CLJ15 v Minister for Immigration
[2017] FCCA 467
•8 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLJ15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 467 |
| Catchwords: MIGRATION – Review of decision from the Administrative Appeals Tribunal – whether Tribunal made biased decision – whether Applicant was afforded procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2B)(c) |
| Cases cited: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884 SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 |
| Applicant: | CLJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2590 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 8 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 8 February 2017 |
REPRESENTATION
The Applicant: | In Person |
| Counsel for the Respondents: | Mr Tran |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2590 of 2015
| CLJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application for judicial review of the decision of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) (‘the Tribunal’) made 19 October 2015, which affirmed the decision of a delegate of the First Respondent not to grant the Applicant a protection (Class XA) visa (‘the visa’).
The Applicant filed his application for judicial review on 23 November 2015. In that application the Applicant set out two grounds of review as follows:-
“A. Refugee and in need of protection
1. Biased Decision and made Jurisdictional Error
The First and Second respondent had breached procedural fairness, in particular the “No Evidence Rule” as did not act fairly in reaching, to the unreasonable decision in relation to finding “the applicant do not have statutory effective protection in Australia under the Migration Act 1958 in the absence of any adverse information in relation to the protection claim. By doing this the Respondents deviated from deciding the matter on merits basis but made unfair judgments and, where a fair and impartial decision-maker would come to a decision finding in favour of the applicant under Subsection 36(2) of the Migration Act having considered the factual circumstance of the applicants claim.
Particulars:
I departed my home country with my brother due to the treat [sic] and persecution by Taliban for two reasons: 1. Because of our family, uncle/father in law’s working with American forces, 2. Because of our business providing breads to government and American forces on daily basis and we received direct threats from Taliban. We eventually arrived into Australia and sought protection. I have fear of return to my home country because of the threats to my life.
The Second Respondent failed to correct the failure and error of the First Respondent and affirm his/her decision, and made the same error as the First Respondent and consequently breached the rule of Procedural Fairness.
B. Complementary protection
1. Jurisdictional error
The First and Second Respondent made jurisdictional error in wrongly [applying] the test of “real risk of significant harm” guided by the MIAC v SZQRB [2013] FCAFC 33.
Particulars
The First Respondent accepts the harmed [sic] claimed by the applicant is significant harm for the purposes of subsection 36(2)(a) of the Migration Act but finds against it concluding no real risk of significant harm base [sic] on his on [sic] speculations ignoring the facts and reality of the political and security situation of Afghanistan while he or she refers to Country report/information and other reports which clearly support the applicant’s claim but find against it.
The “real risk of significant harm” require logical probative evidence in order to determine the level of risk. The First Respondent determined that the level of “real risk of significant harm” in the absence of logical probative evidence therefore [applied] the test wrongly. This constitute [sic] jurisdictional error.
The Second Respondent did not correct the error of the First Respondent and by affirmed [sic] his/her decision the Second Respondent made the same error as the First Respondent did by not applying the test correctly. The test of the “real risk of significant harm” which requires logical probative evidence in order to determine the level of risk. The “real risk of significant harm” was determined in the absence of logical probative evidence. Therefore applying the test wrongly. This constitute [sic] jurisdictional error.”
The Applicant seeks an order that the decision of the Tribunal and the Minister be quashed, and that writs issue for the Applicant’s application to be determined according to law.
The First Respondent seeks dismissal of the Applicant’s application and costs.
On 27 April 2016 Registrar Buljan made orders by consent, which included that the Applicant file and serve any amended application, including any additional grounds of review with complete particulars of each ground and any affidavits and written submissions on or before 28 days before the final hearing date. The Applicant has not filed and served any further amended application and nor did the Applicant file and serve any written submissions.
The First Respondent relies upon submissions filed 25 January 2017. There is also before the Court evidence contained in the court book filed by the First Respondent on 4 May 2016.
The Applicant was given an opportunity this day to make oral submissions to the Court as to his application. He was assisted by an interpreter in the Pashto and English languages. That interpreter translated to the Applicant the First Respondent’s written submissions after the Applicant indicated that he had not had such submissions translated to him before the hearing commenced. The matter was stood down so that could occur.
The Applicant’s oral submissions to the Court were that the decision of the Tribunal is attended by jurisdictional error because the Tribunal did not accept the facts and documents put before it by the Applicant. The Applicant is not sure why the Tribunal had doubts about some of the matters put before it by the Applicant. Otherwise the Applicant’s submissions went to matters which are not relevant to this judicial review application. Those matters were that the Applicant has been in Australia, a foreign country, for some five years, and in the last year his work rights have been taken from him. Prior to that he was working full time and able to provide some support to his family who remain in Afghanistan. He has no lawyer helping him. Back in Afghanistan, his life is quite hard. The Applicant also claimed that he had a lawyer acting for him and that documents which he had given his lawyer were not passed onto the Tribunal. The Applicant did, in fact, have a registered migration agent represent him at the hearing before the Tribunal, and that agent was the authorised recipient for the purposes of the decision of the Tribunal. The document and accompanying translation which the Applicant claimed his migration agent had failed to provide to the Tribunal was undated, and the Court cannot determine at what point in time that document was prepared. There was no evidence before the Court of any fraud on the part of the Applicant’s lawyer before the Tribunal.
History
The Applicant is a national of Afghanistan. He arrived in Australia by boat on 16 August 2012. He claims that his arrival was, in fact, 11 August 2012. Nothing turns on this save that I note that in the Delegate’s decision record of 13 June 2014 the Delegate noted, as to the Applicant’s history and migration history, the following:-
“(3)… He was born in Kandahar, Afghanistan, on 5 October 1982, and lived there from birth until entering Pakistan illegally in March 2012.
In Pakistan he spent around 15 days in Quetta before travelling to Karachi where he spent another 15 days. Whilst in Pakistan, ‘a people smuggler’ arranged a genuine Afghan passport in his name, and a visa and airline ticket for Thailand.
The applicant flew to Thailand in April 2012. After 20 days he travelled by bus and car to the border of Malaysia where he crossed illegally in a small group. After 15 days in Malaysia, he travelled by vehicle in a larger group to the coast. This group entered Indonesia illegally by boat.
After two and a half months in Indonesia, the applicant was in a group that departed from Surabaya by small boat. Off the east Java coast, they transferred to a larger boat that sailed toward Australia. The boat was codenamed Lynbrook by Australian Border Protection Command and experienced difficulties at sea. Rescued by a Royal Australian Navy vessel, those on board arrived in Darwin 16 August 2012.”
The Applicant completed an irregular maritime arrival entry interview on 25 October 2012 and made an application for a protection (Class XA) visa on 18 December 2012. A delegate of the Minister refused that application on 13 June 2014 and on 21 July 2014 the Applicant applied to the Tribunal for review of the decision of the Delegate. The Tribunal acknowledged receipt of the Applicant’s application.
The Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. Following a request from the Applicant’s registered migration agent for an adjournment of the hearing date, the Tribunal acceded to such adjournment request and by correspondence of 22 July 2015, notified the Applicant’s registered migration agent that the request that the hearing be postponed had been agreed to and that the hearing was rescheduled to 2 September 2015.
The Applicant appeared before the Tribunal with the assistance of an interpreter in the Pashto and English languages on 2 September 2015, and was represented by his registered migration agent.
The Tribunal accurately set out the relevant law in paragraph 5 of its Statement of Decision and Reasons (‘Decision Record’). For the reasons set out in the Decision Record, the Tribunal concluded that the decision under review should be affirmed.
Tribunal Consideration of Claims and Evidence
The Tribunal considered the Applicant's claim for protection on the basis that the country of reference for the assessment of protection claims was Afghanistan. The Tribunal considered the claims made by the Applicant and in that consideration considered: the material put before it by the Applicant as set out in his claims for protection and the statutory declaration dated 5 December 2012; the claims made by the Applicant at the hearing; the documents provided by the Applicant to the Department of Immigration and Border Protection (‘the Department)’ as identified in the Decision Record and relevant country information.
The Applicant claimed that he would be persecuted for his actual or imputed political opinion as a perceived sympathiser of the American forces in Afghanistan because his father-in-law had been employed as a truck driver by the US forces in Afghanistan. The Applicant claimed in 2012, almost one month before the Applicant fled Afghanistan, the Taliban had stopped the Applicant's father-in-law, who was doing a night shift at the time, and brutally beheaded him. The Applicant’s father-in-law was also the Applicant's uncle.
The Applicant also claimed that he and his brother received a threatening letter from the Taliban about 25 days after the death of his father-in-law. That letter, it was claimed, said that the Taliban had killed the Applicant’s father-in-law because he was betraying the country. The Applicant and his brother were suspected of being American spies and were told that they would “suffer the consequences of cooperating with foreign forces.”
The Tribunal had credibility concerns with the claims of the Applicant and put such concerns to the Applicant, in particular the Tribunal did not accept that the Applicant's father-in-law was working for the American forces in Afghanistan; that he had been targeted by the Taliban; that he had been killed by the Taliban; or that the Applicant himself had received threats from the Taliban.
The Tribunal, as set out in paragraph 42 of the Decision Record, advised the Applicant that it had seen no evidence of the father-in-law's beheading in the independent country information sources. The Tribunal then set out various country information that it had referred to and on which it relied and indicated that it was prepared to accept based on country information, that the Taliban and insurgents may target a person, in this case the Applicant, simply because the person is related to another person, the Applicant's uncle and father-in-law, who works for the US military. However, the Tribunal did not accept that in the Applicant's case his father-in-law was working for American troops and was targeted by the Taliban.
The Tribunal set out in its Decision Record its reasons for its findings, which included not just country information but inconsistencies in the evidence of the Applicant and the Tribunal's findings that some of the evidence of the Applicant was implausible.
The Tribunal found that the Applicant had made up the claim that he and his brother had to flee Afghanistan because their lives were at risk and found that the Applicant, his brother and their families did not experience any type of harm in the past and they were not of any interest to any anti-government elements.
In respect of the question of returnees from Australia, the Tribunal noted that millions of people have returned from abroad to Afghanistan. The Tribunal noted the country information on which it relied and set it out in its Decision Record. The Tribunal said at paragraph 72 of its Decision Record:-
“ The Tribunal further considers that even if it becomes known that the applicant has travelled to Australia and sought asylum here through various expatriate networks, this would not be enough to cause the Taliban or other insurgents to seek to harm the applicant. The Tribunal notes that there is a level of violence in Kandahar, but as discussed with the applicant at the hearing the country information does not indicate that someone with his profile and personal characteristics (Sunni and Pashtun, who has had no personal or familial association with the government or foreigners) would face a real chance of serious harm.”
The Tribunal further found that the Applicant would be able to return to Afghanistan and resume his former occupation as a baker and that he would not face a real chance of serious harm amounting to persecution for any reason.
The Tribunal was not satisfied the Applicant was a person to whom Australia had protection obligations under the Refugees Convention. The Applicant thus did not satisfy the criterion set out in s.36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’). In its consideration of sub-s.36(2B)(c) of the Act, the Tribunal noted that it had considered recent country information, the selection and weight given to such information being I note a matter for the Tribunal, and did not accept that the level of generalised violence in Afghanistan and in Kandahar in particular was so widespread that the Applicant faced a real risk of significant harm. The Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under 36(2)(aa) of the Act.
Consideration
I accept the First Respondent’s submission that the grounds of the application as presently articulated are insufficiently particularised. They refer to both the decision of the Delegate and the decision of the Tribunal. The Court has no jurisdiction with respect to the decision of the Delegate.
The grounds which may be said to arise in this application are:-
a)that the Tribunal made a biased decision. No evidence has been led by the Applicant in support of that claim and any finding of apprehended bias should not be lightly made. Essentially, the Applicant takes issue with the Tribunal’s findings, but it is not permissible for this Court to conduct a merits review;
b)that the Tribunal denied the Applicant procedural fairness. Again, the Applicant leads no evidence in support of that claim. The Tribunal did all that it was required, statutorily, to do. It invited the Applicant to a hearing and engaged with the Applicant as to his claims during the course of that hearing. Country information was referred to in the hearing and subsequent to the hearing, and on 23 September 2015, the Tribunal wrote to the Applicant, inviting the Applicant to provide comments in writing on the Department of Foreign Affairs and Trade’s (DFAT) New Country Information Report (Assessment) of 18 September 2015, which had just been released;
c)that the Tribunal failed to consider claims or any integers of a claim put before it by the Applicant. There is no evidence to support that ground. The Tribunal did consider, carefully, each of the claims made by the Applicant and made findings open to it on the evidence. Those findings included a consideration of relevant country information. The Applicant is inviting the Court to engage in an impermissible merits review (Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 272);
d)the Applicant argues the Tribunal found the Applicant did not face a real risk of significant harm in the absence of “logical, probative evidence.” This ground cannot succeed. It again invites the Court to engage in merits review. The Tribunal made findings on the evidence before it and it is clear that such findings were available to it on such evidence.
Section 36(2B)(c) of the Act provides that a risk will not be regarded as a real risk of significant harm if the Minister is satisfied that:-
“(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”
In SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (‘SZSPT’) the Court held that s.36(2B)(c) is engaged by a risk of harm (even amounting to torture) if the general population of which an applicant is a member was exposed to that risk. The widespread nature of the risk, whatever the specific gravity of it for an individual in the individual’s circumstances was enough to engage the exclusionary provision. In the Tribunal hearing, the Tribunal applied a more favourable test to the Applicant deriving from a decision in SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884, which held that a widespread risk can amount to a real risk of significant harm in appropriate cases. Applying this more favourable test, as submitted by the First Respondent, the Tribunal still concluded that the Applicant was not entitled to complementary protection. No different result would or could have been reached by the Tribunal had it applied SZSPT as submitted by the First Respondent. No relief can be granted in respect of that error.
The application will be dismissed with costs following the event.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 16 March 2017
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