CGZ15 v Minister for Immigration

[2019] FCCA 1383

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGZ15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1383

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

Legislation:

Migration Act 1958, ss.36, 474

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

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

Minister for Immigration & Border Protection v SZMTA (2019) 93 ALJR 252

Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99

First Applicant: CGZ15

Second Applicant: CGY15

Third Applicant: CGX15

Fourth Applicant: CGW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2981 of 2015

Judgment of: Judge Cameron

Hearing date: 16 May 2019

Date of Last Submission: 16 May 2019

Delivered at: Sydney

Delivered on: 27 May 2019

REPRESENTATION

Solicitors for the Applicant: Mr R Chaudhry of Chaudhry Legal

Counsel for the First Respondent: Mr B. D. Kaplan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2981 of 2015

CGZ15

First Applicant

CGY15

Second Applicant

CGX15

Third Applicant

CGW15

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The first and second applicants are citizens of Fiji and are the parents of the third and fourth applicants. The first applicant (“applicant”) last arrived in Australia on 25 March 2010 on a visitor visa.  On 26 August 2010 he lodged a protection visa application, with what is now the Department of Home Affairs (“Department”) for himself and his wife.  It was refused by a delegate of the first respondent (“Minister”) on 28 October 2010, a decision affirmed by the Refugee Review Tribunal, a predecessor of the second respondent (“Tribunal”) on 14 March 2011.

2. Following the decision in SZGIZ v Minister for Immigration and Citizenship (2013) FCR 235, the applicant filed another protection visa application in September 2013 relying on the complementary protection criteria contained in s.36(2)(aa) of the Migration Act 1958 (“Act”).  That application is the subject of this proceeding.  The second, third and fourth applicants were included in this application as members of the applicant’s family unit.  As their claims are entirely derivative of the first applicant’s, those parties will not be referred to further except as relatives of the applicant.

3. In his application the applicant alleged that he feared persecution in Fiji because of his religion, political opinion and involvement in clearing diplomatic cargo at a Fijian airport.  On 28 July 2014 the application was refused. The applicant then applied to the Tribunal 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.

4. 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.

5. 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.  Relevant facts as summarised by the Tribunal are set out below.  

2. In his agent’s submissions to the Tribunal dated 14 May 2015 the applicant adopted the evidence he and his daughter had relied on in previous applications.  Relevantly, and as summarised by the Tribunal, the applicant made the following claims:

   a)      he was a Methodist, a member of the SDL party and married with four children;

   b)      he had worked for Fiji’s Ministry of Foreign Affairs based at Fiji’s international airport, where he had attended to diplomatic cargo;

   c)      in November 2006, he was involved in the receipt of 24 boxes of diplomatic cargo associated with the Australian High Commission.  As he was leaving his work he was questioned about the contents of the boxes but he declined to answer and went home.  The next day two military officers attended his home and had asked him to accompany them to their base for questioning about clearing that assignment. He refused and reported the matter to the police;

   d)      two days later his security pass was confiscated by airport security personnel and he was prevented from attending work for 6 months;

   e)      in July 2007 and April 2008 he was taken to the military barracks in Suva, questioned about the diplomatic cargo, detained, beaten and subsequently released;in February 2009 he was interrogated again in relation to the cargo incident, but was not subjected to ill-treatment on that occasion;

   f)      he was terminated from his position with the Department of Foreign Affairs in 2009;

   g)      he feared that if he returned to Fiji, he would be ill-treated, prosecuted and subjected to physical abuse;

   h)      he feared that he would be under surveillance by the military and the police;

   i)      he feared for his family’s economic survival because he was terminated from his employment;

   j)      since his the arrival in Australia, he had been involved with the Fiji Democratic Freedom Movement (“FDFM”); and

   k)      he feared he would suffer significant harm if he returned to Fiji because of his Methodist beliefs and his “staunch support” of the SDL in Fiji.

3. In his affidavit sworn 9 June 2015, the applicant relevantly claimed that;

   a)      police and military thuggery was still continuing after the September 2014 elections;

   b)      he felt that the diplomatic cargo event of 2006 had not been forgotten by the Bainimarama government and that he would be penalised;

   c)      he feared that Prime Minister Bainimarama would have him tortured in relation to the diplomatic cargo event of 2006, would direct the police to charge him with sedition or treason for helping a foreign power and would also seek to use the event to marginalize Australia in the Pacific Islands Forum;

   d)      his family members in Fiji had been approached by police and military officers enquiring about his return;

   e)      he would be penalised for opposing the Bainimarama government and for attending protests in Australia; and

   f)      he would be charged and subjected to a “show trial” if he returned.

4. The applicant provided numerous documents and submissions in support of his application.  These documents included, but were not limited to:

   a)      a statutory declaration made by the applicant on 22 September 2010 regarding his membership of the SDL;

   b)      the applicant’s statutory declaration dated 24 November 2010;

   c)      a statement of the applicant’s wife dated 20 September 2010 and her statutory declaration dated 18 November 2010 which detailed the 2007, 2008 and 2009 interrogation incidents;

   d)      a statement from the former Chief of Protocol for the Fiji Ministry of Foreign Affairs dated 7 June 2015, which corroborated the clearance of diplomatic boxes and the applicant’s subsequent investigation by the military;

   e)      a letter from a Lt Col. Mara dated 19 June 2011, advising that the applicant had been arrested and interrogated at least 3 times;

   f)      a statement dated 5 June 2015 from the National President of the FDFM.

   g)      statutory declarations from the applicant’s sister and brother both dated 8 June 2015 regarding being approached by intelligence officers; and

   h)      the applicant’s submissions dated 14 May 2015 and 11 July 2015.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that although the applicant had, by and large, been a truthful witness, it was not satisfied that he is a person to whom Australia has complementary protection obligations under s.36(2)(aa) of the Act.

2. The Tribunal’s discussion was based on the following findings and reasons:

   a)      the Tribunal accepted the applicant’s factual claims set out above at [7(a), (b), (c), (d), (e) and (f)];

   b)      the Tribunal was not satisfied that the applicant was at risk of suffering significant harm because of his Methodist faith.  In this regard;

   i)an Australian Department of Foreign Affairs and Trade (“DFAT”) country report dated 14 April 2015 concluded that there was little to no official discrimination against members of the Methodist Church on the basis of religion and that DFAT was not aware of any societal discrimination, harassment or violence directed at Methodists;

   ii)the Tribunal noted that the applicant did not hold any leadership positions in the church;

   iii)the applicant had not experienced any mistreatment because of his religion and he was able to practise his faith freely;  and

   iv)the country information relied on by the applicant did not cause the Tribunal to disregard the opinions expressed in the DFAT report;

   c)      the Tribunal was also not satisfied that the applicant was a person to whom Australia had protection obligations by reason of his support for the SDL party or his political activities in Australia.  In this regard:

   i)the Tribunal accepted that the applicant was a member of the SDL party but noted that he did not have any particular political opinions and did not hold any leadership positions in the party;

   ii)the Tribunal noted DFAT’s assessment that senior members of opposition parties in  Fiji were at a moderate risk of being intimated and at a low risk of being harassed; and

   iii)the Tribunal found that the applicant would not face harm if he returned to Fiji because of his involvement with FDFM or because of his political activities in Australia in opposition to the then Fijian Government.  The Tribunal noted in this regard that democratic rule had been restored to Fiji and that the 2015 DFAT report stated, amongst other things, that “Public commentary on political issues, including criticism of government policies, is permitted and occurs regularly”;

   d)      the Tribunal was not persuaded that the applicant was at risk of suffering significant harm because of his involvement in the clearing of the cargo in November 2006.  In forming this opinion the Tribunal noted that;

   i)there was no country information that supported this claim;

   ii)the events had occurred almost nine years earlier;

   iii)the applicant had not been detained at the time and was only interrogated 2 months after the event;

   iv)the applicant was able to depart Fiji without incident when he travelled to Australia four years later; and

   v)the Tribunal did not accept, on the basis of the statements of the applicant’s sister and brother alone, that the applicant had remained  of interest to the Fijian authorities;

   e)      the Tribunal also noted that the applicant’s claim that he would be tortured upon return, and that Mr Bainimarama would “use this” for political purposes and to marginalise Australia in the Pacific Island Forum, was unsupported by country information.

THE PROCEEDING IN THIS COURT

1. In the amended application it was alleged:

   1.The Tribunal erred when it failed to properly consider and/ or unduly limited the evidence of the applicant as it related to the clearance of the Australian cargo (the Australian cargo claim) at Nadi airport in November 2006 and the threats of harm to him arising out of the same.

   Particulars

   a.The Tribunal's finding that there was no country information which supported the cargo claim when the Delegate had found that the applicant's evidence matched his research and which showed that the incident that he was accused of being the inside contact for the Australian government in removing the consignment of boxes from the Nadi Airport to the Australian consular officials in 2006 and which came to the attention to the highest military personnel; and

   b.The Tribunal did not take into account all relevant factors when considering the Australian cargo claim, including the prevailing situation on which the applicant bases his claims for protection on and the political ramifications of the same.

   2.The Tribunal failed to take into account more relevant reports on Fiji 

   Particulars

   a.The Tribunal erred when it relied only of the DFAT Report of 14 April 2015 and did not take into account more persuasive reports on the human rights record of Fiji as provided to it by the applicant.

Ground 1

1. The first ground of the amended applicant was concerned with the Tribunal’s findings at paras.66 and 67 of its decision and most specifically the latter.  In those paragraphs the Tribunal said:

   66.I am not persuaded on the materials before me that because of the applicant's involvement in the clearing of the cargo in December 2006 that there is a real risk that the applicant will suffer significant harm and therefore is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

   67.    I have formed this opinion for the following reasons:

   (a)the events occurred almost nine years ago.

   (b)the applicant was not detained at [that] time, was only interrogated months after the events, and was able to depart from Fiji without incident when he came to Australia four years later.

   (c)I do not accept, simply on the basis of the statements of his sister and his brother, that he remains the subject of interest to the Fijian authorities.

   (d)there was no country information which supports this specific claim.

2. The applicant submitted that the Tribunal had found him, by and large, to have been a truthful witness but had nevertheless found in para.67(d) that no country information supported his claim.  He queried how the Tribunal could have arrived at that finding in the circumstances, particularly as the delegate had accepted that he had been involved in the customs clearance of the Australian diplomatic cargo in November 2006.  He argued that the finding in para.67(d) had been reached without reference to all available information, specifically the letter from Lt Col. Mara, and the delegate’s statement in his decision record that:

   … As discussed with the applicant, a report provided by him (CLF2013/248788) matched my research and it shows that the incident that he was accused of being the inside contact for in 2006 came to the extreme attention of the highest military personnel and the matter at hand is not a small thing that would take years to reconcile.  …

3. This allegation made in the first ground of the amended application was based on a false premise, namely that the claim referred to in para.67(d) was the applicant’s claim to have been involved in the clearance of the Australian diplomatic cargo.  In fact, that sub-paragraph was referring to the applicant’s claim to fear harm, were he to return to Fiji, by reason of the cargo clearance event.  So much is apparent from the three paragraphs of the Tribunal’s decision which preceded paras.66 and 67.  In those paragraphs it said:

   The cargo clearing claim

   63.The final basis of the applicant's fear of significant harm if he returns to Fiji is because of his involvement in clearing the consignment of boxes at Nadi International Airport in November 2006.  As noted, I am prepared to give the applicant the benefit of the doubt in relation to this claim and I have set out my findings of fact above.

   64.The question remains however whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real chance that he will suffer significant harm.

   65.As noted above, I must take into account the DFAT Country Report dated 14 April 2015.  This report provides DFAT's best judgement an assessment at the time of writing and has been prepared for protection status determination purposes.  It is based on DFAT on-the-ground knowledge and discussions with a range of sources in Fiji, including government sources, civil society and community groups.  It takes into account relevant and credible open source reports including publications from Amnesty International, Human Rights Watch, the International Labor Organization and other non-government agencies.

4. The Tribunal accepted that the applicant had been involved in the clearance of the Australian diplomatic cargo in November 2006, as recorded earlier in these reasons at [11(a)].  This acceptance is the basis of the statement in para.67(a) that “the events occurred almost nine years ago”. 

5. Consequently, because Lt Col Mara’s letter and the passage from the delegate’s decision record quoted above dealt with an allegation which the Tribunal accepted, there was no need for the Tribunal to engage in an express consideration of the information they contained.  The fact the Tribunal did not do so therefore indicates no error on its part.

6. It might also be noted that the way the Tribunal approached the applicant’s claims concerning the customs clearance issue was the same as the approach it took in relation to his claims based on his religion and his politics.  It accepted the underlying historical facts as alleged by the applicant in relation to each claim but then went on to find that he did not face a material risk of harm on account of those matters were he to return to Fiji.

Ground 2

1. The “more relevant” reports on Fiji which the Tribunal is said not to have taken into account were identified in the applicant’s written submissions as:

   … the large volume of documents that the applicant submitted for the hearing …  

   and

   … the Amnesty International Report … and

   an ABC News report recording Mr Bainimarama’s objection to the “undue influence” of Australia and New Zealand in the Pacific Islands Forum.

2. The Tribunal was aware of the large volume of documents which the applicant submitted prior to the hearing as it noted this at para.20 of its reasons and recorded that the applicant’s affidavit of 9 June 2015 attached:

   … over 100 pages of various annexures including, but not limited, to birth certificates, documentation issued by the Australian High Commission on 2 November 2006; newspaper article dated 9 November 2006; news reports in relation to a Fijian Independent Commission Against Corruption; extracts from a report of the European Union Election Observer Mission of 2006 referring to the "cleansing" of the civil service, statutory entities and other government institutions by the Bainimarama Government; country advices for the then Refugee Review Tribunal respectively dated 31 May 2010 and 9 December 2009; extracts from the Fijian decrees of 2010 and other legislation; various newspaper articles dated 2014 and 2015.

3. Apart from the ABC News report, the applicant did not identify which amongst the range of documents he provided to the Tribunal with his affidavit of 9 June 2015, and to which it made omnibus reference, were not considered by it. Absent such identification I am not prepared to find that the Tribunal erred by failing to have regard to information which might have affected the outcome of the review: Minister for Immigration & Border Protection v SZMTA (2019) 93 ALJR 252; Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99.

4. As far as the ABC News report is concerned, it was an on-line publication cited and annexed in a paragraph of the applicant’s affidavit of 9 June 2015 where the applicant deposed:

   I have a deep seated fear that Bainimarama will get the military and police to torture me into making involuntary admissions that the consignment that I cleared for the Australian High Commission on or around 3 November 2006 did have weapons.  He will do so as he will be able to extract a lot of political capital from such torture and involuntary admission.  I also know that Bainimarama will then use such involuntary admissions to play political football with the Australian government in Canberra and to use such involuntary information to further ratchet opposition to Australia so as to get Pacific Island countries to marginalize Australia from the Pacific Islands Forum.  I annex hereto … relevant documentation showing Bainimarama's recent comments wanting Australia and New Zealand out of the Pacific Islands Forum.

1. The Tribunal addressed those contentions in para.68 of its reasons where it relevantly said:

   I have also given consideration to:

   …

   (b)the applicant's claims that he will be tortured upon his return, that Mr Bainimarama will “use this” for political purposes and to marginalise Australia from the Pacific Islands forum. This claim is completely unsupported by country information.

2. Given that the contention to which the news report particularly related was specifically and separately addressed by the Tribunal, I am not persuaded that the Tribunal did not have regard to that report.

3. The “Amnesty International Report” to which this submission also  referred was, presumably, the “Amnesty International Report on Fiji circa 2015” referred to in para.42 of the applicant’s written submissions and which was supplied to the Tribunal under cover of his solicitor’s written submissions dated 11 July 2015.  The Tribunal devoted two paragraphs of its reasons, paras.30 and 31, to those submissions and their attachments. Given the detailed appreciation of the documents that were enclosed with those submissions which those paragraphs evidence, I am not persuaded that the Tribunal overlooked that Amnesty International report or its contents, particularly as the itemisation of relevant documents in para.31 of the Tribunal’s reasons was explicitly stated to not be exhaustive.  It might also be noted that the passages of the Amnesty International report upon which the applicant expressly relied in para.5 of his adviser’s submissions did not say anything relevant which was not said in other documents cited in the submissions of 11 July 2015 and otherwise dealt with matters which were not directly relevant to the applicant’s stated fears, such as ex post facto legal sanctions for human rights breaches.

4. In summary, I find that the Tribunal had regard to the information in question.  The weight it gave to that information was a matter for it.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  27 May 2019