physically dig where there was an excavator was available and made fun of the applicant’s religion and falsely accused him of stealing. 

3. The applicant alleged he also feared returning to Fiji because he voted for Fiji First. The applicant made reference to having a banner on his truck. The Tribunal noted that the applicant claimed that he was subject to threats of physical violence and sexual harassment by Indigenous Fijians at his workplace when he was a truck-driver. The Tribunal noted that the applicant had left that position a year before departing Fiji and sought employment as an electrician. 

Consideration of the applicant’s claims relating to ethnicity, religion and political activity

1. The Tribunal made reference to the applicant’s claim that he was discriminated against in the workplace and verbally abused by his supervisor due to his ethnicity and religion and feared that they would continue if he went back to Fiji. The Tribunal accepted that the applicant had experienced some discriminatory practices and verbal abuse and on one occasion sexual harassment during his employment as a truck-driver. The Tribunal accepted the applicant’s evidence that he experiences some discrimination in his place of employment. The Tribunal found that the applicant was never physically harmed, threatened with loss of life, torture or physical harm, sexual abuse or mistreatment at his workplace. The Tribunal noted the applicant claims to fear further discrimination, insults and possible harassment at his workplace. 

2. The Tribunal then made reference to the fact that the applicant did not claim to have suffered any serious harm and in brackets made reference to having regard to the examples in s.91R(2) of the Act as outlined in paragraph 10 of the Tribunal’s reasons. The Tribunal also made reference to the fact that the applicant did not claim to have suffered significant harm and again in brackets inserted a reference to having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act as summarised in paragraph 17 of the Tribunal’s reasons. Those observations that the applicant did not claim to have suffered any serious harm or significant harm were a reference to the applicant being in Fiji in the past.

3. The Tribunal made reference to the fact that the applicant does not claim to fear such harm if he returns to Fiji now or in the foreseeable future. The Tribunal then made reference to having considered the findings individually and cumulatively. The Tribunal was not satisfied there is a real chance that the applicant will be persecuted for reasons of his race, nationality, religion or membership of a particular social group (truck-drivers or electricians).  Furthermore the Tribunal was not satisfied that there is a real risk that the applicant will suffer significant harm in Fiji for reasons of his ethnicity, religion or his occupation. 

4. The Tribunal was not satisfied there is a real chance or a real risk that the applicant would suffer serious harm or significant harm as a result of his imputed or actual political opinion or political activities.

5. The Tribunal found that the applicant did not meet the criterion under s.36(2)(a) of the Act or s.36(2)(aa) of the Act. The Tribunal found the applicant was not a person in respect of whom Australia had protection obligations and affirmed the decision of the delegate.

Before the Court

1. The single ground of the amended application is as follows:-

   The sole ground of judicial review in the proposed amended application is as follows:

   The Tribunal made a jurisdictional error by failing to take into account a relevant consideration.

   Particulars

   a. The Tribunal accepted the Applicant’s claims that he had faced discrimination in Fiji (para.s 39-40 of its decision);

   b. The Tribunal noted that the Applicant had not specifically claimed serious harm within the meaning of s 91R of the Migration Act 1958 (Cth) (para 41 of its decision);

   c. The Tribunal failed to consider whether the Applicant had suffered serious harm within the meaning of s 91R, simply noting that such harm had not been claimed, which overlooked the fact that the Applicant was claiming refugee status and, therefore, claiming to fulfil the criteria necessary for that status, including serious harm; and

   d. The Tribunal failed to consider whether the Applicant had suffered serious harm within the meaning of s 91R otherwise than by reference to the merely inclusive examples set out in s 91R(2) of the Act.

The Applicant’s claims  

1. Mr Jones of Counsel on behalf of the applicant submitted that there were two errors that arose in relation to the Tribunal’s reasoning revealed by paragraph 41 of the Tribunal’s reasons. Firstly, Mr Jones of Counsel submitted that the Tribunal had not actually measured the findings made as against s.91R of the Act in determining whether or not the applicant faced a real chance that he would be persecution for reasons of his race, nationality, religion or membership of a particular social group or because of his imputed or actual political opinion or political activities. Mr Jones contended that the reference by the Tribunal to the proposition that the applicant does not claim to fear such harm if he returns to Fiji now or in the foreseeable future meant that the Tribunal had failed to consider the applicant’s claims and evidence and whether the applicant met the statutory criteria in relation to the persecution involving serious harm to the applicant.

Consideration

1. The Tribunal’s reasons are not to be read with a keen eye for error.  The Tribunal correctly identified the relevant law. The reference to the fact that the applicant did not claim to fear such harm as was identified by the Tribunal upon his return to Fiji now or in the foreseeable future was a finding of fact arising from the evidence before the Tribunal. That finding was open on that material and cannot be said to lack an evident and intelligible justification. There is no foundation for concluding that the Tribunal had failed to weigh the applicant’s claims and evidence against the statutory criteria. 

2. The correct identification of the relevant law of itself supports the proposition that the Tribunal should not lightly be found to have failed to carry out its statutory task in the conduct of the review. On the face of the Tribunal’s reasons, the Tribunal complied with its obligations in relation to the consideration of the statutory criteria under s.91R of the Act and was not deflected from that consideration by reference to the observation in paragraph 44 of the Tribunal’s reasons that the applicant did not claim to fear such harm. It was both relevant and material to the applicant’s claims for the Tribunal to make findings in relation to the applicant’s claims and alleged fear.

3. The second way in which Mr Jones of Counsel contended that there was a jurisdictional error, was the confinement of the deliberation by the Tribunal in its observations that the applicant did not claim to have suffered serious harm or significant harm as a result of the words in parentheses referring back to the correct statement of the law by the Tribunal. As the Tribunal’s reasons are to be heard as a whole and without a keen eye for error, the reference in paragraph 41 of the Tribunal’s words in parentheses referring back to paragraph 10 and paragraph 17 of the Tribunal’s reasons do not support a conclusion that the Tribunal failed to correctly apply the law that was correctly identified.

4. Mr Jones submitted that the reference to s.91R(2) of the Act meant that the Tribunal had failed to take into account the whole of s.91R of the Act or that the Tribunal failed to take into account s.91R(1) of the Act. Again, there is no warrant for reading the Tribunal’s reasons with such a keen eye for error. The Tribunal in its reasons correctly referred to the relevant law and there is no proper basis to find that the Tribunal had deflected itself to a consideration only of s.91R(2) of the Act in its evaluation and determination as to whether the applicant’s persecution involves serious harm to the applicant.

5. The Court notes that the ground raised in the amended application referred only to an alleged error in respect of a serious harm, but that the ground did not raise any alleged error in respect of the Tribunal’s reasoning in paragraph 41 of the Tribunal’s reasons relating to significant harm. The Court finds that the Tribunal did not fail to consider and apply s.91R of the Act in its determination of the applicant’s claims and that there was no inappropriate confinement by the Tribunal in its consideration of the application of s.91R solely to subsection (2) of the Act.

Conclusion

1. No jurisdictional error as alleged in the amended application as made out.  The amended application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 16 February 2017