CJU15 v Minister for Immigration
[2017] FCCA 424
•10 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJU15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 424 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Fiji as a high ranking police officer holding politically sensitive information – Tribunal accepting many of the applicant’s claims of past harm but finding that the applicant was of no continuing interest to the Fijian authorities – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth), misunderstood important evidence, overlooked a claim or applied the wrong test considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.425 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1; 55 ALD 1; [1999] HCA 14 NAHI v Minister for Immigration [2004] FCAFC 10 SZBYR v Minister for Immigration (2007) 235 ALR 609 VTAG v Minister for Immigration (2005) 141 FCR 291 |
| Applicant: | CJU15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3079 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Singh of Sarom Solicitors |
| Solicitors for the Respondents: | Mr J Palte of DLA Piper |
ORDERS
The amended application filed on 6 June 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3079 of 2015
| CJU15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 October 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male citizen of Fiji and is 49 years old.[1] He arrived in Australia on a tourist visa on 3 September 2013[2] and he applied for a protection visa on 27 November 2013.[3] The applicant is married and has two children, a son and daughter still living in Fiji. He was a high ranking police officer in Fiji who had given 24 years of service to the Fiji Police Force before coming to Australia.
[1] Court Book (CB) 1, 12 – 13
[2] CB 13
[3] CB 1 - 68
The applicant’s claims were set out in his application and in a statement accompanying the application.[4] The application was refused on 29 July 2014.[5]
[4] CB 18-22; CB 56-57
[5] CB 114-133
The applicant applied to the Tribunal for review of the delegate's decision on 14 August 2014,[6] and gave oral evidence before the Tribunal on 2 October 2015.[7] The Tribunal handed down its decision on 21 October 2015.[8]
[6] CB 136
[7] CB 228-230
[8] CB 255-277
The applicant's claims
The applicant claimed to fear harm from the military regime in Fiji because he had worked in the Fiji Police Force since 1989 and had been involved in investigating cases levelled against military personnel.[9] Specifically, the applicant claimed to have been involved in investigating an army mutiny in 2000, as well as being assigned to a team investigating the 2006 coup.[10]
[9] CB 18, 121
[10] CB 261 [38], [39]
The applicant claimed that as a result of his investigations he was harassed and taken to a military camp on a monthly basis until 2009, including one incident in January 2007 in which the applicant claimed he was taken to Queen Elizabeth barracks where he was physically assaulted, hosed with water, made to take his clothes off and forced to run carrying a sack of sand.[11] The applicant claimed he was last harmed in 2010.[12]
[11] CB 20, 121, 261 [40]
[12] CB 261 [42]
The decision of the Tribunal
The Tribunal accepted that certain elements of the applicant's claims were credible:
a)the Tribunal accepted that the applicant was a member of the Fijian Police Force from 1989 up until the time of his departure from Fiji in 2013 and was satisfied that the applicant was stationed at Suva Central at the time of the 2000 mutiny and the 2006 coup;[13]
b)the Tribunal accepted that the applicant was assigned to guard the bodies of “CRW” soldiers killed in the aftermath of the 2000 mutiny and played a role in post-mortem examinations. The Tribunal was prepared to accept the applicant's evidence that he was tasked with informing the families of the deceased about the deaths and requesting them to identify the bodies, and that he may have told one family that their loved one was shot by the military. The Tribunal accepted that the applicant remained traumatised by what he witnessed;[14]
c)the Tribunal accepted that the applicant had one or more notebooks taken by the military and that the applicant was appointed to a team responsible for investigating the 2006 coup. The Tribunal also accepted the applicant's evidence in relation to his injuries sustained in the 2006 coup;[15]
d)the Tribunal accepted that following his release by the military, the applicant may have remained of some interest to the military and been subjected to some level of monitoring or harassment. However, the Tribunal was not satisfied that the applicant was monitored, interrogated or verbally and physically harassed by the military as frequently or as long as it was claimed;[16]
e)having regard to country information, the Tribunal accepted that blacklists/watchlists were used by the military regime and that thousands of names appeared on them. The Tribunal considered that it was plausible that the applicant's name at some point appeared on such a list, but was not satisfied that by 2013 the applicant remained on any blacklist or watch list. The Tribunal's finding was bolstered by the fact that the applicant could apply for a new passport and had an uneventful departure from Fiji;[17]
f)the Tribunal accepted that there was a fire at his family home after his departure from Fiji, that rocks were thrown at his home, and that his home and vehicle were broken into and damaged. The Tribunal accepted that his wife requested a police patrol of the family home in early 2014 and that the applicant's children were moved to a school located closer to home;[18]
g)the Tribunal accepted the applicant and his family were subjectively fearful for their safety as a consequence of the applicant's experiences in the aftermath of the 2006 coup.[19]
[13] CB 273 [121]
[14] CB 273 [122]
[15] CB 274 [124]
[16] CB 274 [25]
[17] CB 275 [128]
[18] CB 275 [129]
[19] CB 275 [130]
The Tribunal was, however, not satisfied that:
a)the applicant played a role in investigating the mutiny by conducting interviews or taking statements. The Tribunal reasoned that the applicant's description of the 2000 mutiny was vague and brief;[20]
b)the applicant remained of any interest to the military following his return from Taveuni in 2010 due to inconsistencies in the applicant's evidence:[21]
i)the Tribunal noted that in the applicant's March 2015 statutory declaration the applicant stated he was last taken by the military in 2010, and from then on was only monitored; however, at the hearing the applicant told the Tribunal that he continued to be taken by the military around once a month for a few years until 2012;[22]
c)there continued to be an objective basis for the applicant's fears, now or in the reasonable future. The Tribunal found that there was nothing on the face of the police reports to indicate that the fire or break-ins were anything other than random, opportunistic, criminal acts, notwithstanding the applicant's evidence that he lived in a relatively crime-free area. The Tribunal was not satisfied that the incidents in late 2013 and early 2014 were connected with the military or the applicant's involvement with the 2000 and 2006 investigations, as claimed;[23]
d)the applicant was of interest to Prime Minister Bainimarama although, based on country information, Prime Minster Bainimarama retained an interest in seeing military officers involved in the mutiny punished. The Tribunal considered it plausible someone who had detailed knowledge of the Prime Minister's role in the aftermath of the 2000 mutiny may still be of some interest to the Prime Minister and those loyal to him in the military.[24] However, the Tribunal was not satisfied the applicant was such a person, as the applicant was unable to demonstrate to the Tribunal anything other than a basic understanding of what transpired during and immediately after the mutiny;[25]
e)the applicant was, for several years prior to his departure from Fiji, or continues to now be, of interest to the authorities for reasons of his having guarded the CRW soldiers' bodies, having participated in the subsequent post-mortems, informing the victims' families, or for his brief involvement in an investigation into the 2006 coup.[26]
[20] CB 274 [123]
[21] CB 275 [127]
[22] CB 275 [127]
[23] CB 275 [130]
[24] CB 275 [131]
[25] CB 276 [132]
[26] CB 275 [132]
The Tribunal was accordingly not satisfied that the applicant met the refugee criterion or the complementary protection criterion.[27]
[27] CB 276 [133]-[138]
The present proceedings
These proceedings began with a show cause application filed on 12 November 2015. On 14 June 2016 I ordered by consent that a show cause hearing be dispensed with and the matter was listed for a final hearing on 8 March 2017.
For that purpose, the applicant relies upon an amended application filed on 6 June 2016. There are five particularised grounds in that application:
1.The Tribunal denied the applicant a meaningful opportunity to participate in the hearing as required by s.425 of the Migration Act (1958) Cth by failing to alert the applicant of the significance it placed on the fact that it did not have an opportunity to question any of the witness statements.
Particulars
a. Mr Jone Vunibola was a key witness who was an active member of the Fiji Military Forces and had provided evidence to corroborate a central claim of the applicant (CB104).
b. Mr Moses Driver was also a key witness who had risen to the rank of Deputy Commissioner of Police in the Fiji Police Force and had provided a letter to support the applicant's protection visa application (CB 105).
c. The first respondent had not required either Mr Vunibola or Mr Driver to be made for cross-examination; and
d. The Tribunal's failure to make any mention to the applicant on this key issue resulted in no weight being given to the evidence and thus not allowing an opportunity for the applicant to address that issue first.
2. The Tribunal made an erroneous adverse finding against the evidence of Mr Bill Dexter. By relying on a miscomprehension of the evidence and/or failing to consider the evidence (D[l28]).
Particulars
a. The Tribunal found that “The Tribunal is not satisfied. however, that by 2013, the applicant remained on any blacklist or watch list” (D[128]).
b. Contrary to the Tribunal's finding, Mr Dexter stated that, “So I told [applicant] about it. I spoke to him by phone and asked if I could meet him, and I told him about the danger, and I left very shortly after that. That would have been in April and I came to Australia in early May 2013. That was the last time I saw him until I saw him again later in Australia” (CB219).
c. There was no rational basis for discarding Mr Dexter's evidence and the Tribunal's conclusion.
3. The Tribunal fell into jurisdictional error in not complying with the legislative requirements under s.424A (l)(a) and s.424AA of the Migration Act to give the applicant “clear particulars of any information that the Tribunal considered would be the reason, or part of the reason for affirming the decision that was under review. The Tribunal gave significant weight to its own assumptions and conclusions without putting the applicant on notice that its reasons would be the reason or part of the reason. for affirming the decision under review.
Particulars
a) The Tribunal stated: “Now my job is to consider everything that you have said during today. I haven't made my mind about your case, but I do need to discuss with you my thoughts and my concerns at the present time” (T58L14-16). The Tribunal then stated its concerns as follows:
i) “Where I start to have difficulty with your story is after the 2006 incident. I'm still struggling with why you would be continually beaten and harassed for two or three years after the 2006 incident, but still able to work and live in the same place and not leave or ask to be transferred to a different location. but that's one concern” (T58L19-23).
ii) “Another concern is why you would ask to be transferred back to Suva from the island if you'd been constantly beaten and harassed and monitored in Suva. I'm struggling with understanding why you would want to go back to Suva. Even if you were in a police station. it sounds as though you're living in the same place and that they knew where you were living” (T58L25-29).
iii) “And then your ability to obtain a passport and depart legally, again causes me to doubt whether you were of ongoing interest to the military at the time you departed Fiji” (T58L29-31).
The Tribunal failed in meeting the requirements of s.424A( 1) and 424AA. This constitutes jurisdictional error.
4. The second respondent (the “Tribunal”) failed to consider the applicant's claim to fear harm on account of his having been a member of the team of police investigating the murder of soldiers in 2000.
Particulars
a. At [D20L123] the Tribunal stated: “The Tribunal remains unsatisfied, however. that the applicant played a role in investigating the mutiny by conducting interviews or taking statements. The applicant was given several opportunities during the Tribunal hearing to provide an account [sic] the events surrounding the mutiny. Contrary to the Tribunal's statement above, the transcript clearly shows that the applicant addressed the circumstances of the mutiny to the extent that the Tribunal did not express any further concerns or raise further questions [T62L35 T63L37].
5. The Tribunal's finding with regards to a real chance of persecution and real risk of significant harm were based on an incorrect test.
Particulars
a. At [D20L124l the Tribunal stated: “Having regard to the applicant's consistent evidence, the supporting witness evidence. and country information available to the Tribunal which is consistent with the applicant's claims, the Tribunal accepts that shortly after the coup. The applicant was taken to the army barracks, detained overnight, interrogated and tortured.
b. Having made its observations above, the Tribunal at [D20L125] stated that it “is not satisfied. however. that the applicant was monitored. interrogated or verbally and physically harassed by the military as frequently or for as long as is claimed.”
c. The test of a real chance or real risk is whether the chance or risk actually faced by the applicant is not remote, insubstantial or far-fetched. It is not a relative test to be measured against what the Tribunal stated at [D22Ll33]: “There is no credible country information before the Tribunal indicating that there is a real risk of serious or significant harm to failed asylum seekers or Fijians who have spent time in Australia generally, upon their return to Fiji.”
d. The failure by the Tribunal to lay a proper foundation for its conclusion that there was not a real chance that the applicant would suffer persecution constitutes jurisdictional error. The same error is committed by the Tribunal in assessing whether there is a real risk that the applicant will suffer significant harm if he were to return to Fiji.
The third ground was abandoned at the trial on 8 March 2017.
In addition to the court book filed on 10 December 2015 I have before me as evidence the affidavit made by the applicant on 6 June 2016, to which is annexed a transcript of the hearing conducted by the Tribunal on 2 October 2015.
Both the applicant and the Minister prepared written pre-hearing submissions and made oral submissions at the trial. I was assisted by those submissions.
Consideration
Ground 1 – was the applicant denied a fair hearing under s.425 of the Migration Act?
The applicant contends that Mr Jone Vunibola and Mr Moses Driver[28] were key witnesses whose evidence should not have been rejected without the applicant being put on notice of the relevant issue. I prefer the Minister’s submissions on this ground.
[28] No relation to me
Ground 1 asserts that the applicant did not receive a fair hearing as the Tribunal did not put to the applicant that it was not going to give any weight to the statements of Mr Vunibola or Mr Driver because they were not available for questioning. It further asserts by implication that the Tribunal should have made further enquiries about the potential witnesses' statements, or required them to give evidence at the hearing.
The Minister submits that this ground misconceives how the Tribunal dealt with the relevant witnesses' evidence, as it was evident from the Tribunal's reasons that it did afford the witness statements some weight in coming to its findings.
The Tribunal considered the evidence in the statements of both Mr Vunibola and Mr Driver in some depth at [32]-[33] of its decision.[29]
[29] CB 259 [32]-[33]
I accept the Minister’s submission that it is plainly evident from the Tribunal's decision that several of its findings in the applicant's favour had some basis in the evidence of Mr Vunibola and Mr Driver:
a)the Tribunal was prepared to accept that shortly after the 2006 coup the applicant was taken to the army barracks, detained overnight, interrogated and tortured.[30] This event is referred to in the statement of Mr Vunibola,[31] and the Tribunal expressly noted that its finding in this respect was made having regard to, among other things, “supporting witness evidence”;[32]
b)the Tribunal further accepted, with regard to the claim of the “applicant and his witnesses”, that the applicant's name at some point appeared on a blacklist or watch list.[33] Relevantly, Mr Vunibola had stated in his statement that he had divulged information to the applicant that he appeared “in a list of individuals at the Military Camp on elimination list and also on travel ban”.[34]
c)Furthermore, the Tribunal noted that Mr Vunibola's witness statement suggested that the applicant was in possession of a “gadget” containing sensitive information.[35] Although the Tribunal found it was not satisfied that the witness statement “was correct in this regard”,[36] I accept that the words “in this regard” implies an acceptance of Mr Vunibola's statement in other respects, which plainly was the case as described above;
d)with regard to the statement of Mr Driver, which speaks to the applicant's history and postings in the police force,[37] this evidence was also accepted by the Tribunal when it found, again expressly based on “supporting witness statements”, that the applicant was a police officer from 1989, and stationed at Suva Central at the time of the 2000 mutiny and the 2006 coup.[38]
[30] CB 274 [124]
[31] CB 104
[32] CB 272 [124]
[33] CB 275 [128]
[34] CB 104
[35] CB 104
[36] CB 276 [132]
[37] CB 105
[38] CB 273 [121]
Even if the Tribunal did not place any weight on the evidence of Mr Vunibola and Mr Driver (which I do not accept), it is well established that the weight to be attributed to evidence is a matter for the Tribunal.[39]
[39] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 (Mason J); Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 280-282
Neither is the Tribunal required to put to an applicant its “reasoning process” or “the existence of doubts, inconsistencies or the absence of evidence”.[40] The Tribunal was under no obligation to put to the applicant the significance it might place on not having an opportunity to question Mr Vunibola and Mr Driver.
[40] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]
Insofar as Ground 1 asserts that the Tribunal should have contacted Mr Vunibola and and Mr Driver regarding their statements, or to seek to have them give evidence at the hearing, the Tribunal's duty to inquire is generally limited to circumstances where there was an obvious inquiry the Tribunal could have made about a critical fact, the existence of could be easily ascertained. Any further oral evidence by the witnesses is unlikely to have added to the information provided in their statements, and would instead have gone to their credibility, rather than directly establishing the existence of any specific fact, or revealing any new critical fact.[41]
[41] Minister for Immigration v SZIAI (2009) 259 ALR 429, 434-436 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ
Furthermore an applicant bears ultimate responsibility for making their own case.[42] The applicant was represented by a migration agent who expressly stated in an email to the Tribunal that there would be no witnesses appearing on the applicant's behalf at the hearing,[43] and indicated the same in the completed response to hearing form.[44]
[42] Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1; 55 ALD 1; [1999] HCA 14 at [187]
[43] CB 224
[44] CB 225-227
It was also noted in the Tribunal's decision at [70] that “the applicant did not ask the Tribunal to take oral evidence from any witnesses at the hearing”.[45]
[45] CB 265 [70]
During the course of oral argument in relation to this ground, I raised with the parties whether the same asserted jurisdictional error might be argued in relation to the evidence of Mr Bill Dexter. The solicitor for the applicant adopted that proposition but, on reflection, I take the view that that contention would fail for the same reasons as the contention in relation to the Vunibola and Driver statements fail.
Ground 2 – was there a rational connection between the evidence of Mr Bill Dexter and the inferences drawn from it by the Tribunal?
Mr Dexter was a Fijian Police Officer who provided his evidence in the form of a statutory declaration.[46] His statement included the following information:
a)he first came into contact with the applicant in 1989 and by 1990 they worked together in the Crimes Section;[47]
b)the applicant had been taken on a few occasions to the military camp and that from his morale at work, he knew that the applicant had gone through beatings and “all those stuff” by the military;
c)the applicant was “not the same person” that he was because of the injuries that he had, the kicks that he had on his head, the butts of the rifles that he had on his head and shoulders and he could see that the applicant's mental state had really affected him;[48]
d)when the applicant was still with them, “they took him, they never missed him, they went for him”, because “he was one of the guys still around from 2000”. He knew that that applicant was “one of the guys grilled by the military very, very badly”;[49]
e)a staff sergeant in the military had told him that his and the applicant's names appeared in one of the lists in the military camp and that they “had to be on their toes”.[50] At the same time, his brother-in-law had stated the same thing;[51]
f)he met the applicant and told him about the danger, and left very shortly after that. That would have been in April 2013, and he came to Australia in early May 2013.
[46] CB 217- 219
[47] CB 217
[48] CB 218
[49] CB 218
[50] CB 218
[51] CB 219
The applicant contends that the Tribunal did not accurately represent Mr Dexter’s evidence in its decision and that the Tribunal should have informed the applicant that it was not going to take Mr Dexter’s evidence into account. The applicant contends there was no reason for the Tribunal to either doubt the credibility of Mr Dexter’s evidence or to disregard it altogether.
In my view, and consistently with the Minister’s submissions, this ground fails at a factual level.
Rather than discard Mr Dexter's evidence as is asserted by the applicant, the Tribunal in fact considered the witness statement submitted by Mr Dexter, among others, and found it to “generally corroborate” the applicant's claims.[52]
[52] CB 265 [70]
Mr Dexter's statement speaks to his time in the police force with the applicant, and also indicates knowledge of the assault on the applicant by the military in 2006, as well as the applicant's listing on a black list.[53] Having regard to the content of the statement, I find that Mr Dexter's evidence was also accepted as part of the basis for the Tribunal’s findings detailed above.
[53] CB 217-219
The Tribunal having accepted much of Mr Dexter's evidence, Ground 2 therefore appears to predominantly take issue with the Tribunal’s confined rejection of Mr Dexter's evidence that the applicant was on a watch list in 2013.[54] The weight to be attributed to evidence is generally a matter for the Tribunal.[55] Having regard to the Tribunal's findings of fact, it was open to the Tribunal to conclude that the applicant was not on a watch list in 2013, although, the Tribunal accepted that the applicant may have been on such a watch list at some point in time.[56] Contrary to the applicant's assertion that there was no rational basis for disregarding Mr Dexter's evidence, the Tribunal provided such a basis when in the sentence subsequent to making the relevant finding the Tribunal notes the finding was “consistent with the applicant's own claims, his ability to apply for a new passport and his uneventful departure from Fiji”.[57]
[54] CB 275 [128]
[55] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 (Mason J)
[56] CB 275 [128]
[57] CB 275 [128]
Ground 4 – did the Tribunal fail to consider a claim?
The applicant claims that the Tribunal failed to consider his claim to fear harm on account of his having been a member of a police team that was investigating the murder of soldiers in the aftermath of the mutiny in 2000. During the Tribunal hearing, the applicant discussed his involvement in that investigation:
Transcript, page 62, line 35:
MEMBER: Okay, I will ask you about that, because my impression from what you said to me earlier was that you didn't know a lot about the events that took place in the course of the mutiny and shortly thereafter and the events that led to the CRW officers being killed. So what do you know from your own experience at the time and the information that you gathered in the course of taking statements after the event? What do you know about what happened at the mutiny or thereafter?
Transcript, page 62, line 43:
APPLICANT: The reason the CRW was - they were going against the government. They were trying to- they don't like this leadership. They have some differences between them and, yes, within the military personnel and that's why it's just – they were one of the targets in the military. The CRW was going to target him to kill him and this---
MEMBER: Mm'hm
Transcript, page 63, line 2
APPLICANT: I mean, he was the prime minister, Mr Bainimarama. This group here, the CRW, was meant to protect the government since the former was – the former prime minister Rabuka, he formed this and this happened when they were not- I mean, in between them and they were targeting him to kill, Mr Bainimarama. That was the reason why, I think he ordered them to be killed.
Transcript, page 63, line 9
MEMBER: And what happened on the day of the mutiny, as far as you know?
APPLICANT: In the military camp they were shooting, killing each other. Even some of the CRW, the person that do it and took part in that, most of them were just taken where they are. Most of them, they were like (indistinct) I remember he was taken from school. He was in school doing tertiary. He was taken from there because the orders they were given to them was find any CRW, kill, they be killed. A few of the personnel getting there were - they're for in - not in for, they were killed. They was brought in from the street. They found them.
MEMBER: And some people who weren't there, you say, were---
APPLICANT: Yes, was not involved in--
MEMBER: ---later brought in.
APPLICANT: Yes. They were just taken, killed. They was brought in, killed instantly, and the injuries was really bad.
MEMBER: And you said to me that people had said to you that Bainimarama himself gave the orders?
APPLICANT: Yes, by interviewing the military officers. When we're getting people, interview them, question them, and treat - we follow orders from - this is what they said, “Kill them.”
MEMBER: Okay. Ms Clayton, do you have more questions?
I accept the Minister’s submission that this ground cannot be made out.
The Tribunal plainly considered in great detail the applicant's role in the investigations in 2000 from [47]-[55] of its reasons.[58] It was open to the Tribunal to conclude that the applicant was no longer of interest to the authorities in Fiji because of his role, although he had been in the past.
[58] CB 262 [47]-[55]
Having regard to the Tribunal’s detailed consideration, this ground is in my view an attempt at impermissible merits review.[59]
[59] See Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272
During the course of oral argument I raised with the parties whether it might be asserted that the Tribunal overlooked a different claim that might be said to have arisen from the available material. That claim would be that the applicant was forced to leave Fiji by a combination of threats and incidents at his home (representing a stick) and the removal of his name from the “watch list” which enabled him to leave the country without incident (the carrot). While the Tribunal accepted that the applicant had suffered serious harm at the hands of the military in the aftermath of the 2006 coup, the Tribunal was not satisfied that the applicant remained of any interest to the military after 2010. The Tribunal accepted at [128] that the applicant’s name had been on a blacklist or watchlist and accepted that the applicant’s passport was confiscated in 2007. The Tribunal was not satisfied, however, that by 2013 the applicant remained on any blacklist or watchlist and noted that this finding was consistent with the applicant’s own claims including his ability to obtain a new passport and his uneventful departure from Fiji.
In relation to incidents at the applicant’s home the Tribunal said at [129]:[60]
The Tribunal accepts on the applicant’s oral evidence and the police reports submitted to the Department that there was a fire at his family home after his departure from Fiji, rocks were thrown at his home and that his home and vehicle were broken into and damaged and items of value stolen shortly before his departure from Fiji. The applicant has also indicated that an unknown person either telephoned or visited his wife following his departure from Fiji enquiring about the applicant’s whereabouts. The Tribunal accepts that the applicant’s wife requested a police patrol of the family home in early 2014, believes she saw strange cars near her home and that the applicant’s children were moved to a school located closer to home.
[60] CB 275
The Tribunal continued at [130]:
The Tribunal accepts that the applicant and his family are subjectively fearful for their safety as a consequence of the applicant’s experiences in the aftermath of the 2006 coup. The medical evidence suggests that the applicant remains traumatised by those events and experiences flashbacks. However, the Tribunal is not satisfied that there continues to be an objective basis for those fears now or in the reasonably foreseeable future. There is nothing on the face of the police reports to indicate that the fire or the break-ins were anything other than random, opportunistic, criminal acts, notwithstanding the applicant’s evidence that he lived in a relatively crime-free area. The applicant’s own evidence indicated that there had been no further incidents in the last 18 months. In all of the circumstances, and in the context of the Tribunal’s other factual findings, the Tribunal is not satisfied, that the incidents in late 2013 and early 2014 were connected with the military or the applicant’s involvement with the 2000 and 2006 investigations, as claimed. In making this finding, the Tribunal notes the oral submissions made by the representative that there had been a spate of fires associated with the military, but has been unable to find any independent evidence to support this claim, nor has any been submitted.
There is question whether the Tribunal ought to have considered that the hypothetical carrot and stick applied by the military in Fiji encouraged the applicant’s departure, presumably on the basis of a belief that the applicant would be less troublesome outside the country than in it. The absence of any incidents affecting the applicant’s home or his family since his departure would be consistent with such a claim rather than indicating a lack of interest by the authorities.
On reflection, I am not satisfied that a claim squarely arose from the available material along the lines I have postulated. Further, the postulated claim would have as its foundation, a continuing malign interest in the applicant by Prime Minister Bainimarama. That claim was put and was expressly considered and rejected by the Tribunal at [131]-[132] where the Tribunal said:
The Tribunal accepts on the country information that Prime Minister Bainimarama was deeply concerned by the 2000 mutiny and attempt on his life and has retained an interest in seeing the military officers involved in the mutiny punished. There are allegations in the sources available to the Tribunal that Bainimarama gave orders that led to CRW soldiers being killed and mistreated. Some of the material before the Tribunal also indicates that in the lead up to the 2006 coup, Bainimarama may have been concerned about the threat of criminal and civil proceedings being brought against him as a result. Whilst there is no country information before the Tribunal indicating that any police officers involved in investigating the 2000 mutiny have been harmed or targeted in any way, the Tribunal considers it plausible that someone who had detailed knowledge of Bainimarama’s role in the aftermath of the 2000 mutiny may still be of some interest to the Prime Minister and those loyal to him in the military.
For the reasons given above, however, the Tribunal is not satisfied that the applicant is such a person. The applicant was unable to demonstrate to the Tribunal anything other than a basic understanding of what transpired during and immediately after the mutiny. The fate of the CRW soldiers and the injuries they received is a matter which has been reported on by numerous sources. The applicant’s own evidence to the Tribunal was that photographs of the soldiers’ bodies were available on the Internet. Although the applicant has claimed that he is a witness who could put Bainimarama in gaol, the applicant did not demonstrate to the Tribunal that he was in possession of any information relating to the mutiny that was not already in the public domain. The Tribunal notes that one of the witness statements suggests that the applicant may have been in possession of a “gadget” or electronic device containing sensitive information. However, this claim has not been made by the applicant himself at the Department or the Tribunal, and the Tribunal is not satisfied that the witness statement is correct in this regard. The Tribunal is not satisfied that the applicant was, for several years prior to his departure from Fiji, or continues now to be, of interest to the authorities for reasons of his having guarded the CRW soldiers’ bodies, having participated in the subsequent post-mortems, informing the victims’ families or his brief involvement in an investigation into the 2006 coup.
I conclude that no incident or element of the applicant’s claims, whether express or implied, was overlooked by the Tribunal.
Ground 5 – did the Tribunal apply an incorrect test in assessing the risk of the applicant suffering serious or significant harm?
I prefer the Minister’s submissions on this ground.
Ground 5 asserts that the Tribunal applied the wrong test when assessing whether there was a real chance of persecution or a real risk of significant harm should the applicant return to Fiji.
The assertion cannot be sustained. The Tribunal correctly set out the relevant law in detail at [6]-[20] of its reasons,[61] and specifically referred to the “real chance” test which requires that any risk be “not remote, insubstantial or far-fetched”. The correctness of this test was acknowledged in particular c in the applicant's Ground 5 and was what the Tribunal evidently applied in coming to its finding that it “is not satisfied that there is anything other than a remote chance of the applicant suffering serious or significant harm should he be removed to Fiji”.[62]
[61] CB 256 [6]-[20]
[62] CB 276 [134]
The ground further asserts that the Tribunal incorrectly applied a relative test when it stated that: [63]
There is no credible country information before the Tribunal indicating that there is a real risk of serious or significant harm to failed asylum seekers or Fijians who have spent time in Australia generally, upon their return to Fiji.
[63] CB 276 [133].
I accept the Minister’s submission that this assertion misconceives the Tribunal’s reasons, which rather than applying a relative test, was having regard to independent country information, which was open to it to do.[64]
[64] NAHI v Minister for Immigration [2004] FCAFC 10, [11]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 64-65 (Brennan J); VTAG v Minister for Immigration (2005) 141 FCR 291, 298[41]
Conclusion
I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 10 April 2017
9
2