CCW17 v Minister for Immigration and Anor
[2017] FCCA 2622
•27 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCW17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2622 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal’s findings were unreasonable that no reasonable Tribunal could make such findings – the Tribunal gave cogent and logical reasons in support of its adverse findings – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 424A, 476, 477 |
| Applicant: | CCW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 258 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 27 October 2017 |
| Date of Last Submission: | 27 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner Turner Coulson Immigration Lawyers |
| Solicitors for the Respondents: | Ms D Watson Australian Government Solicitor |
ORDERS
Time for filing the application is extended up to and including 17 May 2017 under s 477 of the Migration Act 1958 (Cth).
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 258 of 2017
| CCW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 10 April 2017 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Zimbabwe and his claims were assessed against that country. The application to this Court was filed on 17 May 2017 and at the commencement of the hearing today, the Court extended time under s 477 of the Act. Mr Turner, solicitor for the applicant, confirmed that he was in a position to proceed with the substantive hearing in light of the extension of the time.
The applicant applied for a UC 457 (Temporary Work) (Skilled) visa offshore on 19 May 2004 and withdrew that application on 28 May 2004. The migration history indicates that the applicant was in fact granted a visa on 28 June 2004. The migration history also indicates that on 11 June 2008 the applicant was granted a TU 572 (Student) visa offshore. Pursuant to that visa, the applicant then arrived in Australia on 1 July 2008.
On 30 March 2010, the applicant applied for a TU 572 (Student) visa onshore. That application was refused on 24 June 2010. The applicant applied for review of that decision on 30 July 2010. The Tribunal on 1 April 2011 set aside the decision to refuse the TU 572 (Student) visa. On 6 June 2011, the applicant was granted a TU 572 (Student) visa. On 15 July 2011, the applicant applied for a TU 572 (Student) visa and on 17 February 2012, the application for the TU 572 (Student) visa was refused. On 16 March 2012, the applicant applied for review of that decision. On 26 July 2012, the Tribunal affirmed the decision to refuse the TU 572 (Student) visa.
On 3 September 2012, the applicant’s bridging visa ceased and the applicant became an unlawful non-citizen in Australia. On 4 October 2012, the applicant was arrested and charged with special aggravated break and enter and commit serious indictable offence, take/detain in company with intent to get advantage, occasioning actual bodily harm, demand property by force in company with intent to steal, take and drive conveyance without consent of owner. The applicant was then issued with a Criminal Justice Certificate on 20 December 2013. A further criminal justice visa was refused on 13 January 2014. On 7 October 2014, the applicant was convicted and sentenced to seven years and three months imprisonment. On 26 August 2016, the applicant was granted a bridging visa on criminal detention grounds.
It was not until 16 September 2016 that the applicant applied for an XA 866 (Permanent Protection) visa. On 25 November 2016, the applicant attended a protection visa interview. When the applicant arrived in Australia, he joined his mother who arrived in Australia in 2004 and is now an Australian citizen after initially working in Australia as a nurse. The applicant claimed to fear persecution from the ruling ZANU-PF party and that he had been subjected to a beating by a number of men in 2005 after he had been critical of the ruling party. The applicant also claimed that he had been verbally threatened in the lead up to the 2008 election.
The delegate made adverse findings in relation to an alleged incident in which the applicant alleged he was beaten by the Central Intelligence Organisation (CIO) or police. The delegate referred to the applicant travelling to Botswana and South Africa on multiple occasions whilst he lived in Zimbabwe leading the delegate to find that the applicant’s fear of harm in Zimbabwe was insubstantial.
The delegate also referred to the applicant’s failure to seek protection until the moment he was transferred from criminal custody to immigration detention in considering whether or not he held a well-founded fear of persecution in in Zimbabwe. On 11 January 2012, the delegate found the applicant failed to meet the criteria for the grant of a visa under the Act.
The Tribunal’s decision
By letter dated 20 March 2017, the applicant was invited to attend a hearing on 5 April 2017. The applicant appeared on that date to give evidence and present arguments. Submissions were also provided on behalf of the applicant to the Tribunal supported by a statutory declaration from the applicant in relation to the same. The Tribunal in its reasons dated 10 April 2017, identified the background of the applicant in relation to the application for protection. The Tribunal set out in an attachment incorporated in its reasons, the relevant law.
The Tribunal summarised the applicant’s claims and evidence and what was raised with the applicant by the primary decision maker, in relation to information suggesting that the government would persecute people who it considered posed a danger to them.
The Tribunal referred to the applicant indicating that he did not participate in any Zimbabwean political groups or parties. The Tribunal summarised what occurred at the hearing on 5 April 2017, in which the Tribunal squarely raised issues in relation to the applicant’s claims and credit, including the delay by the applicant in seeking to apply for protection.
The Tribunal referred to evidence taken from the applicant’s mother to the effect that her son would be in grave danger if he was denied a visa and sent back to Zimbabwe, and that she had been really worried about her son going there while she was living in this country. The applicant’s mother confirmed that her son, the applicant, had been living with her prior to the relevant offences and raised, that her son, in her view, had been suffering from depression. The Tribunal pointed out that she was a registered nurse. The Tribunal made reference to the mother obtaining citizenship and that she must have known something about the pathways that were available and that she had indicated she knew about skilled migration and asserted that no professional advice had been sought by her son.
The Tribunal made reference to the applicant admitting that he was not a high profile opposition member, but that he alleged the situation on the ground in Zimbabwe was different. The Tribunal observed that the first time the applicant raised claims regarding his opposition to the ruling regime in Zimbabwe was when he made his application for a protection visa on 19 September 2016, after he had been living in Australia for eight years and was due to be released from prison on parole.
The Tribunal sought to explore with the applicant his explanation for the delay and the applicant suggested a lack of focus and depressive state. The Tribunal referred to the applicant’s mother’s evidence that he had gone to some psychotherapy for a short time. The Tribunal found that the applicant was better placed than most people to seek professional help because he was studying, he was holding down employment, and he was living with his mother who is a nurse.
The Tribunal indicated it had difficulty accepting the explanations in relation to why the applicant had not sought professional advice as to how he could remain in Australia. In relation to his delay in the application for a protection visa, the Tribunal made reference to putting to the applicant that this was not a novel concept in light of his mother successfully applying to remain in Australia. The Tribunal found it was reasonable to expect that someone in the applicant’s situation, with all of his advantages, would have sought professional advice about how he could remain in Australia if, as he now claims, he genuinely feared returning to Zimbabwe because he had been a victim of political violence in the past.
The Tribunal found that the applicant’s delay in applying for protection is relevant to the genuineness or at least depth of his claimed fear of persecution if he returns to Zimbabwe. The Tribunal made reference to accepting that the applicant had a scar on his hand but did not accept that it was caused by him being attacked by men or youths who were supporters of the ZANU-PF regime or intelligence officials of the ZANU-PF regime because he was critical of the Zimbabwe government, as the applicant alleged. The Tribunal did not accept that he was subsequently verbally abused or threatened because he was identified as a critic of the ZANU-PF regime. The Tribunal did not accept that the applicant genuinely holds a political opinion opposed to the current ruling party or their regime in Zimbabwe, or that he has posted comments on Facebook expressing such an opinion whilst in Australia. The Tribunal found the applicant had invented his claims regarding his political opinion in order to provide a basis for his application for a protection visa.
The Tribunal accepted that if the applicant is removed from Australia to Zimbabwe the authorities in Zimbabwe will become aware that he has been convicted of serious criminal offences in Australia. The Tribunal made reference to the submissions advanced on 31 March 2017 and in particular, a passage from the DFAT report which relevantly is as follows:
Credible sources have told DFAT that, although Central Intelligence Organisation (CIO) personnel are stationed at the country’s major airports, they only take an interest in high profile individuals, including human right activists, senior opposition party members, and anyone accused of committing a crime overseas. This could include involuntary returnees because of their actions in lodging protection claims overseas, although DFAT is aware of third country returns who have not been subjected to adverse attention by Zimbabwe authorities. DFAT assesses that only high profile involuntary returnees would bear this risk.
The Tribunal engaged with the submission advanced in relation to the applicant, that he had been convicted of a serious crime in Australia and would be a high profile involuntary returnee of the sort referred to in the quoted passage, and that the CIO will take an interest in him.
The Tribunal observed that during the course of the hearing the Tribunal raised in respect to the relevant passage that it was concerned with persons who had been accused of committing crimes against the laws of Zimbabwe. The Tribunal found that the relevant passage was talking about people who might be perceived as posing some sort of threat to the government of Zimbabwe. The Tribunal found that the reference to a person accused of committing a crime was not a reference to people who have been convicted of crimes overseas. It was in these circumstances the Tribunal found there is nothing in the information available to the Tribunal that the authorities in Zimbabwe are interested in the fact that people have been convicted of criminal offences overseas. The Tribunal did not accept on the evidence that the applicant would be of interest to the CIO or the Zimbabwe government agencies because of his criminal convictions in Australia if he returns to Zimbabwe. The Tribunal did not accept the applicant will be a high profile involuntary returnee, as referred to by the Department, nor that there is a real chance he will attract adverse attention of the Zimbabwe authorities if he returns to Zimbabwe now or in the reasonably foreseeable future.
The Tribunal also referred to a letter in support of the applicant, dated 20 July 2016, from an ambassador, asserting the dangers for any young man or woman deported to Zimbabwe. The Tribunal referred to the applicant having no close family in Zimbabwe and only two cousins and accepting the economy has declined and that employment prospects will therefore be poor. Having rejected the applicant’s claims based on political opinion, the Tribunal did not accept on the evidence that there is a real chance that the applicant will discriminated against in employment for reasons of his real or imputed political opinion or for any other reason referred to under s 5J(1)(a) of the Act.
The Tribunal did not accept on the evidence, that there is a real chance the applicant would be shunned by the community in Zimbabwe because he has been removed from Australia as suggested by the former ambassador’s letter. The Tribunal did not accept that the applicant is outside his country of nationality owing to a well-founded fear of persecution as required by the definition of refugee in s 5H of the Act. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
The Tribunal did not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Zimbabwe there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act and found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The grounds in the amended application are as follows:
1. The Tribunal's decision was irrational and unreasonable.
Particulars
a. The decision was based on findings that lacked a transparent and intelligible justification.
2. The Tribunal failed to comply with its statutory obligations.
Particulars
a. The Tribunal relied upon the Applicant's interview with the Department of Immigration and Border Protection and made adverse findings in relation to the Applicant based on that information.
b. The Tribunal failed to comply with the Migration Act 195 8 s.424A in relation to the information.
3. The Tribunal made an adverse credibility finding in relation to the Applicant and the evidence which he gave without any reliance on reasonably probative evidence.
Ground 1
In relation to ground 1, Mr Turner, solicitor for the applicant, submitted that there were three matters identified by the Tribunal in its findings that were unreasonable and that no reasonable Tribunal could make such findings.
The first was a reference to the scar on the applicant’s left hand being caused by an attack alleged by the applicant. The Tribunal gave cogent and logical reasons in support of the adverse findings in relation to the applicant. The Tribunal was not required to accept the applicant’s evidence in respect of the alleged incident. There was no irrationality, illogicality or unreasonableness in the finding made by the Tribunal rejecting the applicant’s evidence as to how his scar was caused.
The second piece of evidence referred to by Mr Turner as being unreasonable was the finding of the Tribunal in relation to the DFAT Country Report. There is nothing in the information available to suggest that the authorities in Zimbabwe are interested in the fact that people have been convicted of criminal offences overseas. The interest of authorities in a person accused of committing a crime overseas is clearly different in a material respect from a person who has been convicted of a criminal offence overseas. The adverse finding by the Tribunal in that regard was open on the material before the Tribunal and cannot be said to be unreasonable or to lack an evident and intelligible justification.
The third piece of evidence challenged by Mr Turner in relation to the adverse finding by the Tribunal was the rejection of the ambassador’s evidence in relation to the dangers faced by young men and women and being shunned from the community. It was a matter for the Tribunal to determine what evidence is accepted and weight to give to the evidence before it. The Tribunal clearly engaged with the submissions and evidence advanced and the applicant had a real and meaningful hearing before the Tribunal. The Tribunal engaged with the claims and evidence in the adverse findings that the Tribunal made. The Tribunal was not required as a matter of reasonableness, to accept the evidence of the ambassador.
Mr Turner submitted that there was no reasoning in support of the rejection of the ambassador’s views. On the contrary, the Tribunal’s reasons set out at considerable length, reasons why the applicant was not a person who met the relevant criteria under the Refugee Convention, and/or in relation to complementary protection and did not have a relevant profile. There was no inadequate reasoning in support of the adverse finding by the Tribunal rejecting the ambassador’s evidence. The rejection cannot be said to be illogical, irrational or unreasonable. No jurisdictional error is made out by ground 1.
Ground 2
In relation to ground 2, Mr Turner submitted that the information from the applicant’s mother was information enlivening an obligation under s 424A of the Act. The information in that regard on which Mr Turner focused was the information from the mother that the applicant was living with her and that she was a nurse. That was not information that undermined, negated or rejected the applicant’s claims so as to enliven the obligation under s 424A of the Act. No jurisdictional error as alleged in ground 2 is made out.
Ground 3
In relation to ground 3, Mr Turner submitted that there was a lack of probative evidence to support the findings made by the Tribunal. It was suggested that the findings were no more than guesswork.
The first finding was in relation to the applicant being in a better position to seek advice than other applicants. That was a finding clearly open to the Tribunal in circumstances where the applicant had his mother in Australia, where his mother was a nurse and where he was in a position of studying and having employment. There is no substance in the assertion that there was no probative evidence to support the finding by the Tribunal. There is no substance in the assertion that the Tribunal applied guesswork. The Tribunal made a finding that was open on the material before the Tribunal in relation to the applicant’s ability, if he had sought to do so, to obtain advice, and the difficulty that that posed for the applicant in relation to the patent delay in his application for the protection visa. That was a matter that was open to the Tribunal on the material before the Tribunal for the reasons given by the Tribunal.
The second finding submitted by Mr Turner as not being the subject of probative evidence, was the availability of counsellors to the applicant in the courses he was undertaking. The fact that the applicant was undertaking educational courses did give rise to an obvious availability by the applicant to the matters to which the Tribunal referred, and in circumstances where the applicant had changed courses, and had apparently at one stage decided to pursue studying nursing. The Tribunal made reference to raising with the applicant that if he had problems, he could have seen counsellors at the educational institutions which he was attending. It was a finding and observation open to the Tribunal and does not give rise to any alleged error of the kind identified in ground 3.
The third matter upon which Mr Turner focused in support of ground 3 was the finding in relation to the DFAT article referring to crimes against Zimbabwe law. The Tribunal identified the country information before it. It was a matter for the Tribunal what findings to make based on that country information. The adverse finding was open on the material before the Tribunal and the assertion that there was no probative evidence in support of the same, was in substance an invitation for this Court to engage in an impermissible merits review. There is no jurisdictional error that is alleged in relation to ground 3 in respect of the DFAT country information report.
The fourth challenge alleged on the basis of no probative evidence, was the rejection of the ambassador’s letter. It was a matter for the Tribunal to determine what weight to give the ambassador’s letter. The Tribunal identified logical and cogent reasons in relation to the circumstances of the applicant in coming to findings in respect of which it was open to the Tribunal not to accept the ambassador’s letter. There was no guesswork as alleged in respect of any of the challenged findings. Those findings were open. No jurisdictional error as alleged in ground 3 of the amended application is made out.
The amended application is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 16 November 2017
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