CGZ18 v Minister for Home Affairs

[2020] FCCA 336

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGZ18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 336

Catchwords:
MIGRATION – Visa – protection visa – whether applicants faced persecution in Fiji by virtue of their Methodist faith – whether failure to consider integer of claim – no error demonstrated.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Division 1, Part 3 to Schedule 1
Migration Act 1958 (Cth), ss.5J, 65 and 430(1)(c)

Cases cited:

Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510

First Applicant: CGZ18

Second Applicant: CHA18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 172 of 2018

Judgment of: Judge Heffernan

Hearing date: 3 February 2020

Date of Last Submission: 3 February 2020

Delivered at: Adelaide

Delivered on: 19 February 2020

REPRESENTATION

Counsel for the Applicant: Ms Rutherford

Solicitors for the Applicant: Camatta Lempens Lawyers

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicants are to pay the costs of the first respondent in accordance with the Division 1 of Part 3 to Schedule 1 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 172 of 2018

CGZ18

First Applicant

CHA18

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) affirming an earlier decision of a delegate of the Minister refusing to grant the applicants protection visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The Administrative Appeals decision is dated 4 April 2018. The applicants were represented by counsel and both the applicants and the first respondent provided me with written submissions which I have considered. The applicant raises two grounds as follows:

   “1.The Tribunal failed to conduct a review and / or did not afford the applicants procedural fairness by failing to deal with a claim raised by the applicants, and thereby committed jurisdictional error.

   Particulars

   1.1The applicants raised a claim squarely on the evidence before the Tribunal that they feared persecution in Fiji on the basis of their expected future conduct, namely that they would wish to speak out against human rights abuses and other conduct of the government or military which did not align with their religious beliefs, or that they would be forced to avoid speaking out to avoid persecution;

   1.2The Tribunal failed to consider this integer to the applicant’s claim in its entirety;

   1.3In doing so, the Tribunal failed to form the state of satisfaction required by it in section 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act), which constituted a failure to conduct a review, or in the alternative, a failure to provide the applicant with procedural fairness.

   2.The Tribunal failed to apply the test set out in section 5J and 36(2)(aa) of the Act by failing to consider the future of the applicants in the event they were to return to Fiji.

   Particulars

   2.1The applicant repeats the particulars contained within paragraph 1.1 above.

   2.2The Tribunal did not make any findings in relation to the likely conduct of the applicants upon return to Fiji.

   2.3The tests set out in sections 5J and 36(2)(aa) of the Act require the Tribunal to consider the likelihood of the harm occurring in the future, if they return or are removed from Australia to the receiving country.

   2.4The jurisdictional error of the Tribunal can in the alternative to ground 1 be described as a failure to apply the proper legal test.”

2. On the day of the hearing, I gave leave for the applicants to amend ground 2.3 of the application to omit reference to s.5J of the Act.

Background

1. The background to these proceedings was not in dispute.  Both of the applicants are Fijian citizens and they arrived in Australia in August of 2011.  They had previously travelled here as holders of tourist visas.  Those visas expired on 18 February 2012.  Both applicants applied for protection visas as members of the same family unit.  The application was received by the Department on 16 September 2013.

2. The first applicant claimed in both the application and his statement that he faced unfair and unethical treatment as a result of his position as a prison officer, his position as Chief Steward of the Korovou Prison Compound Fiji Methodist Church, and because of the Fijian military regime which had seized government in a coup in 2006.

3. In addition, the first applicant made a claim that he intended to advocate for democratic rule in Fiji and to join the Fiji Democratic Freedom Movement (‘FDFM’) in the event that he returns to Fiji.  He claimed that he and the second applicant had joined the FDFM for a short period of time. 

4. The applicants attended an interview with a delegate of the Minister on 17 December 2015.  As I have noted, the delegate rejected their claims.  It accepted that the first applicant had been a prison officer and had held the position of Chief Steward, as claimed, that both applicants were actively engaged in church and community activities, and that they were members of the FDFM, but it did not consider that they were at risk of serious harm as a result of any of those matters, the first applicant’s religious beliefs, or either of the applicants’ imputed political opinions.

5. The applicants applied within time to the Tribunal for a review of the decision of the delegate.  Prior to that hearing, they made written submissions to the Tribunal and the first applicant provided a statutory declaration.[1]  That statutory declaration specifically included a section headed “Responses to the delegate’s findings”.  The statutory declaration made specific claims as follows:

   [1]     Court Book (‘CB’) p 305.

   “[31]I think I would come to their attention both because of my past actions, and also for what I would do in the future.

   [32]If I go back to Fiji, I cannot be expected to be keep quiet, and not say and do the things that God wants from me.  I will keep speaking the truth of the Bible as it relates to reaching peace, love, truth and joy in our country.

   …

   [35]If I were in my village, or anywhere in Fiji, and I saw something that happened that was not right, I would feel compelled to speak out about it.

   [36]In that case, I might be arrested and tortured; even to the extent that I could die from my injuries.

   …

   [74]I also have a fear that, in the future, if I were to speak out against something that I saw in Fiji or against something that the government did, then I could face punishment or harassment.”

6. Prior to the Tribunal hearing, the applicants’ representative also provided written submissions.[2]  During the course of the Tribunal hearing, the applicant gave evidence and submitted further information, primarily in the form of letters, with respect to the risk of harm to him and any person who held anti-government opinions.

   [2]     Ibid pp 298 - 299.

7. As I have noted, the Tribunal affirmed the decision of the delegate. 

8. The Tribunal’s findings do not support the applicants’ claim that they would suffer harm in the future based on their religious beliefs and actions.  The Tribunal’s consideration of the likelihood of future harm is evidenced by expressed references to the applicants’ statutory declarations as set out in its reasons.  The Tribunal further asserts its findings were made in consideration of ‘up-to-date’ country information which adversely effected the credibility of the applicants’ claims.

Submissions

Applicants’ submissions

1. With respect to ground 1, it was submitted that the applicant had squarely raised a claim that on return to Fiji he would be compelled as a result of his religious and political beliefs to speak out against any injustices that he observed or perceived to have been committed by the Fijian Government.  On the applicants’ case, the Tribunal failed to identify that as a distinct claim.  It was submitted that in its initial summary of the issues before it the Tribunal did not mention that claim.[3] 

   [3]     Ibid p 431 at para [12] - [13].

2. Instead, it focused on the fact that the applicants had claimed: to be staunch Methodists; members of the FDFM in Australia; to having expressed their opposition to the 2006 coup and to the present government; their status as failed asylum seekers on return to Fiji; and the fact of the first applicant’s past employment as a prison officer.  Whilst those claims were considered in depth by the Tribunal, it did not consider separately the claim that he would feel compelled to speak out on his return.  As such, it was submitted that this case falls into the category identified in Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs.[4] It was a failure to deal with a claim squarely raised on the evidence and the contentions made by the applicant which could have been dispositive of the review. It is to be accepted that such a failure is a jurisdictional error on the basis of being both a denial of procedural fairness and a failure to conduct a review as required by the Act.[5]

   [4] [2003] HCA 26.

   [5] Ibid at para [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAC 263.

3. The end result, it was submitted, was that the claims of the applicant had been misconceived or misconstrued by the Tribunal and it had failed to conduct a review.  A proper consideration of the applicants’ claims required the Tribunal to consider all the possibilities of future persecution based on the claims that had been put to the Tribunal by them.  A failure to do so meant that it had not completed its jurisdictional task.[6] 

   [6]     Htun v the Minister for Immigration and Multicultural Affairs [2001] FCA 1802 [44].

4. Counsel for the applicant acknowledged that both grounds were overlapping to some extent. 

5. Section 430(1)(c) of the Act requires the Tribunal to set out in its reasons findings on any material questions of fact. Section 430(1)(c) of the Act provides as follows:

   “1.Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

   …

   (c)sets out the findings on any material questions of fact.”

6. What was required on the basis of the claim submitted by the applicant was that the Tribunal make a finding specifically with respect to the likely conduct of the applicants upon their return to Fiji and whether they would, in fact, speak out against the government.  Such a finding was distinct from the findings that the Tribunal actually made and it was submitted by Ms Rutherford, counsel for the applicants, that the findings the Tribunal did make could not be said to be findings of a greater generality, which subsumed the claim as to future conduct. 

7. Whilst the Tribunal did make a finding that the applicants might not support either the prime minister or his government,[7] it did not then consider whether, and if so how, the applicants would act on those beliefs in the future.  The Court should conclude that because of the lack of such finding as to future conduct, the Tribunal made no finding on that matter at all and that it must have concluded that the matter was not material to the review.  This was not the case.[8]  A failure to do so would amount to jurisdictional error if the findings revealed that the Tribunal had failed to exercise its jurisdiction and/or failed to conduct a review.  The Tribunal should have asked itself specifically how the applicants would act upon return to Fiji.  The applicants did not dispute that an analysis of their past conduct was relevant to such an assessment but submit a distinct factual finding was required and was not made.  It was submitted that given the materiality of this issue, if it had been properly considered by the Tribunal, it could realistically have resulted in the grant of protection visas to them.  Such a finding would not have been precluded by the Tribunal’s consideration of the country information to which it referred. 

   [7] CB, p 441 at para [105].

   [8]     Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at paras [5], [34] & [69].

Submissions of the first respondent

1. In noting that there was an overlap between grounds 1 and 2, the first respondent submitted that the success of ground 2 relied on the success of ground 1 because it relied on the same particulars.  For that reason, the applicant could only succeed if it established the Tribunal did not consider the claim and also that it failed to engage in the predictive exercise of what might occur in the reasonably foreseeable future if the applicants were to be returned to that country. 

2. With respect to ground 1, the first respondent submitted that before a finding could be made in favour of the applicants it would be necessary for the Court to accept, firstly, that the claim was squarely raised before the Tribunal, and secondly, that the Tribunal failed to consider or deal with the claim. The first respondent did not submit that the claim had not been squarely raised before the Tribunal. Rather, it submitted that there was no basis for the applicants to contend that the Tribunal had failed to consider that claim. The first respondent also submitted that the starting point in determining whether the Tribunal had failed to exercise its jurisdiction was to consider the reasons that it actually gave pursuant to s.430 of the Act. The Court was reminded of the often cited authority that the decision record of the Tribunal should not be read “with an eye keenly attuned to the perception of error” at the expense of a fair reading of the decision as a whole.[9]  This Court should not be concerned with any mere looseness of language in the decision itself. 

   [9]     Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at pp 271 - 272 (Brennan, Toohey, McHugh and Gummow JJ).

3. Further, it was submitted that provided the Tribunal dealt with all of the claims in its decision record in accordance with established legal principles, then it has carried out its statutory task and the manner in which it does so cannot be prescribed by any formula or template. 

4. The Tribunal clearly mentioned the claim during the course of its reasons, which is a significant matter.  That suggests that it was in the process of engaging with it.[10]  It was submitted that the Tribunal considered the nature of the applicants’ claim to fear harm and asked itself whether it was supported by objective material.  The decision record shows that the Tribunal found the claim was not supported by objective material and made a number of credit findings against the applicants.  Those findings were open to the Tribunal. 

   [10] CB, p 434 at para [48].

5. The fact that the Tribunal found that the applicants did not have a well-founded fear of persecution in Fiji for either political or religious reasons, meant that a fair reading of the decision record suggests that the Tribunal rejected the applicants’ claim that they would “speak out” on political matters if they were to return to Fiji.  In that regard, the adverse credibility findings made by the Tribunal cannot be put to one side.  Those findings as to credibility were not the subject of challenge in these proceedings. 

6. The first respondent submitted that it is well-established that the Tribunal is not required to refer to each and every claim and specifically address each one in circumstances where claims have been rejected at a higher level of generality.  A failure to do so would not amount to a legal error or establish a failure to take into account a relevant consideration.[11] 

   [11]    Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at para [236].

7. With respect to ground 2, it was submitted that if the Court accepted that the Tribunal considered and rejected the claim that there was a well-founded fear of persecution on account of what might happen if the first applicant spoke out on return to Fiji, then the assertion that it did not look into the reasonably foreseeable future must also be rejected.  The Tribunal had expressly considered that question at various points in its reasons.  For that reason, it cannot plausibly be suggested that the Tribunal failed to carry out its statutory task or that it otherwise fell into jurisdictional error. 

8. It was submitted that both grounds must fail.

Consideration

1. In this matter the Tribunal delivered reasons that were detailed and, in my view, showed a genuine intellectual engagement with the claims as presented by the applicants. 

2. I accept the submission of the first respondent that the approach taken by the Tribunal appears to have been to “clump” various topics together and to deal with them separately.  As submitted by the first respondent, a consideration of the statutory declaration provided by the first applicant prior to the Tribunal hearing,[12] shows that the Tribunal adopted in part the wording of the claims made in that declaration.[13]  In particular, in dealing with the claims made in the statutory declaration, the Tribunal had this to say at paragraph 48:

   “He claims there is a network of military personnel that can keep watch on him.  He claims he would come to their attention, because of his past action and what he would do in the future.  If he goes back to Fiji, he “cannot be expected to be quiet and not to say and do the things that God wants from me.  I will keep speaking the truth of the Bible as it relates to reaching peace, love, truth and joy in our country.”[14]

   [12]    Op cit.

   [13] CB, p 306 at para [12], p 434 at para [44], p 307 at paras [31] - [32], p 434 at para [48] & p 307 at para [30] compared to p 434 at para [48].

   [14] Ibid p 434 at para [48] (emphasis added).

3. The above clearly demonstrates that the Tribunal was alive to the claim that the applicant feared persecution on the basis of what he would do as a result of his religious beliefs if he were to return to Fiji. 

4. The Tribunal accepted some aspects of the claims made by the applicants.  It did not doubt that the applicants were staunch Methodists and members of the Uniting Church.  It did not accept that they had been involved in political activity or that they had been given harsh treatment as a result. 

5. Further, having summarised his claims with respect to his political involvement, the Tribunal reminded itself and the applicant of the following:

   “The Tribunal explained to the applicant that it must assess his claims looking to the reasonably foreseeable future.  The Tribunal noted that he retired as a prison officer in October 2010 and has not been working for over seven years.  The Tribunal questioned the applicant what he fears will happen to him if he returns to Fiji in the future.”[15]

   [15] Ibid p 436 at para [65] (emphasis added).

6. Whilst the Tribunal was dealing in that part of its reasons with the first applicant’s claims based on his former role as a prison officer, it stretches credulity to conclude that having made the observation in the first sentence of that paragraph, that the future implications for the applicants if they return to Fiji were not at the forefront of the Tribunal’s mind with respect to all of the claims. 

1. The Tribunal accepted that the applicants’ Christian beliefs may have “been at odds with some aspects of his work as a prison officer and the harsh reality of prison culture”,[16] but it did not accept that the first applicant had ever been a threat to the security of the DCS or the government.  It concluded that there was no evidence that he was a threat to the government or faced serious harm/significant harm during his period of employment in Fiji or at any other time.  In that context the Tribunal made the specific finding that it did not accept that the first applicant’s work as a steward within the prison system had brought him to the adverse attention of the Fiji authorities or that it had placed his life in danger should he return to Fiji.[17]  It did not accept that his past conduct had left him with an imputed anti-government political opinion. 

   [16] Ibid p 438 at para [82].

   [17] Ibid p 438 at para [84].

2. The Tribunal then continued:

   “Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm because of his religious beliefs and his work with political prisoners (rebels) when he was employed as a prison officer and steward at the Korovou Prison in Fiji. The Tribunal finds that the applicant’s fear of persecution because of his imputed political opinion and religious beliefs as a staunch Methodist is not well-founded.”

3. It can be seen that the Tribunal made a specific finding that the applicants’ fear of persecution because of, inter alia, their religious beliefs as staunch Methodists had no substance. 

4. The Tribunal specifically dealt with country information relating to religious beliefs and practice in Fiji and considered that matter in light of the applicants’ religious beliefs and past practices.[19]  In that context, it specifically found that there was no evidence to support the claim that because of their devotion to their Christian faith they had spoken out against injustice towards others in Fiji.[20]

   [19] Ibid p 443 at paras [117] - [121].

   [20] Ibid p 443 at para [119].

5. The Tribunal continued:

   “120.The applicant has now retired from the DCS. He is no longer employed by the government of Fiji. The Tribunal finds that the applicants are now free to practice their Methodist religion in Fiji and volunteer in community activities organised by the church in the future.

   121.Having considered the country information and the applicant’s profiles the Tribunal is not satisfied that there is a real chance that the applicants will face serious harm because of their religious beliefs if they return to Fiji in the reasonably foreseeable future. The Tribunal finds that the applicants’ fear of persecution because of religion is not well founded.”

6. As can be seen from above, there was a specific finding that there was not a real chance that the applicants would face serious harm because of their religious beliefs if they return to Fiji in the reasonably foreseeable future.  The Tribunal found that the applicants’ fear of persecution because of their religion was not well-founded.  Given that the future implications of a return to Fiji had been specifically acknowledged by the Tribunal as a relevant issue for its consideration, a plain reading of the decision record demonstrates that the finding above, and the reference to the applicants being free to practice their Methodist religion and their religious beliefs, included a finding looking to the future.  In other words, having rejected their claims as to their level of political involvement both in Fiji and when they were in Australia and that they had ever spoken out against injustice towards others in Fiji because of their religious views, the Tribunal concluded that they would not face persecution by reason of doing that in the future.  That finding was supported by country information which the Tribunal accepted, namely that there was little to no official or societal discrimination against members of the Methodist church based on their religion.[21]  Given that the Tribunal had expressly acknowledged that the claims included a fear of what might happen because of the way the first applicant might act in the future, there is no reason to conclude that this integer of the claim was not dealt with by the finding that they would be free to practice their religious beliefs on return to Fiji.  The applicant had made clear in his Statutory Declaration that the two things were inextricably linked.

   [21] Ibid p 443 at para [117].

7. I am not satisfied that the applicants have demonstrated that there was a failure to consider a claim or an integer of a claim.  I am not satisfied that the applicant has demonstrated that the Tribunal fell into jurisdictional error for that reason. 

8. With respect to ground 2, I accept the submission of the first respondent that being based on the same particulars, that ground must also fail.  I do not accept the submission of the applicants that firstly, a fair reading of the Tribunal’s decision record suggests that it did not consider the implications for the first applicant in the event that he spoke out as he said he would do.  It specifically acknowledged that aspect of his claim.  A fair reading, in my view, demonstrates that the Tribunal did consider the likely conduct of the applicants on their return to Fiji. 

9. In any event, the Tribunal’s findings that the first applicant’s past role as a prison officer, the absence of any risk of serious harm or significant harm faced by him in the past, its rejection that he would be imputed with political opinions that would make him of interest to the government, and the findings that he would be free to practice his religion in Fiji on his return, were findings of such a generality that a specific and separate finding as to what might occur if the first applicant spoke “the truth of the Bible” on his return was not required.[22]  The Tribunal’s view on that question was clear enough on a fair reading of its decision record.

   [22]    Abebe v Commonwealth of Australia (1999) 197 CLR 510 at paras [84] - [86].

10. Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  19 February 2020

[18] Ibid p 439 at para [85].