CJR17 v Minister for Immigration
[2017] FCCA 2959
•29 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJR17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2959 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal erred in its consideration of country information – whether the Tribunal was affected by bias – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Applicant: | CJR17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 290 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 29 November 2017 |
| Date of Last Submission: | 29 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2017 |
REPRESENTATION
The Applicant appeared by video link.
| Solicitors for the Respondents: | Ms D Watson Australian Government Solicitor |
ORDERS
The 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 290 of 2017
| CJR17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
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 1 May 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 applicant arrived in Australia on 15 February 2007, having been granted a student visa subclass TU-573 on 6 February 2007. That student visa ceased on 6 March 2007. The applicant was granted a second student visa on 6 March 2007. That student visa ceased on 30 March 2010. It was not until 21 January 2013, that the applicant applied for protection.
Claims for protection
The applicant claimed to fear persecution by the government and ZANU-PF supporters because of his family's, and, in particular, his father's and brother's involvement in the Movement for Democratic Change (“the MDC”). The applicant also claimed to fear harm because of his own involvement in the MDC and that he would be regarded as a traitor because he and his family members had been residing in western countries. On 4 March 2015, the delegate found the applicant failed to meet the criteria for the grant of a visa under the Act.
The Tribunal’s decision
The applicant applied for review on 8 April 2015. The applicant was invited to attend a hearing and attended by video link on 22 March 2016 to give evidence and present arguments. The applicant was represented by his registered migration agent.
The applicant’s brother’s asylum
During the course of the hearing the Tribunal raised with the applicant that it did not have a copy of any decision in relation to his brother's alleged refugee status granted in the UK. The Tribunal raised that with both the applicant and the applicant's representative. The Tribunal gave the applicant an opportunity to put on further material. It is apparent from the transcript of the hearing that the applicant and the applicant's representative were on notice from what occurred at the hearing that the Tribunal did not have any copy of a decision in respect of the applicant's brother's refugee status.
The applicant's representative sent a letter to the Tribunal on 28 April 2016 referring to the hearing and referring to a submission advanced on 19 April 2016 and expressly referring to the issue raised by the Tribunal member in respect of the issue concerning the brother's application for refugee status in the UK. The letter indicated that the applicant's brother had phoned the solicitor from the UK and confirmed that the decision made in his favour was not appealed. The solicitor's letter noted that the brother confirmed that he was granted asylum on the basis of the decision. The letter then says:
We understand a copy of the Tribunal's Determination and Reasons have been provided to the Tribunal previously.
There is no basis for any such statement. The Tribunal had made clear at the hearing that no such copy of the decision had been provided. The lawyer's letter does not identify any basis upon which it could be concluded that a copy of the decision had been provided to the Tribunal in circumstances where the applicant and the applicant's representative were on notice of the fact that the decision had not been provided to the Tribunal. The letter dated 28 April 2016 does not give rise to any denial of procedural fairness in the Tribunal not responding further in circumstances where it had already made clear that it had received no such decision.
Protection assessment
The Tribunal in its reasons identified the background to the application for review. The Tribunal set out the relevant law. The Tribunal summarised the material in which the applicant advanced his claims of fear and his evidence and submissions. The Tribunal also made reference to a letter provided from the Youth Secretary General of the MDC purporting to support the applicant's involvement and that the applicant was assaulted and harassed several times by members of the ZANU-PF.
The Tribunal referred to the applicant's claim that his brother was an enthusiastic member of the MDC and would hold rallies and hand out T-shirts. The Tribunal noted the applicant first came to fear harm because of his family's involvement with the MDC and, in particular, the involvement of his father and his brother. Secondly, the applicant claimed to fear harm because of his own involvement with the MDC and, finally, because of the fact that he and members of his family have been residing in western countries and he would be considered to be a traitor to Zimbabwe.
The applicant claimed that he had to move from Bikita to Harare because his father had been killed in Bikita and because he feared the ZANU-PF youth. The Tribunal explored with the applicant whether he had ever been assaulted in Zimbabwe, and the applicant said on one occasion when he was still in Bikita he and his brother were “touched up” by “older people” that he believed were ZANU-PF youth. The Tribunal sought to ask the applicant when that occurred, and the applicant became evasive. The applicant said the events were not serious enough for him and his brother to need medical evidence but that he had tried hard to forget what had happened so that he could not recall any specifics. The Tribunal explained why this was important in relation to its assessment of the applicant's credit.
The applicant said his brother was an MDC member, but when the Tribunal asked the applicant whether his brother was involved in any MDC activity the applicant responded that he believed so. The Tribunal referred to asking the applicant to describe his brother's MDC activity and found the applicant's evidence again appeared to give a vague and evasive answer.
The Tribunal raised with the applicant that despite his claims he had not been harmed or threatened once he moved to Harare and that may suggest that he would not be harmed if he returned to Harare. The applicant claimed the reason for this was because of his sister's husband with whom he was staying in Harare had a different last name from his and perhaps this was the reason he was not harmed.
The Tribunal raised with the applicant country information that assessed family members of MDC members, including high profile members, have a low risk of harm in Zimbabwe for their association with MDC family members. The applicant maintained that his brother was heavily involved in the MDC. The Tribunal raised with the applicant from his evidence that it appeared he had very little involvement with the MDC, and the applicant said that he was too young to be an MDC leader and that he would say that he was affiliated with the MDC.
The Tribunal indicated to the applicant that this appeared to suggest he had no political involvement in the MDC. The applicant claimed that when he moved to Harare, his primary focus was on schooling so for the first 2 years in Harare he had no political involvement. The Tribunal noted the applicant did not claim to have gone to the MDC headquarters, but alleged that he met a particular driver.
The Tribunal sought to explore with the applicant why he came to Australia and raised the delay in the applicant’s application for protection. The Tribunal accepted country information from DFAT that assessed the authorities only taking interest in high-profile individuals. The Tribunal was prepared to accept that the applicant’s father and brother were members of the MDC. Notwithstanding the inconsistency in the applicant’s evidence, the Tribunal was prepared to accept that his father sought pre-election in Bikita for the MDC. The Tribunal was also willing to accept the applicant’s brother was an MDC member who was a teacher, attended MDC rallies, and was granted asylum in the United Kingdom. The Tribunal made express reference to the fact that very little was known about the brother’s asylum case, as the decision was not provided to the Tribunal.
The Court finds, as a fact, that the brother’s decision was not provided to the Tribunal. The applicant was given an opportunity to put on evidence in relation to that assertion. No evidence has been put on supporting the assertion that the Tribunal was provided with that decision.
The Tribunal noted the applicant appeared to know very little about his brother’s involvement with the MDC. The Tribunal did not accept the applicant was ever assaulted or threatened because of his connection with the MDC. The Tribunal found the applicant’s evidence about the alleged attack thoroughly unconvincing. The Tribunal found the applicant was vague and evasive and could not provide any details of what occurred. The Tribunal made reference to the applicant’s inconsistent evidence about the attack and his failure to describe what occurred lead the Tribunal to find the applicant was never threatened or assaulted for any connections that he or his family had with the MDC. The Tribunal did not accept the applicant’s father or two brothers were killed by the ZANU-PF or their supporters for their connection with the MDC.
The Tribunal made reference to the fact that, at the hearing, the applicant did not mention anything about a fire that he previously claimed had broken out in his mother’s shop. The Tribunal made reference to the statutory declaration of the applicant in that regard. The Tribunal found there was no evidence to suggest the fire was deliberately lit or that it had anything to do with the family’s political affiliations.
The Tribunal found, unlike the applicant’s brother, who was granted asylum in the UK, the applicant has not had any involvement in Zimbabwe politics since he arrived in Australia. The Tribunal did not accept that the applicant would have any involvement in politics in Zimbabwe if he were to return. The Tribunal did not accept that there is a real chance the applicant will face serious harm in Zimbabwe because of any involvement he has or would have with the MDC.
The Tribunal identified the letter from MDC Youth Assembly and gave reasons in support of providing no weight to that letter. The Tribunal did not accept there was a real chance the applicant will be harmed if he returned to Zimbabwe on account of being a family member of his father, his brother, or anyone else. The Tribunal noted that the applicant was never harmed or threatened in Harare from when he arrived there in 2001 until he left for Australia in 2007.
The Tribunal made reference to the applicant’s delay in applying for asylum in Australia and found that gave further weight to the view that the applicant did not have a subjective fear of living in Zimbabwe and the Tribunal considers that this weighs in favour of finding that there is no real chance the applicant would suffer serious harm if he were returned to Zimbabwe. The Tribunal did not accept the applicant would face serious harm due to some family members living outside Zimbabwe in the United Kingdom and South Africa, nor did the Tribunal accept that the applicant would face serious harm if he were returned to Zimbabwe because he has been living in Australia.
The Tribunal found there is no real chance the applicant would suffer serious harm if he were to return to Zimbabwe. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for any Convention reason now or in the reasonably foreseeable future if he returns to Zimbabwe. The Tribunal found the applicant does not meet the criteria under s 36(2)(a) of the Act. The Tribunal found that the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Proceedings before this Court
This hearing commenced on 7 November 2017 and at the time of the hearing commencing the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed.
The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent, then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
During the hearing on 7 November 2017 the applicant raised with the Court that the decision of the Tribunal, which was marked for identification MFI1, had been provided to the Tribunal. Reference was made to the solicitor’s letter obliquely suggesting that the decision had been provided to the Tribunal.
On that occasion the Court made orders providing the applicant with an opportunity to put on an amended application, affidavit evidence, and submissions. The applicant only put on further submissions.
Those submissions sought to advance the proposition that the Tribunal had engaged in a selective identification of material and that there was a ground of bias that had been made out. The Tribunal, in the conduct of the review, clearly raised with the applicant the applicant’s credibility issues and on the material before the Court the applicant had a real and meaningful hearing.
The Tribunal is not required to refer to every piece of evidence that is before it in its reason for decision. The Tribunal, on the face of its decision, made dispositive findings in respect of the applicant’s claims that were open on the material before the Tribunal. The adverse findings by the Tribunal and the absence of the Tribunal in referring to all of the material before it are not conduct by reason of which a fair‑minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No case of bias is made out.
Materially, when given the opportunity to do so, no evidence was adduced to support the basis for the assertion in the letter of the solicitors that the decision had been provided to the Tribunal or to provide any basis upon which this Court could find that the Tribunal was provided with the decision. For the reasons earlier given, I find that no such decision was provided to the Tribunal.
Further, I find that the circumstances in which the Tribunal clearly raised with the applicant and the representative that it did not have a copy of the decision, both the applicant and the solicitor were on notice of that state of affairs and the solicitor’s letter did not give rise to any denial of procedural fairness in circumstances where the solicitor suggested an understanding without any identifiable basis that a copy of the decision may have been provided to the Tribunal. These were circumstances where the applicant and his representative were on notice that no such document had been provided. Further, the applicant having been given the opportunity to do so has not put on any evidence to support the document, being a decision in relation to his brother’s refugee status, being provided to the Tribunal.
The applicant’s further submissions have been taken into account by this Court as well as the applicant’s earlier submissions in support of the grounds in the application.
Submissions from the bar table
From the bar table, the applicant sought to maintain that the adverse credit findings were based on trivial or minor matters. The adverse findings by the Tribunal were open to the Tribunal for the reasons given by the Tribunal as identified above and cannot be said to be based on minor or trivial matters. The delay in the applicant’s application for protection was itself a relevant and logical identified consideration in respect of the adverse credibility findings.
The applicant maintained that there was other material that the Tribunal should have referred to. The Tribunal correctly identified the applicant’s claims and made dispositive findings of those claims. The applicant’s earlier submissions made reference to the applicant being charged with an offence. The Tribunal in its reasons took into account whether the applicant had a high profile. In that regard, the Tribunal took into account that the applicant had been sentenced to a number of years in prison in Australia after being convicted of crimes in Australia. The Tribunal referred to a DFAT report that a high-profile returnee wanted on criminal charges may attract attention of the State. The Tribunal found that, when read in context, those reports indicate that they are referring to crimes for which a person is wanted in Zimbabwe rather than crimes for which a person had committed against a foreign law whilst overseas.
The Tribunal made a finding that there is no information which supports a view that returnees are punished in Zimbabwe for crimes against foreign law for which they have been punished overseas. Those were findings that were open to the Tribunal and do not identify any basis upon which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. It was relevant for the Tribunal to take into account and make findings in relation to the applicant’s circumstances as to whether he had a profile enlivening a protection obligation under the Refugees Convention or under complementary protection.
The applicant’s submissions also referred to the grant of his brother’s refugee status in the UK. That was a matter referred to in the Tribunal’s decision and the Tribunal took into account and accepted that his brother had been granted asylum, but found that the applicant’s circumstances were, on their face, different to that of his brother. Those were findings that were open to the Tribunal to make.
The applicant’s submissions also seek to criticise the delegate. No alleged error by the delegate can give rise to a migration decision enlivening this Court’s jurisdiction and a criticism of the delegate does not give rise to any jurisdictional error by the Tribunal. The applicant referred in his written submissions to the incident involving his mother’s shop and his submissions clearly indicated a disagreement with the adverse findings by the Tribunal. The submissions, in substance, invited the Court to engage in impermissible merits review. The adverse findings by the Tribunal were open and cannot be said to be unreasonable for the reasons given by the Tribunal. The applicant’s written and oral submissions, in substance, invited this Court to engage in impermissible merits review. Nothing said by the applicant in the written submissions or orally made out any jurisdictional error by the Tribunal.
Grounds in the application
The grounds in the application are as follows:
1. The assessment was unfair because they used minor memory recollection mistakes on my part as major contributing factors in making the final decision. One example was that, I was borin in a place called Bikita which is made up of two constituencies. I however mistakenly said that, I was from the East instead of West.
2. The tribunal did not take into full consideration of my brothers Assylum Protection from the United Kingdom Government and his active MDC (opposition) membership.
3. The nature of my offence was a major mitigating factor and overshadowed the due process in delivering a fair outcome.
4. They used hasty generalised facts and assessment from DFAT rather than individual based circumstance
5. Parts of the DFAT assessment they used against me does (acknowledge) acknowledge that parts of the rural areas of the country are dangerous to people like myself. The also assessed the country as instable and volatile with potential security risks. My mother’s shop was burned by Zanu PF vandals and they didn’t take that seriously.
Ground 1
In relation to Ground 1, the Tribunal’s adverse credibility findings were not based on minor or trivial matters, and for the reasons given by the Tribunal, were open to the Tribunal. Those reasons were rational and logical. The Tribunal did not determine the applicant’s credit based on whether he had referred to the east or the west of Bikita. No jurisdictional error is made out by Ground 1.
Ground 2
In relation to Ground 2, the Tribunal took into account the material that was before it in respect of the applicant’s brother’s successful application for asylum. It was open to the Tribunal to find that those circumstances were different to the circumstances of the applicant in relation to his brother having been an active MDC member. No copy of the brother’s decision from the UK was provided to the Tribunal. There was no failure by the Tribunal to take into account and give genuine and meaningful consideration to the submissions and material before it in respect of the applicant’s brother’s asylum application. No jurisdictional error is made out by Ground 2.
Ground 3
In relation to Ground 3, for the reasons already given, the conduct of the applicant in relation to offences in Australia was relevant to his profile and was not a matter in respect of which there was any denial of procedural fairness by the Tribunal to the applicant. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. No jurisdictional error is made out by Ground 3.
Ground 4
In relation to Ground 4, the Tribunal’s reasons reflect an orthodox approach to the determination of the applicant’s claims. The assertions of a generalised or hasty assessment are, in substance, an invitation to this Court to engage in merits review. For the reasons earlier given, the Tribunal’s adverse findings were open for the reasons given by the Tribunal. No jurisdictional error is made out by Ground 4.
Ground 5
In relation to Ground 5, the applicant sought to take issue with the DFAT assessment used by the Tribunal. It was a matter for the Tribunal to determine what weight to give to country information. Nothing said in Ground 5 makes out any jurisdictional error.
Conclusion
As the application fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 24 January 2018
0
2