CKX16 v Minister for Immigration

[2017] FCCA 447

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKX16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 447

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Dietrich v The Queen (1992) 177 CLR 292

Applicant: CKX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1874 of 2016

Judgment of: Judge Riethmuller

Hearing dates: 3 & 24 February 2017

Date of Last Submission: 24 February 2017

Delivered at: Melbourne

Delivered on: 24 February 2017

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $10,205.50.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1874 of 2016

CKX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal on 12 July 2016.  As the applicant did not file his application for judicial review within 35 days of the date of the decision, the applicant also requires an extension of time to bring an application for judicial review.

2. The applicant was born in Fiji in 1986 and arrived in Australia on a Class AH (subclass 101) child migrant visa when he was 14 years of age.  The applicant’s child visa was cancelled on 12 August 2015 as a result of him being convicted of a number of criminal offences in Australia.  On 8 September 2015 the applicant applied for a protection visa.  On 19 October 2015, a delegate of the Minister refused to grant the protection visa and later that year the Tribunal affirmed the delegate’s decision.  On 3 May 2016 the Tribunal’s decision was remitted by consent, by the Federal Circuit Court as it was determined that the Tribunal had not provided the appropriate notification times for the hearing under the Migration Act 1958.  On 12 July 2016 the Tribunal affirmed the decision not to grant the protection visa.  It is with respect to this decision that the applicant brings these proceedings.

3. In his evidence before the Tribunal, the applicant claimed to fear persecution if he were to return to Fiji because he said that he was a witness to a murder in Fiji in 2002 and was threatened by the killer.  The Tribunal accepted that this incident had occurred, saying:

   49.  The Tribunal has considered this claim.  The Tribunal accepts that the applicant was a witness to a murder in 2002, and that he was threatened by the man who was the killer.  The Tribunal accepts that the applicant’s perception that the killer was important or powerful at that time, because he had bodyguards, was a reasonable assumption on the applicant’s part.  The Tribunal accepts that the applicant is a witness of truth in this respect.

4. The Tribunal went on to consider whether the applicant, at the time of the hearing before the Tribunal, held a well‑founded fear of persecution because of the incident in 2002.  Ultimately the Tribunal was not so satisfied and, therefore, affirmed the decision of the delegate not to grant the applicant a protection visa.

5. On 3 February 2017, the applicant appeared before this Court with the assistance of an interpreter.  As it transpired, his English was more than sufficient to enable him to interact with the Court without the assistance of an interpreter, although she remained sitting next to him and available throughout the hearing.  A further hearing was arranged today as a result of a point first raised by the applicant at the first hearing.  The matter has been treated with expedition as a result of the applicant currently being held in detention and, therefore, not having his liberty.

6. In the first hearing, the applicant was asked to expand upon his grounds for judicial review as set out in his written material.  In substance, the applicant’s arguments largely relate to a merits review of the Tribunal’s decision as he strongly disagrees with the findings of the Tribunal as to whether or not he remains at risk if he were to return to Fiji.  To the extent that the applicant’s claim is a merits-based review of the Tribunal’s decision, this application must be refused as merits‑based review is not available on judicial review proceedings.

7. Following the hearing earlier this month, the applicant also attempted to file a further application for judicial review and affidavit.  I directed that those documents be accepted as, in substance, an amended application and a further affidavit.  I proceed on the basis that they do not have the effect of the applicant seeking to abandon any existing claims, but simply to broaden the claims that he puts before the court.  I have considered all of the material filed by the applicant and do not treat the applicant as having abandoned any particular point.

8. I turn then to the grounds in the original application.  The written grounds in the formally amended version of the application of 1 December 2016 are:

   1. The Administrative Appeals Tribunals decision of 12 July 2016 is and was irrational, illogical and was not a decision that was based on findings or inferences of fact supported by logical grounds such that the Tribunals decision is attended and invalidated by jurisdictional error.

   2. Particularly the Tribunal in its decision record of 12July 2016 made a critical finding of fact that was adverse to my claims, rights and interests.  These findings of fact was not open to be made by the Tribunal in that it was contrary to the evidence, and not based upon probative materials.

   3. The Administrative Appeals tribunal denied me procedural fairness in coming to its decision on 12 July 2016 for failing to consider and take into account the best interest of a child as a primary consideration in accordance with the United Nations Convention on the Right of a Child (CROC).

   4.  The Administrative Appeals tribunal denied me procedural fairness in coming to its decision on 12 July 2016 failing to consider all my claims and the intergers of my claims for protection.

   5. The Administrative Appeals Tribunal denied me procedural fairness in coming to its decision on 12 July 2016 in that it misconstrued and misapplied section 36(2)(aa) of the Migration Act 1958.

Ground 1

1. Ground 1 is to the effect that the critical findings of the Tribunal were not open to them and that they are made contrary to evidence and not based upon probative material.  The Tribunal considered the applicant’s fear of harm as a result of having witnessed a murder in Fiji in some detail analysing the evidence and setting out the following:

   51. The applicant claimed that he was threatened by a man he assumes was influential because he witnessed this man kill another man in late 2002.  The applicant has no idea as to who the killer or the killed man were.  He believes that the killer knows his name, having seen his proof of age ID.  He was told to go away and never return at the time, and has heeded that warning.

   52. The Tribunal stated at the hearing that there were a number of concerns with the claim that this man would still be interested in the applicant and would harm him on return to Fiji.  The Tribunal noted that this incident was a significant time ago, almost 14 years had passed, and the killer’s contact with the applicant was fleeting.  The applicant stated it was limited to a threat to get away and never return, and the finding of a proof of age card, which had the limited details as to the applicant’s age and name.  The Tribunal expressed its concern that the applicant was now 30 years old, and would not be recognisable from the youth who was spoken to 14 years earlier in the late afternoon, shortly before nightfall, by any person.  The Tribunal expressed its concern that this person would not remember the name of the applicant arising out of the incident that occurred so long ago.

   53. The Tribunal noted that the applicant’s family in Fiji, who lived nearby, had never been contacted by anyone arising out of this event.  It was confirmed that the name ‘Sagoa’ was rare in Fiji, it was only their family.  However no person ever approached the applicant’s family, either soon after this incident or in the subsequent 14 years to determine the whereabouts of the applicant.  This leads the Tribunal to consider that there is no interest in the applicant by any person involved in a killing in 2002, as there was no approach or conformation of the applicant’s identity that the applicant is aware of in the intervening period to now. 

   54. The Tribunal has also considered the immediate aftermath of this incident.  The man let the applicant go, despite being a witness to the incident, and told him never to return.  The applicant remained in Fiji for a month after this, staying with his family.  No-one came looking for him, despite what has been stated as the uncommon name.  The applicant noted that there was no subsequent reporting of any killing or missing person.  The killer was not arrested during the period the applicant remained in Fiji.  A review of the internet at the hearing disclosed no references to any murder in Suva or Nepani in late 2002.  The Tribunal stated that it appeared that there was no reference to this killing, and questioned whether there would be any action against the applicant so many years later by this unknown person.  The applicant stated that he was sure he would be killed.  The Tribunal considers that this belief of the applicant is pure supposition, and not based on any objective basis.

   55. The applicant has no idea was to who this man is.  He could have passed away, left Fiji, or moved to another island.  The Tribunal stated that it had significant concerns with the applicant’s claim that this man remained a threat to the applicant, given the passing of time.  The Tribunal also noted at the hearing that there have significant upheavals that have occurred politically, economically and environmentally in Fiji since 2002.  The Tribunal noted that any of these issues could have had a significant effect on the man the applicant described as being influential in 2002. 

   56. The applicant has no idea who the man who threatened him was.  There have been no subsequent threats made to him or his family, no contact that has been made seeking the applicant or his personal situation.  Apart from the one off incident in late 2002 the applicant or his family has had no further contact from this person.

2. It is difficult to conclude that the matters that the Tribunal had referred to in these passages are either irrelevant or not probative to the decision that had to be made.  Similarly, it seems clear that it was reasonably open to the Tribunal member to reach the view that the member did on the evidence that was available to the Tribunal even in the circumstances of this case where the Tribunal accepted that the applicant had witnessed a murder.

3. In his further material filed more recently, the details of which I have set out below, the applicant again raised grounds that were, in substance, of this category: that is a failure to have regard to probative material or unreasonableness of decision-making.  However, no further particulars were able to be raised by the applicant beyond what is set out in ground 4.  Beyond this, the applicant set out factors such as that he had lived in Australia for a long time, Australia is his residence, and that he ought to have some basis for remaining.

4. The applicant referred to the fact that he had criminal offences.  However, it is clear that these were not considered as part of the decision to determine whether or not he was entitled to a protection visa and nor should they have been considered as part of that process.  These matters are not relevant to the question of whether or not he is in need of a protection visa and the fact that the Tribunal did not refer to them does not undermine their decision.  It seems clear that the Tribunal member referred to the relevant facts and circumstances and not others.  In this respect, under this ground, I am not persuaded that the applicant has shown an arguable case.

Ground 2

1. In substance, ground 2 is to the same effect as ground 1.  No further particulars were forthcoming from the applicant.  I am not persuaded that the applicant has shown an arguable case in this ground. 

Ground 3

1. With respect to ground 3, the applicant ground alleges that the Tribunal had failed to take into account the best interests of a child as a primary consideration contrary to the United Nations Convention on the Rights of a Child.  In this case, the matter is relevant not because the applicant has a child that may be affected by these proceedings or events, but rather on the basis that the applicant says he was a child when he came to Australia and he obtained the visa as a child.  The applicant argues that, therefore, the Convention applies to him and should be relevant in these proceedings.  However, in these proceedings, the applicant is an adult.  In the context of a protection visa application by an adult, it does not seem to me that the Convention could be said to have any role.  Whether arguably it had some role with respect to the cancellation of his earlier visa is not a question that I must consider in these proceedings.  In the present proceedings I am not persuaded that this presents an arguable ground.

Ground 4

1. The applicant claimed that the Tribunal denied him procedural fairness in coming to its decision by failing to consider all of his claims and integers of his claims for protection.  The applicant’s claim is based solely upon the claim that he witnessed a murder, which was squarely addressed by the Tribunal.  The Tribunal confronted a difficult case in this instance as the applicant had said in his initial visa application (at court book p.44), “I don’t feel safe at all, because I’m afraid I will be killed,” but did not set out any details of particulars about the basis for his fear.

2. At p.56 of the court book, the delegate gave a summary of the applicant’s material as being:

   ...refused to provide any further details about who or why [someone] would harm him in Fiji or whether the potential perpetrators have any connection with Fijian authorities.  He merely stated that the conflict in which he fears being killed is of a personal nature.

3. The delegate had explained to the applicant that he could not properly address the claims for protection unless more information was provided, but the applicant at that stage declined to provide any further details.  The Tribunal, after the hearing with the applicant, recounted the details of the events given to them in paragraph [21] of the decision, saying:

   21.  The applicant stated that the reason he feared returning to Fiji was that he believed he would be killed.  The applicant stated that about a month prior to his return to Australia in December 2002, he had been returning from school on a Friday afternoon in the suburb of Nepani, near Suva on the main island of Viti Levu.  The applicant stated he witnessed a Fiji man, who had two bodyguards, slit the throat of another man with a machete.  The man who did the killing saw the applicant, grabbed him and told him if the applicant returns, he will kill him.  The applicant stated that the man went through the applicant’s school bag and found his wallet, which had a proof of age card which detailed the applicant’s name.  The applicant stated he was the only witness to this murder, which took place on a back road short cut.  It was heading towards night when it occurred.

4. It does not seem that this is a case concerning the failure of the Tribunal to deal with an independent ground by the applicant for protection or of an integer of the case.

5. At the first hearing, the applicant raised that he had advised the Tribunal that the perpetrator of the murder was a military man and that this was one of the factors relevant to the risk that he confronted.  There is no reference in the decision of the Tribunal to the perpetrator being a “military man”, nor does this appear in any of the material in writing that was placed before the Tribunal by the applicant. 

6. As the applicant is self-represented, and in order to be cautious to ensure that potential grounds are properly explored, I made directions at the end of the first hearing for the Minister’s solicitor to obtain a recording of the Tribunal hearing and to provide the applicant with a copy.  I also directed the solicitor listen to the recording and file a brief affidavit setting out whether or not there was reference to the perpetrator being a military man in the recording of the Tribunal hearing.

7. I further directed that the applicant have seven days after receiving a copy of the recording to request a further hearing before the Court if he sought to do so, in particular if he disagreed with the version given by the Minister’s solicitor.  The solicitor for the Minister filed an affidavit on 13 February 2017 setting out that she had listened to the recording and there was no mention in the recording of the murderer being a military man.  The affidavit annexes a compact disc containing the recording and was served on the applicant on 13 February 2017. 

8. The applicant requested a further hearing before me, which was scheduled for today, and the applicant was heard further on this matter.  The applicant made submissions that the quality of the recording was such that it meant that he was unable to properly hear what he actually said at the hearing before the Tribunal, but that he was “100 per cent certain” that he told the Tribunal the perpetrator was a military man. 

9. As a result, I took the time to listen to the recording myself.  The relevant passage in the recording, which I note is very difficult to hear with respect to what the applicant says (although very easy to hear with respect to what the member says and, indeed, the noise of the member typing on his computer), appears at about 31 minutes 45 into the recording where the applicant and the member have the following exchange:

   Applicant:   This guy was obviously a man with power.

   Member:   Why is he obviously a man with power?

   Applicant:   It’s a small island.

   Member:   Why is he obviously a man with power?

   Applicant:   He had two bodyguards, two army bodyguards.

   Member:   Yes.  So the person who was killed had power?

   Applicant:   The person who was killed, I don’t know who he was, he just looked like a young man.

   Member:   But he the man who did the killing… Did he have people with him?  Did he have bodyguards?

   Applicant:  He had two people with him, yes.

10. It does not appear from the recording that the applicant said that the perpetrator of the offence was a military man, and at its highest, the applicant said that he had two bodyguards with him which the applicant said almost as an afterthought were “two army bodyguards.”  When regarding the evidence as a whole, and the Tribunal member’s written reasons for the decision, it does not appear to me that the failure by the Tribunal member to recount this one small piece of the evidence in the context of this case is of such significance that it demonstrates that the applicant has an arguable case that the Tribunal member has failed to have proper regard to the evidence before the member.  It is not for a Tribunal member to have to recount every detail of everything that is said or placed before them, but give reasons for a decision that explain why the decision has been reached and demonstrate a proper engagement with the material in considering what decision should be taken.

Amended Material

1. In the material filed on 22 February 2017, being purportedly a new application and supporting affidavit, the supporting affidavit effectively sets out a number of new grounds as follows: 

   1.  The First Respondent provided me with a audio copy of the interview with Administrative Appeals Tribunal interview which was totally erroneous.

   2.  The First Respondent only assessed the information set out in the Administrative Appeals Tribunal interview and had not considered any other document which was respectfully submitted.

   3.  The First Respondent failed to exercise Australia’s Protection Obligations and misconstrued my applications and submissions as a witness of truth.

1. This morning the applicant had a further oral hearing before me by telephone, where I sought any evidentiary bases for the claims or any particulars that the applicant could recount with respect to these matters.  Two further issues arose.  One was whether or not the recording was “totally erroneous”, as the applicant described.  The recording, when one listens to it, has an obvious air of believability about it.  The voices can be heard, the background noise can be heard.  There is nothing within the hearing of the recording that would give rise to any indication that it has been falsified or that it is not genuine.  The applicant provides no particulars about this general allegation.

2. The applicant also raised a claim that he had been denied rights and that he was guaranteed by an International Covenant on Civil and Political Rights on the basis that he was not provided with a lawyer for the purpose of assisting him to pursue this application or his claims.  There are a number of difficulties with such an argument.  The first being that the International Covenant on Civil and Political Rights does not appear to have been enacted within the domestic law of Australia.  Secondly, the High Court has rejected such an argument even with respect to serious and complex criminal matters in the Dietrich v The Queen (1992) 177 CLR 292 at p.311. These matters do not appear to me to raise an arguable case for the applicant.

3. In light of the applicant’s inability to particularise any further facts or circumstances relating to the additional grounds he seeks to raise, I am not persuaded that any of them have an arguable basis. 

4. In the circumstances it seems to me that there is no point extending time to bring this application, as there is not an arguable ground that has been raised by the applicant.  In the circumstances, I therefore formally dismiss the current application.

   [Further argument ensued]

5. In this matter, the applicant has been unsuccessful and it does not seem to me that there are the types of facts or circumstances that would lead to arguments about costs not following the event.  Therefore, I am of the view that the applicant ought to pay the first respondent’s costs.  The scale fee for a migration matter is $7,206.  In this case, additional time was required, a half day of counsel and then the solicitor to return in the afternoon to take judgment.  The solicitor attended in the morning. I find that it is reasonable that the solicitor would also attend, given the way in which the matter unfolded and the importance that if any further issues were raised that there was a solicitor familiar with the conduct of the matter being here to provide instructions. 

6. Having regard to the general federal law scale and fees for an additional half day hearing and additional time for an instructor, and having regard to the types of work ordinarily contemplated as being within the standard fee for the scale migration matter, it seems to me that the additional costs of counsel and solicitor for a half day and the solicitor for taking judgment should be included, which is $2,996.50, which added to the scale fee of $7206 comes to $10,205.50.  I order that the applicant pay the Minister’s costs fixed in that amount

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  22 March 2017