CAQ15 v Minister for Immigration

[2019] FCCA 1058

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAQ15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1058

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider all claims made by the applicant and breached s.424A of the Migration Act 1958.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 424A, 474, 477

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 236 FCR 593
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190
Plaintiff M174 of 2016 v Minister for Immigration & Citizenship (2018) 92 ALJR 481
Minister for Immigration & Border Protection v SZTJF (2015) 149 ALD 552

Applicant: CAQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2723 of 2015

Judgment of: Judge Cameron

Hearing date: 15 April 2019

Date of Last Submission: 15 April 2019

Delivered at: Sydney

Delivered on: 24 April 2019

REPRESENTATION

Solicitors for the Applicant: Mr R Chaudhry of Chaudhry Legal

Counsel for the First Respondent: Mr N Swan

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2723 of 2015

CAQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Fiji who arrived in Australia most recently on 10 March 2013. On 18 July 2013 he lodged an application for a protection visa with what is now the Department of Home Affairs, alleging that he feared persecution in Fiji because of his political opinion. On 15 April 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and on 3 October 2015 he applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.  

2. The applicant’s judicial review application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) but on 21 February 2019 he was granted an extension of time within which to bring this proceeding.

3. It should be noted at this point that the applicant’s wife was included in the visa application and subsequent application for review.  However, she was not a party to this proceeding.

4. In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

Claims before the Department

1. The facts alleged in support of the applicant’s claim for a protection visa were summarised by the Tribunal in its decision record.  As summarised by the Tribunal, the applicant relevantly made the following claims:

   a)he had known Colonel Mara since at least 1991.  Their families had close connections; 

   b)on 9 May 2011 he drove Colonel Mara to Pacific Harbour.  Shortly after this, he heard that Colonel Mara had escaped from Fiji to Tonga;

   c)he was questioned by two police officers four days after Colonel Mara’s escape;

   d)on 13 November 2012, whilst drunk, he confessed to his brother-in-law that he had helped Colonel Mara escape.  At the time his brother-in-law worked for then-Commodore Frank Bainimarama, the now elected Prime Minister;

   e)on 7 January 2013 he was taken to an army camp and questioned.  He was accused of supporting a traitor and beaten by a number of officers;

   f)he was released the following day and immediately applied for a visa to come to Australia;

   g)prior to his departure from Fiji, he and another brother-in-law provided the media with a video of an escaped prisoner being beaten by prison guards.  Shortly after he left Fiji, that brother-in-law was taken to an army camp and interrogated; and

   h)the Fijian authorities viewed him as a traitor and he would be harmed by them, especially the military, if he returned.

2. According to the Tribunal, the applicant provided various documents in support of his visa application, including a certificate of service dated 16 January 2013 signed by a named Major of the Republic of Fiji Military Forces (“RFMF”) certifying that the applicant was no longer a serving member.  He also provided a letter, addressed to him, dated 20 April 2014 signed by a named RFMF Lieutenant Colonel.  Relevantly, the letter advised that the applicant had been placed on a “wanted list” for fraudulent and seditious conduct and would be “liable for [the] maximum penalty” upon his return to Fiji.

3. The applicant and his wife appeared before the Tribunal on 1 October 2014.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)overall, the Tribunal found the applicant’s evidence unreliable and did not consider him to be a credible witness or his claims true;

   b)the Tribunal concluded that the letter of 20 April 2014 was not authentic and had been prepared by the applicant for use in the Tribunal hearing.  It noted that there were “many curiosities” about the letter, including:

   i)the letter and the earlier certificate of service were purportedly issued by the same organisation but did not have the same letterhead.  Specifically, while the letterhead for the certificate of service contained the usual details one would expect for an organisation – such as telephone number, telex number, facsimile number and a postal address – the letterhead for the letter of 20 April 2014 simply contained a box with the organisation’s name, spelt incorrectly, inside;

   ii)the letter was dated 20 April 2014 but was only produced to the Tribunal at the hearing on 1 October 2014.  By way of explanation, the applicant claimed that he had only received the letter “two months ago” as the Fijian military forces had had trouble finding him.  He claimed that he then sent the letter to his daughter in Fiji to have it “stamped by a legal officer, so he could use it in future cases”, and that the letter was only returned to him two weeks prior to the hearing.  However, the Tribunal did not find his explanation convincing;

   iii)the letter was purportedly stamped by a lawyer in Fiji who was employed at the Fiji Ministry of Justice.  Given the applicant’s history, the Tribunal found it “curious” that the applicant’s daughter would go to a government lawyer, rather than a private lawyer, to get the document stamped;

   iv)given that the applicant had arrived in Australia on 10 March 2013 and had had no involvement in Fijian affairs (at least in Fiji) for over 18 months, it was “curious in the extreme” that the letter would materialise four days after the delegate made his decision to refuse the applicant a protection visa; and

   v)the language of the letter was intemperate and immoderate which, in the Tribunal’s view, was unusual for a government document;

   c)the applicant provided inconsistent evidence about when he became aware of Colonel Mara’s escape and the circumstances surrounding his confession to his brother-in-law; and

   d)there were also inconsistencies between the applicant’s version of events and the version provided by his wife, particularly in relation to the visit by the military on 7 February [sic] 2013.  The Tribunal noted that the applicant’s wife had “clearly” been confused and had no real independent recollection of the events in question.

THE PROCEEDING IN THIS COURT

1. In his further amended application the applicant alleged:

   1.Failing to take into account a relevant consideration and/or failed to have proper regard to the evidence before it and/or failed to hear all the claims for protection as raised by the applicant.

   Particulars

   a.     The Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claim as it related to the torture video; and

   b.     The Tribunal failed to put the torture video claim to the applicant when it was required to do so in all the circumstances.

   2.Breach of ss.424A and 422(B)(3) of the Migration Act 1958.

   Particulars

   a.     Failing to provide the applicant in writing with particulars of the evidence of the secondary applicant which the Tribunal found was contrary and/or contradictory to the applicant’s evidence; and   

   b.Denied the applicant natural justice by failing to invite the applicant to comment in writing on the evidence of the secondary applicant which the Tribunal found was contrary and/or contradictory of the applicant’s evidence.

2. A third allegation was abandoned at the trial.

Consideration

Ground 1

1. The applicant’s claim for protection had two bases:

   a)his involvement in Colonel Mara’s departure from Fiji which had led to:

   i)his receipt of the threatening letter dated 20 April 2014, referred to earlier at [7]; and

   ii)his detention on 7 January 2013 (Colonel Mara escape claim”); and

   b)the Fijian authorities’ awareness of his involvement in the publication of the video showing mistreatment of a prisoner who had escaped from custody (“video claim”).

2. The applicant observed that when finding that his claims were not to be believed, the Tribunal failed to consider the video claim and based its finding on matters that related only to the Colonel Mara escape claim.  He contended that this amounted to error, alleging that the Tribunal had:

   a)failed to give proper, genuine and realistic consideration to the video claim; and

   b)failed to put the video claim to him as had been required of it in the circumstances.

   The applicant’s contentions were, in substance, that to discharge its duty to review, the Tribunal had to give greater attention and consideration to the video claim than its reasons disclosed had been given and it was an error to decide the review based on a detailed reasoning which dealt only with the Colonel Mara escape claim.

3. It is true that the Tribunal is obliged to have regard to all the claims a review applicant makes but it cannot be doubted that in this case the Tribunal was alert to the video claim.  This is apparent from para.16 of its reasons which was briefly summarised earlier at [6(g)].  However, the existence of a claim does not require that it be the subject of the sort of express analysis which it seems the applicant expected in this case.  That is because the video claim was irrelevant to the outcome of the review and did not need to be discussed more than it was.

4. The applicant’s claim to be entitled to protection was unsuccessful because the Tribunal did not believe him.  This conclusion was based on what the Tribunal found was the inauthenticity of documents ostensibly issued by the Fijian military forces which he had submitted in support of his claim, inconsistencies in his accounts of events and inconsistencies between his evidence and that of his wife.  It was not suggested that the Tribunal’s reasoning concerning the applicant’s credibility could have been affected by the video claim or the information advanced in its support. 

5. The video claim relied solely on the applicant’s evidence, no other source of information corroborating it, and its acceptance depended on the applicant’s credibility.  Therefore, once the Tribunal concluded that other aspects of the applicant’s evidence meant that he could not be believed, that meant that the essential factual precondition for consideration of the video claim did not exist.  In such circumstances, it became irrelevant to the outcome of the review and so the absence of detailed analysis of it was not required and was not, without more, evidence that it had not been considered, which was the complaint underlying this allegation:  Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 [47]. And as already noted, it is apparent that the Tribunal was aware of the video claim.

6. The allegation that the Tribunal should have put the video claim to the applicant was not supported by argument in the applicant’s written submissions or in addresses.  He did not seek to demonstrate that the Tribunal had an obligation of the sort pleaded and it is not apparent that it did.

7. For these reasons, the first ground of the further amended application is not made out.

Ground 2

1. The applicant’s wife’s evidence to the Tribunal concerning when the military called at the applicant’s home on 7 February (recte January) 2013 and the number of other times the applicant was visited at home by the police and the military police was different from the applicant’s evidence on these points. The Tribunal drew on those inconsistences to find that the applicant had not been truthful. The applicant submitted his wife’s evidence should have been put to him pursuant to s.424A of the Act and that the Tribunal was guilty of jurisdictional error because it was not. At the time of the Tribunal’s hearing, s.424A relevantly provided:

   424A Information and invitation given in writing by Tribunal

   (1)    Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   …

   (3)    This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application for review; or

   (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)that is non-disclosable information.

2. The authorities show that information in the Tribunal’s possession which relevantly is not governed by s.424A(3) must be given to a review applicant under s.424A(1) for comment or response if it is “in [its] terms a rejection, denial or undermining” of the applicant’s claims to be a refugee: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1196 [17] and:

   … in its terms be of such significance as necessarily to have led the [Tribunal] to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the protection visa.  (Plaintiff M174 of 2016 v Minister for Immigration & Citizenship (2018) 92 ALJR 481 at 496 [72])

3. None of the information referred to in this ground of the further amended application satisfies those criteria, being quite neutral in nature. Such materiality as the information had was limited to the conclusions which the Tribunal drew from comparing it with information proffered by the applicant, a reasoning process which does not engage s.424A obligations. The information itself would not have supported conclusions adverse to the applicant’s claims and such conclusions were only open because the applicant’s own evidence was divergent from his wife’s; see also Minister for Immigration & Border Protection v SZTJF (2015) 149 ALD 552 at 559 [31].

4. The Tribunal therefore had no relevant duty to the applicant under s.424A of the Act and so this ground is not made out.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  24 April 2019