CDA19 v Minister for Immigration

[2020] FCCA 213

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDA19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 213

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to consider relevant information – no jurisdictional error made out – amended application dismissed.   

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Cases cited:

BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6

Applicant: CDA19

First Respondent: MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1297 of 2019

Judgment of: Judge Street

Hearing date: 4 February 2020

Date of Last Submission: 4 February 2020

Delivered at: Sydney

Delivered on: 4 February 2020

REPRESENTATION

Counsel for the Applicant: Mr T Bagley

Solicitors for the Applicant: MyVisa Lawyers

Counsel for the Respondents: Ms A Carr

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The Court will hear matters SYG1296/2019 and SYG1297/2019 concurrently, however, evidence in one will not be evidence in the other.

3. Leave is granted to the applicant to rely upon the further amended application dated 4 February 2020 and the Court directs that an electronic copy of the same be filed on or before 7 February 2020.

4. The further amended application is dismissed.

5. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

DATE OF ORDER: 4 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1297 of 2019

CDA19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 29 April 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Fiji and her claims were assessed against that country. The applicant first arrived in Australia on 10 March 2014 on a tourist visa and departed on 4 June 2014. The applicant again travelled to Australia on 18 November 2014 and departed on 23 January 2015. The applicant arrived in Australia on a further tourist visa on 22 July 2015. It was not until 30 March 2016 that the applicant applied for a Protection visa. 

3. In summary, the applicant claimed to fear harm by reason of being unable to practice her religion, as she will be suspected of being guilty of being opposed to the government due to regularly holding religious meetings at her home. The applicant also claimed that she will face military and police intervention at her religious meetings which she alleged had happened to her previously. 

4. The applicant attached a statement in support of her claims to her Protection visa application in which the applicant said at paragraphs 73 through to 77:

   73) The military were aware that we continued with the meetings; we would see them outside the house. They did not come in like they were before, but they were always there around us. But I know this was just because we were having the meetings at other places. And we know that in the future they will come in again to our place if I am having the meetings again myself; which I have to do so because my husband and I promised each other we will do it. Now that I am getting stronger again after his death I would go back to having our meetings.

   74) It was mentioned in our church about the Christian State that is going on in Ra and Nadroga but our pastor did not want to put our church and our families at risk, but he said for us to always be aware of what is going on with the military.

   75) And I know that the military and Bainimarama are by now going to be even more suspicious again about religious meetings by everyone in Fiji, because of the Christian state people.

   76) If I go back to Fiji and I continue to hold the religious meetings, I know the same thing will happen; they will be trying to break up the church; trying to break up our meetings. It's not because of the religion; it's because they believe that we are plotting against the government.

   77) We did not try to get help in Fiji from the military or the police because they are all into it. There's no one on whom we can rely to help us. We can't get help anywhere because they are all working together with the government.

5. On 20 June 2016, the Delegate rejected the applicant’s application for the Protection visa. The Delegate summarised the applicant’s claims.

6. The Delegate referred to an alleged incident in August 2014 when the military came to the applicant’s house whilst there was a meeting. The Delegate referred to the applicant’s claim that she was concerned with the military seeing the church meetings as being plotting to overthrow the government.

7. In the course of the Delegate’s findings, the Delegate referred to the applicant stating that, because of the emergence of the Christian State, the authorities in Fiji are now more suspicious of Christian group meetings. The Delegate referred to the applicant’s statement that, before her husband died, she promised to continue the Christian work through spreading the word and that if she were to return to Fiji she would do so.

8. The Delegate summarised the applicant’s claims that she would be harmed if she were to return to Fiji and hold church meetings at her home. The Delegate also referred to the applicant’s claim that she did not think she will be targeted because she is Christian, but that she will be targeted by the authorities because her meetings are thought to be political meetings, not religious meetings.

9. The Delegate found that the applicant is not a person of interest to the authorities in Fiji or any other group. The Delegate found that the applicant did not have a high profile and that she was not part of any political group or politically motivated. 

10. In these circumstances, the Delegate made adverse findings in respect of the Act’s refugee criterion and in relation to complementary protection. 

11. On 25 June 2016, the applicant applied to the Tribunal for review of the Delegate’s decision. 

12. On 2 April 2019, the applicant attended the Tribunal hearing together with a migration representative.

13. The Tribunal summarised the background to the applicant’s application for the Protection visa. The Tribunal expressly referred to the to the applicant’s claim to fear harm if she returns on the basis that she will be unable to practice her religion due to interference by the military, as the military believe the applicant was holding political meetings, in opposition to the government, at her home. The Tribunal referred to the applicant’s claim at the hearing on 2 April 2019 that she feared harm from the military if she holds religious meetings and that gatherings and meetings give rise to being suspected of being political meetings in opposition to the government. 

14. The Tribunal accepted that the applicant is a practicing Christian involved in the Church of Christ, similar to a Baptist. The Tribunal accepted that the applicant attended the Church of Christ on Sundays and held religious meetings on Thursday evenings at her home with her late husband, daughter, and son-in-law. The Tribunal accepted that the applicant and her husband were elders in the church.

15. The Tribunal found that the applicant is not now and never has been involved in politics in Fiji or Australia. In that regard, the Tribunal referred to the several references by the applicant in her written and oral evidence to the Department and Tribunal. The Tribunal also referred to the applicant’s return to Fiji with her daughter on 23 June 2015. 

16. The Tribunal did not accept that the applicant was a credible witness in relation to the difficulties she claimed to face in Fiji and her claims as to why she feared return. The Tribunal provided six cogent and logical reasons in support of those adverse credibility findings that have not been the subject of any challenge and which it is not necessary to further address. 

17. The Tribunal referred to the country information but did not accept that the country information indicates that in 2014 those holding only religious meetings were at risk of being targeted or were of any interest to the military as they were suspected of holding political meetings, even if they were in an area considered in opposition to the government. The Tribunal found that this is particularly so as the applicant did not have a high profile and was not involved in politics. The Tribunal found that the country information did not support the applicant’s claim of military intervention at religious meetings or gatherings in 2014 by reason of being suspected of being in opposition to the government. The Tribunal found the applicant is not a credible witness and found the applicant was not being truthful in relation to her claims. 

18. The Tribunal did not accept that the applicant or any members of her family were targeted, harassed, assaulted, pushed, had guns pointed towards them or were abused by any branch of the military or police at any time in Fiji while holdings religious meetings. The Tribunal did not accept that they were suspected of holding political meetings, suspected of being supporters of the Soqosoqo Duavata ni Lewenivanua (“SDL”) political party or the Social Democratic Liberal Party (“SODELPA”) S or being in opposition to the government or because they come from an area known to oppose the government. The Tribunal rejected the applicant’s claims of the difficulties she and her family faced in Fiji. The Tribunal did not accept that, at the time the applicant departed Fiji or at any time since, she has been of any interest to the authorities, military, or police as being suspected of being in opposition to the government or for any of the reasons claimed.

19. In paragraph 8 of its reasons, the Tribunal expressly referred to having had regard to the material referred to in the Delegate’s decision and the other material available to it. In that regard, the Tribunal expressly referred to having regard to the Department of Foreign Affairs and Trade (DFAT) Country Report Fiji dated 27 September 2017. In paragraph 48 of its reasons, the Tribunal expressly referred to part of the information in the DFAT report to which the Tribunal had identified that it had regard. The Court does not accept the proposition that the limited reference to the particular matters identified by reference to opposition parties, in particular up to paragraph 3.46 of the DFAT report, is in the circumstances of the present case, a basis to infer that the Tribunal did not have regard to the whole of the DFAT report. The Tribunal’s reasons expressly assert the contrary.

20. The Tribunal found that the applicant was not facing any charges of persecution involving serious harm if she returns to Fiji in the reasonably foreseeable future as she will return as a failed asylum seeker or as she has applied for protection or on account of this will be perceived as in opposition to the government. The Tribunal did not accept there is a real risk the applicant will suffer harm as defined in s 36(2A) of the Act on account of returning as a failed asylum seeker or as she applied for protection or on account of this will be perceived as being in opposition to the government.

21. The Tribunal found that there is not a real chance that the applicant will face serious harm in Fiji for the reasons claimed if she returns in the reasonably foreseeable future. The Tribunal found the applicant failed to meet the criteria in ss 36(2)(A) and 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision under review. 

Before the Court

1. These proceedings were commenced on 27 May 2019.

The grounds

1. The Tribunal failed to consider the Applicant’s claim that she would face a real risk of persecution as a perceived supporter of the Christian State.

   Particulars

   a.   The claim was made at:

   1. Applicant’s statement at CB 63 [74] – [75].

   2. Applicant’s interview at CB 110.

   b.   Evidence before the Tribunal indicated that ‘Individuals or groups who organise and take actions to create Christian separatist states within Fiji are at a moderate to high risk of harassment and arrest by authorities.’ 2017 DFAT report at [3.56].

   c.   The Tribunal accepted that the applicant would continue to practice her faith by attending or personally holding religious meetings.

   d.   The Tribunal did not acknowledge CDA19’s fear of harm as a perceived Christian separatist or advert to that material in its consideration of her claims.

   e.   To that end, the Tribunal failed to either consider a claim or to consider material before it relevant to the assessment of that claim.

   f.    To that end, the Tribunal engaged in jurisdictional error.

2. Alternatively, the Tribunal failed to perform its statutory task of review, by reference to the available evidence, of the merits of the applicant’s claim, in respect of the Applicant’s claim that she would face a real risk of persecution as a perceived supporter of the Christian State.

   Particulars

   a.    The claim was made at:

   1. Applicant’s statement at CB 63 [74] – [75].

   2. Applicant’s interview at CB 110.

   b.   Evidence before the Tribunal indicated that ‘Individuals or groups who organise and take actions to create Christian separatist states within Fiji are at a moderate to high risk of harassment and arrest by authorities.’ 2017 DFAT report at [3.56].

   c.   The Tribunal accepted that the applicant would continue to practice her faith by attending or personally holding religious meetings.

   d.   The Tribunal did not acknowledge CDA19’s fear of harm as a perceived Christian separatist or advert to that material in its consideration of her claims.

   e.   To that end, the Tribunal failed to either consider a claim or to consider material before it relevant to the assessment of that claim.

Ground 1

1. Mr Bagley, counsel on behalf of the applicant, took the Court to the applicant’s statement to which the Court referred above. Mr Bagley in essence maintained that there had been an express failure by the Tribunal to consider an integer of the applicant’s claims, being that she would be perceived to be a supporter of the Christian State and as such, in opposition to the government. 

2. Mr Bagley took the Court to the 2017 DFAT report, specifically under the heading “Fiji Democracy and Freedom Movement (FDFM) or Pacific Indigenous Samaritan Association (PISAI)” appearing under the general heading “Political Opinion (Actual and Imputed)” and noted that there were references to attempt to form a Christian State. In relation to the DFAT report, Mr Bagley referred to charges being brought against persons attempting to form a Christian State and an assessment of risk in relation to harassment, arrest, or detention by the government for being a member or supporter of FDFM or PISAI. The DFAT report also notes that individuals or groups who organise or take actions to create Christian separatists states within Fiji are at a moderate to high risk of harassment and arrest by authorities.

3. The applicant was not a person who claimed to have been associated with the FDFM or PISAI. The applicant was not a person who asserted that she organised or took actions to create a Christian Separate State. The applicant’s claims in her statement identify that she was perceived to be in opposition to the government by reason of the holding of religious meetings. The applicant’s explanation as to why she would be perceived to be in opposition to the government, as referred to in her statement, was because of alleged suspicion in respect of religious meetings because of the Christian state people. The Court does not regard that reference in the applicant’s statement as giving rise to an independent integer that required an express deliberation and finding referable to the Christian State. The applicant’s claim to fear harm by reason of being imputed for being in opposition to the government as a potential supporter of the Christian State was clearly subsumed in the adverse findings made by the Tribunal in respect of the applicant’s claim to fear harm by reason of the religious meetings and being perceived to be opposing the government. There was no requirement in the circumstances for the Tribunal to make further reference to the content of the DFAT report in its reasons or the applicant’s statement in paragraph 75 identified above.

4. The Court does not accept that the absence of reference to the content appearing in paragraph 3.51 to paragraph 3.56 of the DFAT report leads to an inference that the above report was not taken into consideration. First, there was an express reference to having considered the same. Second, there was no further development by the applicant of an issue in respect of membership of FDFM or PISAI or political activities of a kind that warranted further express deliberation. There was no failure by the Tribunal to consider the applicant’s claim as alleged in ground 1. No jurisdictional error as alleged in ground 1 is made out. 

Ground 2

1. In relation to ground 2, Mr Bagley submitted that there had not been a proper consideration by the Tribunal of the applicant’s claims and material, and, in particular, the reference to the Christian State in the applicant’s statement and the subject matter at paragraphs 3.51 to 3.56 under the “Fiji Democracy and Freedom Movement (FDFM) or Pacific Indigenous Samaritan Association (PISAI)” in the DFAT report.

2. The Court was helpfully taken by hyperlink, in the applicant’s list of authorities, to the recent decision of the Full Federal Court in BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6. , particularly, paragraph 60. The Court was also taken to the preceding paragraphs in the decision, in which it was suggested that there was some disapproval of the language often used in considering grounds of a kind advanced by ground 2 as to whether they had been given proper, genuine, and realistic consideration. In substance, this is the same proposition as having an active intellectual engagement or as the learned Lee J has described it, to the effect of a “thinking approach”.

3. Paragraph 61 refers to whether there has been a performance of the statutory task of undertaking the review by reference to the available evidence of the merits of the claims made by the applicant. It is well established by the High Court of Australia that this Court does not engage in merits review. The reference to merits of the claims made by the appellants in BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6 does not, of itself, assist in identifying the correct task to be undertaken. It is apparent that that statutory task requires a real and genuine consideration, by the Tribunal, of the applicant’s claims and the evidence before the Tribunal. That has occurred in the present case as disclosed by the reasons summarised above.

4. The proposition advanced by Mr Bagley that there has been no express reference to the applicant’s statement referring to the Christian State in respect of the fear of being perceived to be in opposition to the government or the particular paragraphs referred to under the heading “Fiji Democracy and Freedom Movement (FDFM) or Pacific Indigenous Samaritan Association (PISAI)” in the 2017 DFAT report are not a basis for inferring that there has not been a real and genuine active intellectual engagement with the applicant’s claims and evidence in respect of her alleged fear of being imputed to be opposed to the government. That alleged fear clearly subsumed the applicant’s explanation for the reason why she might be perceived to be in opposition to the government. In circumstances where the applicant was found to have no political activity here or in Fiji, and not to be a member of any political association, there is no basis to find that there was not proper consideration given to the evidence by the Tribunal. The Tribunal properly performed its statutory task in the present case in undertaking the review. 

1. As the further amended application fails to make out any jurisdictional error, the further amended application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the transcript of published oral reasons for judgement of Judge Street delivered in open Court on 4 February 2020 and the parties were provided with sealed copies of the Court’s orders.

Associate: 

Date: 6 March 2020