CFL15 v Minister for Immigration

[2019] FCCA 1391

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFL15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1391

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9
Migration Act 1958, ss.36, 474

Cases cited:

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

Applicant: CFL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2912 of 2015

Judgment of: Judge Cameron

Hearing date: 14 May 2019

Date of Last Submission: 14 May 2019

Delivered at: Sydney

Delivered on: 14 May 2019

REPRESENTATION

Counsel for the Applicant: Mr J. Williams of Counsel

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2912 of 2015

CFL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Jordan who last arrived in Australia on 26 August 2012. On 6 May 2013 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Jordan because of his political opinion. On 16 July 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

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

BACKGROUND FACTS

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

   a)he was a Jordanian national of Palestinian ethnicity;

   b)he was Sunni Muslim but regarded himself as a secularist;

   c)he last arrived in Australia in August 2012 on a student visa and had travelled to Australia on four previous occasions between 2005 and 2011;

   d)he had been supporting the Arab Spring and the democracy movement which was gaining traction in Jordan and he had contributed to Middle Eastern and Jordanian political forums though a Facebook account that focused on Jordanian/Palestinian political issues;

   e)he had contributed to a forum run by a well-known political dissident and member of the Jordanian opposition, X, and had been appointed as administrative officer for his website;

   f)in early 2011 he had started a political forum.  The website for his  forum was closed in 2013, and he suspected that it was hacked or closed by Jordanian intelligence;

   g)the applicant submitted that it was unlikely that he would be identified by Jordanian intelligence as a political dissident as a result of his political activities he was conducting in Australia. However, he feared that if he continued such activities in Jordan he would be identified and targeted by Jordanian Intelligence;

   h)in submissions dated 18 October 2013 the applicant claimed that he had posted material and images about the social activities of a Jordanian princess, whom he had met.  He feared that as a result of that post, his identity and political views had become well known to Jordanian intelligence services; and

   i)he had received threats from people he suspected to be members of the Jordanian intelligence service.

2. In a letter from X dated 11 November 2013 it was claimed that the applicant was a member of an outlawed Jordanian political party and had been for some time.  X claimed that due to his membership the applicant could be imprisoned without charge, tortured and placed in medical quarantine confinement which had occurred to another member who returned to Jordan.  X claimed that the applicant’s republished photograph of the Princess caused a “shockwave” in Jordan.

3. In submissions dated 26 May 2015 the applicant’s agent claimed that he was likely to be investigated by Jordanian intelligence and charged with insulting the royal family. Further, it was submitted that the applicant would be pursued by the General Intelligence Directorate (“GID”), tried in a State Security Court, would be perceived to be a threat to internal security and would be subjected to human rights abuses in detention. Moreover, it was submitted that the death penalty had been reintroduced into Jordan and that prison conditions were overcrowded and unsanitary.  It was also submitted that the applicant could be stripped of his Jordanian citizenship.

4. The applicant appeared before the Tribunal on 28 May 2015 and relevantly noted that he would face persecution if he returned to Jordan from the moment he arrived at the airport.

5. The Tribunal received further submissions dated 2 June 2015 from the applicant’s agent. Relevantly, it was submitted that the applicant did not apply for a protection visa earlier than he did because he had not been aware of the procedure and had not received any real threats until early 2013.  It was also submitted that the first serious threat was made after he had conversed with X.

The Tribunal’s decision and reasons

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

2. The Tribunal accepted that the applicant was a truthful witness, did have a fear of persecution because of his political opinion and would continue to voice his political concerns if he returned to Jordan. However, the Tribunal found that the applicant did not have a well-founded fear of serious harm that amounted to Convention-related persecution. The Tribunal based its conclusion on the following findings and reasons:

   a)the Tribunal found that the applicant’s evidence regarding why he had such fears, who he had feared and why he would be harmed generalised, unconvincing and superficial.  The Tribunal noted the applicant’s evidence about his publications on social media where he had talked about taboo “things”, published photos of the King of Jordan and that this would expose him to persecution such as torture, imprisonment and possible execution.  The Tribunal held that due to the absence of country information supporting that proposition it found that that the applicant’s evidence was exaggerated;

   b)the Tribunal found that the applicant’s fear was not supported by a 2015 Department of Foreign Affairs and Trade (“DFAT”) Thematic Report which noted that most Palestinians did not have fears regarding their freedom of expression and that the GID did not discriminate against Palestinians;

   c)the Tribunal did not accept that the applicant would be pursued and targeted by the GID as a political dissident, tried, be perceived as a threat to internal security and be subjected to human rights abuses whilst detained.  It found that these submissions were exaggerated or without foundation and that the country information suggested that criticism of the King and the government was becoming more widespread.  Moreover, the Tribunal held that the country information provided by the applicant did not support submissions that his fear of persecution in Jordan was well founded.

   d)the Tribunal found that it was unlikely that the applicant would incur serious harm for the publication of online articles or photographs critical of the King and the government generally.  The Tribunal noted that the country information detailed that the King had pardoned protesters who had been prosecuted for insulting him;

   e)the Tribunal did not accept that the applicant ran any risk of losing his Jordanian citizenship should he return to Jordan.  The Tribunal considered a 2010 Human Rights Watch report submitted by the applicant in support of this claim and was not satisfied that he was at risk due to its age.  The Tribunal noted that a March 2015 DFAT report concluded that there was a low risk of a Jordanian national having their citizenship withdrawn;

   f)the applicant claimed that the reintroduction of the death penalty had created a risk of harm to him if he returned to Jordan. However, the Tribunal noted that the submissions conceded that the applicant might not face the death penalty;

   g)the applicant had never been detained or physically threatened when he had returned to Jordan previously;

   h)the Tribunal accepted that the applicant had had prolonged correspondence with X.  However, based on the country information the Tribunal did not accept that the applicant would come to the attention of Jordanian authorities due to his membership of the banned political party and his relationship with X.  The Tribunal also did not accept that the applicant would be imprisoned, charged and tortured because of his membership of that party. The Tribunal further noted that no persuasive independent or corroborative evidence was provided to support the assertion in X’s letter that a former member of the banned political party was imprisoned, charged and tortured because of his membership.

3. The Tribunal did not accept that the applicant’s personal identity and political views were known to the GID because of his posts about the princess.

4. The Tribunal also did not accept that the threats the applicant reportedly received were from the GID as there was no corroborative evidence supportive of this assertion.

THE PROCEEDING IN THIS COURT

1. In his amended application the applicant alleged:

   Ground 1: Misapplication of the relevant principles

   1. The decision by the Tribunal was affected by jurisdictional error as the Tribunal either misapplied the relevant law, failed to give genuine, proper or realistic consideration to the claims of the applicants or there was an insufficient logical or evidentiary basis for the Tribunal to find at [63] under the refugee criterion that that ‘if the applicant were to return to Jordan there is a real chance of serious harm for any of the reasons he has advanced” or at [64] under the complementary criterion that f]or [sic] the same reasons as detailed above,’ the second respondent erred there are not ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Jordan, there is a real risk that he will suffer significant harm: s.36(2)(aa).”

   Particulars

   Personal Details

   a.At [13], In summary, the applicant, a Jordanian national born 21 March 1981, claims protection on the Convention ground of political opinion, in addition to satisfying the complementary protection criterion. His ethnicity is Palestinian. He is a Sunni Muslim, does not consider himself to be a committed member of that faith, and regards himself as a secularist.

   Protection Claims

   b.At [51], the applicant claims protection in Australia on three grounds. First, because of the publication of the photograph of the Princess on his Face book page. He says that the Princess; who he says knows him, would recognise him. Second, because of the nature of the political commentary he places on social media, in particular comments which are the critical of the Royal family and the Jordanian government. Third, because of the recent reintroduction of the death penalty in Jordan. This he said created a risk of harm to him if he returned.

   c.To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord natural justice to the applicant by the second respondent.

   Favourable Credibility Finding

   d.At [33], the Tribunal found '[b]y and large, I find that the applicant was a truthful witness.’

   Political Views

   e.At [40], the second respondent found and accepted that the ‘applicant holds considered views in relation to Jordanian/Palestinian political issues, especially the treatment of Jordanian Palestinians.'

   f.At [41], the second respondent found and accepted that this ‘political consciousness manifested itself in the creation by the applicant of a website known as "I'm Jordanian from Palestinian background" in early 2011.'

   Political Concerns

   g.At [46], the second respondent gave the 'applicant the benefit of the doubt and find that because of his political consciousness, he will continue to voice his political concerns, particularly about the position of Palestinians in Jordan, if he returns to Jordan.'

   h.However, in the same paragraph, the second respondent did not 'accept, nor do I find, that the applicant would be targeted as a political dissident by the GID if he continues to voice his political opinions in Jordan.'

   Corroboration with [X]

   i.At [47], the second respondent found and accepted that the applicant ‘has had prolonged correspondence with [X], who has written a very strong letter of support of the applicant.’

   Facebook Threat

   j.At [61], the second respond accepted that when he returned to Jordan before he received the clamed threats on this Facebook page in Australia.

   Well Found Fear

   k.At [54], the second respondent erred by finding that the 'applicant does have a fear of persecution if he returns to Jordan, and this fear is because of the Convention reason of political opinion' the second respondent did not 'find or accept that this fear is well founded.’

   Refugee Criterion

   l.At [63], the second respondent erred by finding that 'if the applicant were to return to Jordan there is a real chance of serious harm for any of the reasons he has advanced.'

   Complementary Criterion

   m.At [64], '[f]or the same reasons as detailed above,' the second respondent erred there are not 'substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Jordan, there is a real risk that he will suffer significant harm: s.36(2)(aa).'

   n.To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord natural justice to the applicant by the second respondent. (errors in original)

CONSIDERATION

1. The burden of the Tribunal’s decision was that although it accepted that the applicant had done what he said he had done, any fear of persecution he held was not well-founded because:

   a)he had exaggerated the potential significance of what he had done and the likely response of the Jordanian authorities to that conduct;

   b)the Jordanian state did not behave towards dissidents and Palestinians as harshly as the applicant would have had the Tribunal believe;  and

   c)the applicant had not suffered any adverse treatment on the occasions when he had returned to Jordan.

2. The applicant’s allegations were, that the Tribunal had:

   a)misapplied the law; or

   b)failed to give proper consideration to his claims; or

   c)reached a decision on the review which was illogical; or

   d)reached a decision on the review that lacked sufficient evidentiary basis.

3. In addresses the applicant explained his case to be that, given that the Tribunal had made important findings in his favour concerning his past and likely future conduct, its failure to find that his fear of harm was well-founded bespoke error of some sort, and specifically one of the errors which he alleged.  He contended that the facts which the Tribunal accepted regarding his behaviour were also evidence of the risk he faced.

Misapplication of the law

1. Turning to the first of the specific errors alleged by the applicant, although his written submissions cited a number of authorities the applicant did not identify why any one of them was particularly relevant to the allegation that the Tribunal had misapplied the law, as distinct from providing a background to his arguments.  Indeed the allegation of a misapplication of the law appears to have been a catch-all as the applicant’s case was essentially one of unreasonableness.

Failure to give proper consideration

1. The applicant’s submissions and address also did not identify which of his claims failed to engage the Tribunal’s thoughtful attention even if noted by it in passing.  As the Minister observed, the Tribunal had accepted much of what the applicant had contended but, relying on country information, disagreed with him that he faced the risks he claimed to perceive.  That disagreement does not amount to a failure to engage intellectually with the applicant’s claims because the Tribunal’s decision reveals that it reached its conclusion that the fear of harm was not well-founded with those antecedent factual findings as necessary background and foundation.

Illogicality

1. The allegation of illogicality is also not made out because it was open to the Tribunal on the evidence to find, in a decision which it could not be said no reasonable person would have made, that the risks in Jordan were not what the applicant feared.  The fact that the applicant had behaved as he said was insufficient to make out his claims if the Tribunal was not also satisfied that the Jordanian authorities would take persecutory action as a result.  The evidence available to the Tribunal persuaded it that they would not.

No evidence

1. For the same reasons, the allegation that there was no evidence to support the Tribunal’s finding concerning the risk of harm faced by the applicant is not made out.  That there was evidence which would have supported a different conclusion, as the applicant argued, is not to the point.  The question is whether there was evidence which was open to the Tribunal to conclude as it did.  I find that there was.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.  Consequently, the application will be dismissed. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:  

Date:  24 May 2019