Car15 v Minister for Immigration
[2018] FCCA 2286
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAR15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2286 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to consider an objection to relocation – whether the Tribunal failed to give clear particulars – whether the Tribunal failed to comply with s 424A of the Act – whether the Tribunal failed to consider the applicant’s claims with respect to complementary protection – whether the Tribunal conflated the issue of reasonableness – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 415, 424A, 424AA, 476 |
| Cases cited: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 |
| Applicant: | CAR15 BY HER TUTOR MZZTE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2260 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 3 August 2018 |
| Date of Last Submission: | 16 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Aleksov |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr N Wood |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The amended application is dismissed.
The applicant by her tutor MZZTE pay the first respondent’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
MLG 2260 of 2015
| CAR15 BY HER TUTOR MZZTE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
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 respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 September 2015 affirming a decision of the delegate not to grant the applicant child a Protection (Class XA) visa.
The applicant was found to be a citizen of Nigeria and applied for the Protection visa on 14 November 2013. The applicant child was born in Australia on 14 November 2013. On 3 July 2014, the delegate refused to grant the applicant a Protection visa. At the start of the hearing, this Court appointed the applicant’s mother MZZTE (MLG2711/2015) as tutor for the applicant.
The Tribunal
On 26 August 2013, the Tribunal affirmed the decision not to grant the applicant’s parents and sister protection visas. The claims advanced on behalf of the applicant reflect those previously advanced by her parents and sister, which were not accepted by the previous Tribunal. Those claims essentially included a fear of harm from a man called S. The Tribunal found that the entire claim of the applicant’s mother that she was promised to a Muslim man called S and the alleged subsequent incidents that followed were highly implausible and had not taken place. The Tribunal did not accept this central claim. The Tribunal also referred to including the medical evidence about the physical injuries and mental health problems in concluding that the applicant’s mother’s claims concerning S, and the alleged subsequent incidents did not take place. The Tribunal found S did not exist and that the applicant’s mother was never promised to him.
The Tribunal found that the applicant, her parents and siblings did not face a real chance of being persecuted or subjected to significant harm by a man called S, by anyone associated with S, by either of the applicant’s parents’ families, or by anyone else as a result of the mother’s decision to marry a person other than S.
Consideration of the applicant’s well-founded fear of persecution
The applicant also claimed to fear harm by reason of being subject to female genital mutilation in Nigeria. The Tribunal found that the applicant, if returned to her father’s village, faces a real chance of female genital mutilation which would amount to persecution. The Tribunal identified that it must consider whether the risk is localised or whether it is one the applicant would face throughout Nigeria, including Lagos. The Tribunal found that the risk of harm is confined to the applicant’s parents’ home villages and that there is no real chance or real risk of the applicant being subjected to female genital mutilation in Lagos, either by her parents or by anyone else.
The Tribunal referred to the fact that it was not disputed that both parents had previously lived in Lagos for significant periods of time and the applicant’s father had lived there for about 10 years. The Tribunal referred to Lagos being the most popular city of Nigeria, and found that the applicant’s parents would not go into hiding on return and that they have a level of familiarity with the city.
The Tribunal found that both parents can return to Nigeria and find employment as they were employed before coming to Australia. The Tribunal observed that it does not consider that the low quality of healthcare or education falls within persecution or significant harm. The Tribunal referred to submissions in relation to reasonableness of re-location in respect of education, health and accommodation. The Tribunal noted that the applicant’s representative submitted that it was health and education only that were protection claims if the Tribunal found that the applicant could return to Lagos.
The Tribunal found the applicant will have a normal life with her parents in Lagos and that she will grow up in a loving and caring environment. The Tribunal found the applicant will not face a real chance of persecution for any Convention reason, including reasons of being a Nigerian woman/girl, being a Nigerian woman/girl of Igbo ethnicity, being a person/girl/woman born outside Nigerian, being a person/girl/woman born in the West, being a person/woman/girl with a foreign or Australian birth certificate, being a person/woman/girl without a Nigerian birth certificate, being a returnee from the West, being a child from a marriage of an Igbo and Osu, or a mixed marriage, or from the parents’ respective families. The adverse finding extended to any other combination of the applicant’s gender, ethnicity and other personal circumstances, including being born in Australia, and attributes including not having a Nigerian birth certificate, general human rights conditions for children in Nigeria and being a member of a family of the mother who fears harm for reasons of being a member of particular social groups: Nigerian women, Nigerian women who refuse an arranged marriage, Nigerian women who marry without consent, Nigerian women who disobey husbands/brother/family and non‑Osu woman who married an Osu man.
The Tribunal concluded that the applicant does not face a real chance of persecution for a Convention reason in Lagos and turned to consider whether the claimed unavailability of appropriate healthcare, education or accommodation could amount to one or more of the types of significant harm.
The Tribunal referred to the need to consider the applicant’s circumstances personally. The Tribunal referred to the fact that the applicant has not provided evidence, being a child, and that the Tribunal has not found any country information in support of a claim that Nigerian authorities would deprive the applicant of treatment available to the public generally or that there would be an element of deliberateness or discrimination in the potential inability of the healthcare system to treat the applicant in an adequate manner to ensure that she survives.
The Tribunal found the inability of authorities to provide the applicant with the necessary medical treatment would not constitute arbitrary deprivation of life and found that it did not constitute significant harm as defined in s 36(2A)(a) of the Act. The Tribunal referred to the element of intent in relation to what constitutes cruel or inhuman treatment, or degrading treatment or punishment. The Tribunal found, in the absence of cogent evidence to the contrary, that the Nigerian authorities would not intentionally withhold or deny medical treatment to the applicant if and when she needs it. The Tribunal’s reasons are not to be read with a keen eye for error, and there is an obvious typographical error in the omission of the negative “not” in paragraph 140. The Court has also taken into account paragraph 142 of the Tribunal’s reasons as supporting the typographical error found in paragraph 140.
The Tribunal referred to the applicant’s education and alleged risks and the young age of the applicant. The Tribunal concluded that the applicant can relocate with her family to Lagos. The Tribunal found the applicant is not going to be forced to go to an under resourced rural school, but instead will have access to whatever facilities are available in Lagos. The Tribunal found the same applies in relation to education and accommodation in the absence of cogent evidence to the contrary. The Tribunal found that the Nigerian authorities would not intentionally deny the applicant access to education or accommodation.
The Tribunal referred to assertions in relation to the applicant’s schooling and risk of physical and sexual abuse, and slavery, and found they were bare assertions. The Tribunal was not satisfied the applicant faced a real chance or real risk of sexual or physical abuse by anyone in Lagos. Having assessed the applicant’s circumstances individually and cumulatively, the Tribunal found the applicant will be able to live a normal life with her parents in Lagos and that she will not face a real chance of persecution for any Convention reason.
The Tribunal referred to having considered the applicant’s claims individually and cumulatively and was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Nigeria, that there is a real risk the applicant will suffer significant harm in Lagos.
Reasonableness of relocation
The Tribunal referred to the issue of reasonableness of relocation and expressly referred to the requirements of s 36(2B) of the Act. The Tribunal found the applicant’s parents’ health issues, that the Tribunal had considered, are not of such a serious nature that one of them may pass away or become physically or mentally incapacitated to an extent that they are unable to look after the applicant or be unable to look for work and lead normal lives as they did before they departed Nigeria. The Tribunal referred to the father’s part-time work and the father’s health. The Tribunal found even if the applicant’s father is only able to work part-time on return to Nigeria that the applicant’s mother will have the capacity to work full-time. The Tribunal found the applicant does not face a real chance of persecution or real risk of significant harm for reasons of her parents’ health problems.
The Tribunal referred to what had occurred to the applicant’s father’s business and the father’s claim he was abducted in 2011. The Tribunal did not accept this claim and found the applicant’s father fabricated this aspect of his claims to exaggerate the family’s vulnerability on return to Nigeria. The Tribunal did not accept that the applicant’s father does not possess any meaningful work experience and found, whilst he is not as well‑educated as the applicant’s mother, he has several years of work experience. The Tribunal found the applicant’s mother is well educated with a law degree and with relevant work experience in Nigeria. The Tribunal referred to the submissions advanced and noted that both parents speak English and have previously lived in Lagos.
The Tribunal found on all the evidence before it and taking into account the individual circumstances of the applicant, her parents and sister, that it would be reasonable for the applicant to reside in Lagos with her parents.
The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act because the Tribunal found that it was reasonable for the applicant to relocate within Nigeria to Lagos. Accordingly, the Tribunal affirmed the decision under review.
Before this Court
The grounds in the amended application are as follows:
1. The Tribunal failed to consider an objection to relocation, being that the applicant would be homeless if returned to Lagos.
2. The Tribunal failed to give “clear particulars”, or alternatively, “clear particulars, of information that the Tribunal considered would be the reason or part of the reason for affirming the decision on review.
Particulars
i. During the course of the oral hearing, the Tribunal told the applicant’s representative that the decision of the Tribunal in relation to the applicant’s mother, father and sister was information that would be the reason or part of the reason for affirming the decision on review.
ii. The applicant’s agent asked the Tribunal to give clear particulars of this information, and specifically, which aspects of the previous Tribunal decision were adverse to the applicant’s claims.
iii. The Tribunal said, in essence, that all of the previous decision was adverse information and did not give any further particulars.
iv. This does not amount to “clear particulars” of information within the meaning of s 424AA of the Migration Act 1958 (Cth) (the Act).
v. Alternatively, this does not amount to “clear particulars” of information within the meaning of s 424AA of the Act.
vi. A failure to comply with s 424AA of the Act is a jurisdictional error.
4. The Tribunal failed to deal with the following issues in relation to relocation: (i) the situation with respect to an absence of a Nigerian birth certificate (ii) the concerns arising from the education and health services available.
5. The Tribunal failed to comply with s 424A, in that its purported use of s 424AA was not available given that the applicant was a minor who could not understand anything (let alone English), and having regard to the mechanism under s 441A.
6. The Tribunal failed to consider the applicant’s claim with respect to complementary protection issues as may arise from the fact that she could not obtain a Nigerian birth certificate.
Mr Aleksov, of counsel on behalf of the applicant, indicated that he wished to rely on a new proposed ground 7, relevantly as follows:
7. The Tribunal failed to make adequate findings to rely upon section 36(2B).
After the Court reserved its decision on 3 August 2018, a further amended application was filed with a different ground 7. No leave was granted to do so and no leave of explanation was given seeking leave to vary the ground. In the circumstances, leave is not granted to rely upon the further amended application or the reformulated ground 7. Even if the Court were to grant leave there is no substance in the reformulated ground that, in considering complementary protection, the Tribunal under s 36(2)(B)(a) of the Act conflated the issue or reasonableness of the applicants relocation with the reasonableness of the parents relocation. This is because the Tribunal correctly identified the relevant law in relation to complementary protection, including significant harm and the reasonableness of relocation by express reference to the applicant in paragraphs 16, 17 and 18 of the Tribunal’s reasons. Further, the finding in paragraph 153 reflects no erroneous application of the law in respect of the applicant as alleged in the reformulated ground 7. Nor does the reasoning in paragraphs 147 to 153 read as a whole and without a keen eye for error reflect any conflation or misconstruction as alleged. Accordingly, even if leave were granted no jurisdictional error as alleged in the reformulated ground 7 is made out. The Court has taken into account the submissions of both parties provided pursuant to the leave of the Court after reserving.
Ground 1
Mr Aleksov submitted in relation to ground 1, that the Tribunal was required to consider all objections as to relocation advanced on behalf of the applicant. Mr Aleksov submitted that there was a clearly articulated objection to the reasonableness of relocation to the effect that the applicant would be homeless if returned to Lagos. Mr Aleksov submitted that this had not been considered by the Tribunal. Mr Aleksov noted that the Tribunal accepted that the applicant did not have a Nigerian birth certificate, but submitted that the Tribunal did not consider the significance of this issue and the reasonableness of relocation.
It is apparent from the Tribunal’s reasons as summarised above that the Tribunal took into account the absence of the applicant having a Nigerian birth certificate, as it was expressly referred to in paragraph 129. The Tribunal’s findings in relation to the applicant’s claims under the Refugees Convention are able to be taken into account on a fair reading of the Tribunal’s reasons as a whole in respect of the applicant’s claims to complementary protection.
The Tribunal expressly referred to having considered all of the applicant’s claims individually and cumulatively and not being satisfied that there were significant grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will suffer significant harm in Lagos, as identified in paragraph 146.
The Tribunal did not have to repeat each of the findings or refer to every item of evidence in its determination in respect of complementary protection. A fair reading of the Tribunal’s reasons reflect it taking into account the submissions made in relation to education, health, and accommodation. The adverse findings made in paragraph 129 plainly subsume and are dispositive of the alleged claim advanced in relation to homelessness and in relation to the claim concerning not having a Nigerian birth certificate.
There is no substance in the contention that the Tribunal failed to take into account the applicant’s alleged claim of homelessness. Further, the Tribunal expressly referred to the parents’ experience of having lived in Lagos before. The adverse finding by the Tribunal in relation to the applicant’s claims concerning accommodation, which included homelessness, was dispositive of the applicant’s claim and open on the material before the Tribunal. No jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, Mr Aleksov submitted that the Tribunal had not provided clear particulars of information that was the subject of an alleged obligation under s 424A of the Act. Mr Aleksov also submitted that on a fair reading of the transcript of the hearing, the Tribunal had failed to comply with the obligation under s 424AA(1)(b)(ii) of the Act. In relation to the latter submission, the transcript expressly records the Tribunal informing the applicant, who was represented at the hearing, and his mother was also present, that the Tribunal was required under the Act to invite the applicant to comment and respond on certain information which the Tribunal considers would be subject to comments or response. The transcript reveals that the Tribunal then again put:
…so in conducting this review the Tribunal is required by the Act, the Migration Act, to invite you to comment and respond to certain information, which if accepted would be the reason or part of reason for affirming the decision under review.
Mr Aleksov submitted that there was a failure to comply with the requirements of s 424AA(b)(ii) of the Act because that statement occurred at the commencement of the putting of the information to the applicant rather than at the end. There is no substance in that proposition. On the face of the material before the Court, the Tribunal complied with the requirements of s 424AA(b)(ii) of the Act.
The substantive argument that Mr Aleksov addressed then was whether or not for it to be said that there was compliance with s 424AA(1)(a) of the Act. The Tribunal in the transcript identifies that there had been a differently constituted Tribunal that had made a negative decision affirming the decision of the Department on 26 August 2013. The Tribunal noted that there were disagreements with that decision and that issue had been taken into account with many of the findings. The Tribunal referred to having listened to the tapes, including the evidence of the witnesses, but having reviewed all the evidence and having referred to asking further questions about the marriage certificates and the medical certificates and medical documents, did not propose to seek further evidence from the applicants about past events, which the Tribunal found that the applicants had ample opportunity in the past to provide oral and written evidence.
The Tribunal then stated, having carefully assessed the evidence, and expressed agreement with many of the previous Tribunal findings that the Tribunal may not accept claims relating to S, including that either of the applicant’s parents were harmed in the past, that either of the applicant’s parents were abducted, that either of the applicant’s parents had to flee Togo, that the applicant’s parents relatives were opposed to the marriage, and that the applicant’s parents have a subjective fear of returning to Nigeria. The Tribunal explained that if the Tribunal did not accept these claims, the Tribunal may find that S did not exist and that the applicant was not going to be persecuted or subjected to significant harm by S or anyone associated with S. The Tribunal explained it may further find that the applicant is not going to have to hide from anybody, whether it is S, anyone associated with S, or the applicant’s parents families. The Tribunal explained that it may find that the applicants can relocate to Lagos, where they will be able to look for employment, and that the applicant will be able to go to school when she is the right age and receive the medical care she needs.
The Tribunal also observed that based on the evidence from the previous hearing and the previous case, the Tribunal may also find that the parents are not credible witnesses. The Tribunal explained that that information, if accepted, would be the reason or part of the reason for affirming the decision of the Department in relation to the applicant. The Tribunal then asked whether there is an understanding as to what the adverse information is and why it is relevant. The applicant’s representative responded saying:
So you’re saying the entire decision and the assessment previously is the adverse information?
The Tribunal member responded: “Yes.”
The Tribunal member then referred to whether or not the applicant needed to respond to that entire previous assessment, even though they had already put responses to that already. The Tribunal member referred to having considered the responses that had been provided and referred to understanding that the adverse information, put in that format, makes it difficult to respond, but referred to a provision in the Act which allows the Tribunal to take one decision, if one applicant makes an application and then the same applicant makes an application for a protection visa again, the Tribunal can take the previous decision to be correct. In this particular case, the Tribunal referred to the applicant being a different person, being the applicant daughter who has applied, so that s 415 of the Act could not be used in this way.
The Tribunal referred to the fact that the applicants had had two hearings with the Tribunal and provided many statutory declarations and provided many submissions, and that these had been assessed by the Tribunal itself and made clear that the Tribunal was not holding that the applicants were not credible witness because of the decision of the earlier Tribunal. The Tribunal made it clear that the Tribunal was considering the evidence for itself but may reach the view that the applicant’s parents are not credible witnesses. The applicant’s representative made submissions then that the Tribunal did not accept that S existed at all. It is clear that the representative understood the consequences in terms of not accepting the applicant’s parents’ evidence as credible and referred to some medical evidence that might have been obtained fraudulently. The Tribunal member responded:
Well, if you view is that this is way too general and you cannot respond, I might have too go away and write a very long 424A letter outlining each individual issue that is of concern and most of them would be issue that were of concern to the other Tribunal and give you an opportunity to respond to them.
The Tribunal was of the view however, that these matters have been covered already in an incredible level of detail. The applicant’s representative then responded that the applicant’s case had been put as high as it could and argued that accepting part of the claim until the mother went to Lagos, was not logical in submitting that the applicants’ previous evidence had been consistent, and informed the Tribunal that the representative did not see how the applicants could respond again to the decision if that is the sort of adverse information that is put, because that was what has been done.
The Tribunal then referred to the possibility of being able to put in writing to the applicant, covering all the grounds that had been covered by the previous Tribunal, and the applicant’s representative referred to country information. The Tribunal made clear the possibility that the Tribunal may follow a finding from the previous Tribunal, because the Tribunal agrees, having looked at the material for itself and all the evidence, not because the other Tribunal member made an adverse finding, that the Tribunal was applying itself to all the evidence.
The applicant’s representative referred to having put on submissions in evidence to contradict the findings that had been made by the previous Tribunal and asked for what concerns there were in relation to the terms of the response that had been put on by the applicants to those issues, and that that would be the only way that the applicant could respond to that adverse information.
The Tribunal referred to this probably giving rise to the applicant’s covering ground that had already been covered, but saying that once there has been a change in Tribunal members, it is the same case, and referred to being a new Tribunal member taking into account concerns of the previous member. The representative referred to the applicants not putting forward their previous case and saying, “assess this and make a different decision.”
The Tribunal indicated that that is the substance of what is being advanced, and the applicant’s representative stated: “We’ve actually given reasons why the previous decisions shouldn’t be relied on or that it has not followed the law correctly.” The Tribunal made clear that the Tribunal understood that it could not simply copy the decision of the past Tribunal and had to turn its mind to all the claims for the Tribunal itself. The applicant’s representative then indicated that there was nothing further that could be put in responding to the earlier Tribunal’s decision if that is the adverse information that is being put.
The applicant’s representative referred to that is how the applicant’s case is being run with both a response to the previous decision and also raising claims that relate to the applicant. The representative said:
…if that is the only adverse information, there is no further response we can put forward that hasn’t been done in the submissions, and the statements to the Department and now the submission to your Tribunal and of course here at the hearing today.
The representative then referred to the potential finding that the applicant could return to Lagos. The representative then put submissions that it was unreasonable for the applicant parents to return to Lagos and that there had been put on submissions in relation to those risks. The Tribunal member then referred to the mother and asked:
Did you wish to say anything about what I said earlier? Before I started the discussion with the representative about the decision of the previous Tribunal and that I may not accept essentially most of your claims, virtually all of the claims that you have made to do with S and your families. Did you wish to say anything? Did you wish to have a short break with the representative and then say something? Or did you wish to just leave it for now and I can go away and think about whether I should send something in writing that is more detailed, a more detailed letter to you about the exact things that I may not accept?
The Tribunal member then identified the applicant could speak to the representative and then respond, or could just say what the applicant wanted to say, or just say that the applicant wanted to receive a detailed letter and respond in her own time. The applicant’s mother referred to being here for the daughter applicant and the Tribunal member confirmed that to be the case.
The applicant mother asked:
…is it right for all the claims of the little girl to be rejected because the member I met before did not believe we were credible witnesses?
The Tribunal member then said:
Perhaps I didn’t explain very well what I am considering doing. I have looked at your claims, I have looked at the files for myself.
The Tribunal member made clear:
If I reject your claims that would be my view.
The Tribunal referred to the different Tribunal member having made a decision two years ago and that that member no longer works with the Tribunal. The Tribunal stated that it is not saying it may reject the applicant’s claims about S and about the applicant’s families because the earlier Tribunal rejected them. The Tribunal said that it may reject the claims about S and the families because it had looked at all the evidence itself.
The applicant mother engaged with the Tribunal member, and the Tribunal then indicated that the applicant’s mother’s evidence may not be accepted. The Tribunal member referred to whether or not the Tribunal would write to the applicant with a detailed dot point. The applicant’s representative responded:
It’s only necessary if you don’t accept the submissions that we’ve made in response to the findings of the Member. If you do, then it’s not necessary because they’ve had a chance to make comment on your questions today. None of those other responses that we’ve put forward in response to the previous decision have been questioned today.
The representative submitted that:
It’s also not necessary if it does not matter whether those claims are relevant where if they’ve found as being returnable to a particular village and the question is reasonableness of relocation to Lagos then the questions in relation to S aren’t relevant.
The Tribunal member identified that the question in relation to S would still be relevant because it may be that the Tribunal would find that the father is not telling the truth about having no contact with his brother, it may find that the father would be able to go back and resume his employment, and may find that the mother will not be in any worse position than any other law graduate as being out of work for four years, and she will not have to hide and that she can go out and look for a job.
The applicant’s representative referred to the credibility issues, the adverse credibility findings, and contended that they were made incorrectly, and that the findings did not follow the correct guidelines about how credibility should be assessed. The representative submitted that the question was whether they were credible witnesses, and if there are reasons in support of the adverse finding. The representative submitted that if the reasons are the same as those previously put forward in the earlier decision, then the response that has been put forward in those findings needs to be considered.
The representative submitted that if the responses are not going to be followed then there needs to be a chance to respond to that, and those things have been put to the applicant or the representative today. The Tribunal asked whether the applicant was seeking further responses to the responses already provided. The representative submitted that if the responses have not been accepted because of what has been put in the past, the applicants have not had a chance to respond today, and submitted that the representative was not in a position to be sure what credibility issues there were on the basis of the previous evidence and whether they were the same as the previous member had identified or whether they were entirely different.
The Tribunal member indicated that they were not entirely different, and the Tribunal made clear that the Tribunal member would go through each of the findings when drafting the decision in determining whether or not there would be an adverse finding. The Tribunal member raised that Lagos would be considered a place to which the applicants may be able to relocate. The representative referred to the proposition that on arrival in Lagos they would be homeless and need to contact their families, and took issue with the credibility submission that the member thought there had been contact with the brother. The Tribunal member explained that if the story in relation to S was not accepted then the Tribunal member could not see any reason why the father would not have been in contact with the brother.
The applicant’s representative referred to the medical evidence. The Tribunal member then engaged with the father and observed that the Tribunal member had not decided whether the father had lied, but if the Tribunal found that the father had made up the story about S, then the Tribunal may find that the father had been in contact with the brother because there would be no reason for hiding from the brother.
The Tribunal member repeated the importance of determining whether or not the claims of S were true. The Tribunal member referred to not having decided whether or not to write a lengthy s 424A letter outlining particular issues that are of concern, that the father maintained he had told the truth. The Tribunal member referred to providing an opportunity to put on further submissions, and that the Tribunal member had not decided whether to send a s 424A letter.
Mr Aleksov also referred to the issue of homelessness raised in the written submissions at page 369 and referred to a displacement policy and country information in that regard, as well as to housing rights, and submitted that it was almost certain the family would be homeless. The submissions dated 25 August 2015, were expressly referred to in paragraph 34 of the Tribunal’s reasons as material that had been considered by the Tribunal.
Mr Wood of counsel for the first respondent submitted that the Court should find that the decision of the earlier Tribunal was information that the applicant had given for the purpose of the application for review and was information that the applicant gave during the process that led to the decision that is under review within the meaning of s 424A(3)(b) and (a) of the Act.
Mr Aleksov submitted that there was no express identification of the previous Tribunal’s decision dated 26 August 2013 being provided by the applicant to the Tribunal. It is clear from paragraph 34 that the Tribunal did have before it the previous Tribunal’s decision record of 26 August 2013.
The first respondent submitted that the applicant did give, within the meaning of s 424A(3)(b) of the Act, the decision of the earlier Tribunal to the current Tribunal. Mr Aleksov contended that the Court should conclude the contrary as there was no express statement recording the giving of the decision to the Tribunal. I accept the first respondent’s submissions. In that regard, the statutory declaration by the applicant’s mother expressed addressed a heading “Response to RRT process and decision” following which paragraph 5 to paragraph 29 were advanced addressing, in particular, the decision record of the Tribunal member by reference to particular paragraphs. That reference to the decision record I find was a reference to the previous Tribunal, a decision of which was referred to in paragraph 34 of the current Tribunal’s reasons.
I find the provision of the statutory declaration on behalf of the applicant’s mother was the giving of the Tribunal the previous Tribunal decision record to the current Tribunal. I do not accept that the reference to the decision record in the statutory declaration provided to the Tribunal should be read in a manner that it was not the giving of the earlier Tribunal’s reasons to the current Tribunal. I find the applicant included the earlier Tribunal decision and intended the current Tribunal to look at and take into account that earlier Tribunal decision. I find the applicant intended the current Tribunal to take into account the information to be denied from the earlier Tribunal decision for the purpose of the review, see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] (Gray J); NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [63] (Young J, with whom Gyles and Stone JJ agreed). In these circumstances, there is no obligation upon the Tribunal to comply with the requirements of s 424AA of the Act because the applicant gave the decision record to the current Tribunal for the purpose of the review, and, accordingly, the content of the decision record is not information enlivening any obligation under s 424AA(3)(a) of the Act.
But for the applicant giving, as the Court has found, the earlier Tribunal decision to the current Tribunal, there was force in the contention advanced by Mr Aleksov that clear particulars had not been given within the requirements of s 424AA(a) of the Act. While I accept that the requirements of s 424AA of the Act in relation to the provision of clear particulars will depend upon the circumstances of the particular case, the reference to the adverse decision of the earlier Tribunal in reference to the applicant’s mother’s claims concerning S and the applicant’s father’s claims concerning communication with his brother, was at too high a level and did not give clear particulars of the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review.
The continued deliberation revealed in the course of the transcript to the Tribunal considering further the possibility of sending a letter under s 424A of the Act is consistent with the Tribunal not having given clear particulars. The applicant did, however, have a real and meaningful hearing as the applicant understood the credibility issues in relation to S, as well as in relation to the father’s communications with the brother.
Mr Aleksov referred to the Tribunal’s reasons and the Tribunal asserting in paragraph 77 that the Tribunal complied with s 424AA of the Act and that it may not accept the claims in relation to S. No jurisdictional error as alleged in ground 2 is made out.
Ground 4
In relation to ground 4, the Court Book included the Australian birth certificate. The Tribunal clearly took the birth certificate into account as identified in the Tribunal’s reasons at paragraph 95, as summarised above. The Tribunal’s reasons also reflect taking into account concerns in respect of education and health services, as summarised in the Tribunal’s reasons referred to above. No jurisdictional error as alleged in ground 4 is made out.
Ground 5
In relation to ground 5, the provisions of Provision 4 of Part 7 of the Act apply to a child applicant and for the reasons earlier given, the child applicant’s guardian, in the present being the mother, gave on behalf of the child the earlier Tribunal review decision to the current Tribunal within the meaning of s 424A(3)(b) of the Act. I reject the submission that s 424A of the Act has no application because the applicant is a minor. The evidence before the Tribunal established that the mother had the day-to-day care and responsibility of the applicant. No jurisdictional error is made out by ground 5.
Ground 6
In relation to ground 6, for the reasons earlier given, the Tribunal made dispositive findings in relation to the applicant’s claims concerning not having a Nigerian birth certificate. They were expressly referred to, as referred to above, in the Tribunal’s reasons in paragraph 95. That adverse finding was open to the Tribunal and cannot be said to be lacking in any intelligible justification. No jurisdictional error is made out by ground 6.
Ground 7
Ground 7 of the amended application which the applicant sought to rely is relevantly as follows:
7. The Tribunal failed to make adequate findings to rely upon section 36(2B).
In support of ground 7, the applicant submitted that the Tribunal conflated the issue of reasonableness of the applicant’s relocation with the reasonableness of the parent’s relocation. For the reasons already given above, no such error of this kind can be made out.
The applicants also submitted that the Tribunal failed to make findings dealing with the applicant as an infant and the adequacy of care of the applicant in the postulated place of relocation. It was submitted that this required the Tribunal to make a finding that the parents would relocate to Lagos. The Tribunal did properly consider the reasonableness of relocation for the infant applicant and her care in the postulated place of relocation with her parents. The Tribunal was not required to make a finding that the applicant or her parents would relocate. Further in any event, the Tribunal did make a finding in that regard in paragraphs 129 and 141 to the effect that the parents and applicant would relocate to Lagos. It was not necessary for the Tribunal to repeat that finding in dealing with complementary protection. There was no failure by the Tribunal to make adequate findings as alleged in ground 7. No jurisdictional error is made out by ground 7.
Conclusion
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 7 September 2018
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