CCE15 v Minister for Immigration

[2017] FCCA 2592

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCE15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2592

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the applicant was denied procedural fairness – whether the Tribunal misunderstood or misapplied the complementary protection criterion for the grant of the visa – whether the Tribunal breached s.424A of the Act – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 425, 476

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494

Applicant: CCE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2788 of 2015

Judgment of: Judge Nicholls

Hearing date: 14 August 2017

Date of Last Submission: 14 August 2017

Delivered at: Sydney

Delivered on: 2 November 2017

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms C Saunders of DLA Piper Australia

ORDERS

1. The application made on 13 October 2015 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $ 4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2788 of 2015

CCE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 13 October 2015 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), which, on 25 September 2015 affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa the applicant.

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – CB”, “RE1”).

Background

1. The applicant is a citizen of Fiji (CB 15). He has made a number of visits to Australia since 2009 (CB 17). Following his arrival in September 2012, he applied for a protection visa which was received by the Minister’s department on 6 December 2012 (CB 1 to CB 36). He claimed to fear harm from the Fiji military (CB 22). The application was refused by a Ministerial delegate on 14 March 2013 (CB 51 to CB 68). This was affirmed by a differently constituted Tribunal on 30 August 2013 ([7] at CB 179).

2. The applicant departed Australia and then returned on 5 November 2013 (CB 121.4). He again applied for a protection visa on 29 January 2014 (CB 69 to CB 96). He again claimed to fear harm from the Fiji military. He also claimed to fear harm because of a land dispute in 2008.

3. That application was refused by the delegate on 11 September 2014 (CB 120 to CB 133). The applicant applied for review to the Tribunal on 22 September 2014 (CB 134 to CB 157). He attended a hearing before the Tribunal on 17 September 2015 (CB 172 to CB 175 and [4] at CB 179).

4. The applicant’s claims to protection, as they were presented at the Tribunal hearing, were as follows. The applicant claimed to have been an elder in his community and a Deacon in his church. This required him to take “messages” from one village to another ([29] at CB 182).

5. Following a coup in Fiji in 2006, local community meetings were abolished. There was conflict with the Bainimarama government as all local decisions had to be approved by the central government. This was enforced by the army ([29] at CB 182).

6. However, the applicant continued to take messages and information from one village to another, so as to allow local community meetings to continue. The applicant told the Tribunal he was not a member of any political party and the government’s interest in him was due to his role as a “messenger” ([29] – [30] at CB 182).

7. The applicant also claimed that he had been involved in a land dispute with his cousin in 2008. His cousin was a petty officer in the navy ([33] at CB 182).

8. The Tribunal affirmed the delegate’s decision on 25 September 2015. The Tribunal found as follows.

9. First, that the applicant’s claims about threats by the army were ([48] at CB 184):

   “…vague and not substantiated by any actual events of verbal intimidation or physical violence, other than the intimidation he experienced during a personal land dispute he had with his cousin...”

10. The Tribunal found that this dispute was “resolved in the applicant’s favour within a fairly short period of time” ([48] at CB 184).

11. Second, following the land dispute, the applicant had resided in his village in Fiji for five years on the land that was the subject of the dispute. The Tribunal found the applicant’s “story that if he returned to Fiji he would be verbally threatened and seriously physically harmed somewhat implausible and highly speculative” ([49] at CB 184 to CB 185).

12. Third, the Tribunal found that it was “implausible” in the circumstances that his cousin would have such influence so as to instruct the army to harm the applicant ([50] at CB 185).

13. Fourth, the Tribunal accepted the applicant’s claim that he had the community role of “messenger”, and that after the 2006 coup, village meetings were not approved by the government ([51] at CB 185).

14. However, the Tribunal was not satisfied that on return to Fiji, this would cause the applicant to be persecuted on the basis of actual or imputed political opinion, or for any involvement in politics ([51] at CB 185).

15. The Tribunal concluded on the basis of country information before it, that those at risk were only persons who had a high public profile. The applicant was not such a person ([52] at CB 185).

16. The Tribunal found that the applicant did not satisfy either of the criteria at s.36(2)(a) or (aa) of the Act for the grant of the protection visa ([54] at CB 185 to [58] at CB 186).

The Application to the Court

1. The application to the Court is in the following terms:

   “1. The administrative Appeals Tribunal denied me procedural fairness when it made its decision on 25 September 2015 in that it made legal unreasonable error in its reasoning given the evidence that was before the Tribunal as no other decision-maker would have arrived or came to the same conclusions on the same evidence that was before the Tribunal.

   2. The administrative Appeals Tribunal misconstrued and misapplied the Complementary protection regime and Legislation under section 36(2)(A)(aa) of the Migration Act 1958, or the applicable law, otherwise failed to ask itself the right and relevant question;

   3. The Tribunal failed to comply with section 425(1) of the Act: that I would be subjected to significant harm on return to Fiji, given the fact of the brutality and torture and persecution that I went through and experienced and my fear is not whether if I am returned to Fiji that I will face further persecution but that I will be detained indefinitely and be killed by the current Fijian authorities and the military. The implicit premise was not a conclusion that would obviously be open on the known materials on which the Tribunal based its conclusions.

   4. The administrative Appeals Tribunal’s decision is legally unreasonable as it had failed to give proper and realistic consideration to my claims individually as to and regards to my fear of being persecuted and tortured in Fiji and failed to complete the exercise of its jurisdiction and thereby failed to review in accordance with section 425 of the Migration Act 1958. The decision is vitiated for and by jurisdictional error.”

   [Errors in original.]

2. At the hearing, the applicant appeared in person. He was assisted by an interpreter in the Fijian language. The Minister was represented by a solicitor. The applicant was given the opportunity by orders made by a Registrar of the Court to file any amended application, evidence by way of affidavit and written submissions. He has not filed any further documents. The Minister filed written submissions on 7 August 2017.

3. At the hearing, the applicant submitted, and with particular reference to ground three of his application to the Court, that the Tribunal did not understand his claims, and did not understand where “he was coming from”. He claimed that the Tribunal considered his claims too “broadly”, and was not concerned about “labourers”. The applicant submitted that those who suffered more in Fiji were not those at the “top level”. He also sought to explain the land dispute in 2008 (see further below).

4. Ground one alleges that the Tribunal denied the applicant procedural fairness because the Tribunal’s decision was unreasonable.

5. I will deal with procedural fairness in relation to ground three. For the remainder, the applicant has not explained how the Tribunal’s decision was unreasonable. The Tribunal’s findings were reasonably open to it on what was before it. At best, this is a complaint about the Tribunal’s findings. The applicant seeks to cavil with those findings and therefore seeks impermissible merits review. Ground one, in that regard, is not made out.

6. Ground two asserts that the Tribunal misapplied the complementary protection criterion. Again, no particulars or explanation were provided by the applicant. On what is before the Court, the Tribunal set out its relevant understanding of the complementary protection criterion in unexceptional terms (see [5] of the attachment to the Tribunal’s decision record at CB 188). There is nothing in the Tribunal’s decision record to show that it did not understand, or misapplied, the relevant law. In relation to complementary protection, ground two is not made out.

7. Ground three asserts a breach of s.425 of the Act. It appears that the complaint is that the applicant claimed that he would be detained “indefinitely” and “killed by the current Fijian authorities and the military”.

8. The difficulty for the applicant is that no such claim is evident from the claims made to the delegate, or the Tribunal. Further, no transcript as to what occurred at the Tribunal hearing has been put before the Court. On the Tribunal’s account, no such claim was made. Therefore, it cannot be said the Tribunal failed to deal with a claim expressly made or clearly arising (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).

9. In any event, and as the Minister submits, the Tribunal did consider whether the applicant would be harmed by the military. The Tribunal found that he would not be so harmed. This was reasonably open to the Tribunal on what was before it.

10. Further, the applicant was invited to a hearing before the Tribunal. The hearing complied with all of the relevant statutory and regulatory requirements. On the available evidence, the issues dispositive of the review were discussed at the hearing. In any event, the applicant would have been on notice of the issues which were “live” issues as a result of the delegate’s decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494), a copy of which he provided to the Tribunal.

11. Nor, as the Minister submits, were the Tribunal’s obligations under s.424A of the Act enlivened in the circumstances of this case.

12. Exactly what is meant by the last sentence of ground three is difficult to understand. The applicant’s oral submissions to the Court highlight that the applicant’s real complaint with the Tribunal’s decision is that the Tribunal did not find that he should be granted a protection visa. As I sought to explain to the applicant during the course of the hearing, the Court’s power is limited to the question of whether the Tribunal, in making its decision, made a “legal mistake” (jurisdictional error). The Court cannot intervene to change findings of fact made by the Tribunal in circumstances where the applicant believes the Tribunal did not make the “right” or “correct” decision. Ground three is not made out.

13. Similarly, ground four is difficult to understand. It appears that whoever drafted the applicant’s grounds sought to draw together a collection of random references to possible legal errors (for example “legally unreasonable”), without any attempt to present them in a coherent fashion, let alone to link them to the relevant Tribunal decision.

14. Before the Court, the applicant explained that he had not consulted a lawyer at the time of the drafting of the grounds of the application to the Court. It appeared that the applicant faced some difficulty in explaining any legal error that could possibly be said to arise from the ground as stated.

15. It is the practice of this Court to give as much leeway to an unrepresented applicant as possible. But in this case, this ground, if not all of the grounds, go beyond that limit. Ground four is not made out because it is incomprehensible. At best, it may be an attempt to again cavil with the Tribunal’s factual findings.

Conclusion

1. There is no jurisdictional error apparent in the Tribunal’s decision. It is therefore appropriate to dismiss the application. I will make the appropriate order.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 2 November 2017