CMF16 v Minister for Immigration
[2019] FCCA 1374
•7 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CMF16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1374 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa to the applicant – Administrative Appeals Tribunal was not satisfied that the applicant was a refugee for the purposes of the Refugees Convention criterion or that the applicant faced a real chance of ‘significant harm’ – no jurisdictional error identified – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.91R |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002 |
| Applicant: | CMF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2401 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 7 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms K. Evans |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 6 September 2016 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,000.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 12 June 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2401 of 2016
| CMF16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a male citizen of Fiji of Indian ethnicity aged 41 years, having been on 13 July 1977.
By Application filed in this Court on 6 September 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 12 August 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 February 2015 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background and Claims for Protection
The Applicant arrived in Australia on a Visitor (Class TV) (Subclass 600) visa (Visitor visa) on 4 October 2014 and lodged his Protection visa application on 13 October 2014.
In an undated written statement made by the Applicant in support of, and which formed part of, his Protection visa application, he claimed that he believed “that Australia is the best country in the world today” and that since arriving in Australia he had “noted many vast differences in the running of the Australian Government and its Policies” and the “present Fijian Military Government”.
He further stated that he was a Fijian person of ethnic Indian background, had been born in Lautoka and had lived there on a long-term basis and was a law abiding and regular member of an Islamic mosque group. He would be in a financial situation and face problems if he was forced to return to Fiji.
That undated written statement was amplified by a further statement made to one Mr Alex Dean in an email dated 13 October 2014, which also formed part of his Protection visa application, in which it was said that he had arrived in Sydney on 4 October 2014 to visit his family members in Australia on a Visitor visa for four weeks and during that short stay he had noticed that Australia was a beautiful and very fair country. He further said that if he was forced to return to Fiji he would be significantly harmed, arbitrarily deprived of his life and subjected to inhumane treatment. He therefore wished “to be assessed against the status of a Refugee Claim and against the relevant Australian law” and claimed that the authorities in Fiji would not be able to give him the required protection as they do not have the resources to assist him and others in his position, as they have many internal and important matters to deal with.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 28 January 2015.
In her Decision Record the Delegate recorded that:
The applicant said he has not experienced any problems in Fiji on account of his religion. He said he will not experience any problems in Fiji on account of his religion if he returns to Fiji.
The applicant’s purpose in coming to Australia was to work to earn money to improve his family’s circumstances in Fiji.
At the applicant’s PV interview, I asked him why he came to Australia. The applicant explained how the cost of living is high in Fiji and he has to support his family, that is, his aged parents and wife. He said he has no savings and he has no chance there to earn more money. He spoke about the difficult financial circumstances of his family, including the lease arrangements of their accommodation.
He then saw an advertisement in the newspapers about Alex Dean helping people obtain work permit to come to Australia to work. He said he went to Alex Dean’s office and spoke to the receptionist who told him that Alex will bring him to Australia and get him a work permit. The applicant said he paid Alex to lodge a visitor visa application to come to Australia. The applicant provided Alex’s business card, receipts for money he paid to Alex and an information sheet that Alex gave him for the purpose of lodging a visitor visa to Australia.
The applicant said it was not his intention to come to live permanently in Australia. He said he does not fear returning to Fiji. He said it was not his intention to seek protection in Australia. His intention of coming to Australia was to work, earn money and then return to Fiji. However, he said Alex did not give him any work when he came to Australia. The applicant said he was cheated by Alex.
The Delegate also recorded that the Applicant had provided a written statement to her at the end of the interview which was consistent with the oral evidence given at the interview before the Delegate and that statement appears at Court Book page 73. It stated in part:
I came to Australia because I was promised by Alex Dean that I would be given a work permit and I can go back to Fiji.
… I went and saw Alex in his office and he filled out all this paperwork and I signed them not realising that he has placed me under a refugee status … I already knew that Fiji is not classified as a refugee country …
I was working in a factory in Fiji as a machine operator, I was earning enough to survive. But when I met Alex, the hope he gave me got me quit my job looking for a better future. My wife and myself, we made this decision that I can come to Australia to earn some money while my wife can life with her parents and then when I go back to Fiji I can buy a piece of land and build a small house and maybe we can have a family.
…
I do not want to stay in Australia permanently but if could only be granted a work permit.
In the result, the Delegate found that the Applicant was not a refugee and that he did not fear any harm if he were to return to Fiji, and she refused to grant the Protection visa to the Applicant.
Tribunal Decision
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 24 March 2015 and gave a copy of the Delegate’s Decision Record to the Tribunal at the same time. He appeared before the Tribunal on 10 August 2016 to give evidence and present arguments.
From [23] – [33] of its Decision Record, the Tribunal recorded the Applicant’s claims and the material before it which included:
a)the Applicant’s written claims;
b)an audio recording of the Applicant’s interview with the Delegate;
c)the Decision Record of the Delegate under review; and
d)the claims made by the Applicant at the Tribunal hearing.
At [30] of its Decision Record the Tribunal recorded that the Applicant had told it that he was currently living with his sister in Australia and has done so since his arrival, that he was working as a machine operator at One Steel and that he spoke almost every day with his wife by phone.
At [32] of its Decision Record the Tribunal recorded that the Applicant had stated that he did not think he could get a work visa to work in Australia as he did not have a certificate as a machine operator and that he had worked in Australia for over 18 months to save a little money and that his priority was to use this money for his house and renew his lease in Fiji.
Then at [43] – [44] the Tribunal stated its ultimate conclusions as follows:
[43] The Tribunal finds that the applicant’s claim to fear returning to Fiji due to his difficulty in finding employment which provides an adequate income has no Convention nexus as he does not have a fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[44]The Tribunal is sympathetic to the applicant’s economic circumstances, particularly after he lost his house in the cyclone. Nevertheless, the Tribunal is satisfied that there is no real chance he will suffer serious harm (having regard to the examples of ‘serious harm’ set out in s.91R(2) of the Act) or that there is a real risk that the applicant will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) as a result of his economic circumstances if he returns to Fiji now or in the foreseeable future.
Accordingly, the Tribunal affirmed the Delegate’s decision not to grant the Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Applicant relied on the following Grounds in his Application:
1.The Tribunal accepted my evidence about the theft of my cattle by indigenous Fijians.
2.The Tribunal accepted some level of social discrimination against Indo-Fijians in Fiji and accepted that I lost my house in the cyclone.
3.The Tribunal’s conclusion that the Member is satisfied that there is no real chance that I will suffer serious harm is contrary to the definition of real harm as well as serious harm. I do believe that I will suffer significant harm as per the Refugee definition under the Migration Act as a result of my economic circumstances and the poor situation I am in and that it would be unlikely that I could lead a life of dignity in Fiji.
Consideration
Ground 1
This Ground makes no meaningful assertion of jurisdictional error by the Tribunal and merely restates a finding made by it. The Ground refers to the claim, made for the first time by the Applicant before the Tribunal, that his livestock had been stolen by indigenous Fijians just before he came to Australia in 2014, as recorded at [33] of the Decision Record of the Tribunal.
This claim was accepted by the Tribunal and it dealt with it at [42] of its Decision Record as follows:
[42] The Tribunal accepts the applicant’s evidence about the theft of his cattle by indigenous Fijians prior to his departure to Australia. Based on the above report the Tribunal accepts that there is some level of social discrimination against Indo-Fijians in Fiji and this theft may have some basis in discrimination against Indo-Fijians. However, the country information also indicates the theft could just have easily be motivated by poverty on the part of the thieves. Based on the above evidence the Tribunal is not satisfied that this incident falls into the category of serious harm (having regard to the examples of ‘serious harm’ set out in s.91R(2)of the Act) or significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act).
I note that the report referred to at [42] of the Decision Record is to the DFAT 2015 Fiji Country Report (DFAT report) extracted and considered by the Tribunal at [38] – [41] of its Decision Record. In my view there is nothing “irrational” or “capricious” or “lacking in an intelligible justification” in the Tribunal’s reasoning and findings about the theft of the livestock.
Accordingly, Ground 1 is not made out.
Ground 2
This Ground also does not make any meaningful assertion of jurisdictional error but merely correctly records findings of the Tribunal which it went on to find did not satisfy it that the Applicant was a refugee or that there was a real chance that he would suffer significant harm if he returned to Fiji. In relation to this Ground, the Tribunal accepted at [42] of its Decision Record the DFAT report’s view that:
… Indo-Fijians face a low level of societal discrimination on the basis of their race/nationality.
This finding was consistent with the Applicant’s own statements to the Delegate that he had not experienced any problems in Fiji on account of his religion and he did not fear returning to Fiji. Further relevant to this Ground, the Tribunal recorded at [31] of its Decision Record the claim made at the Tribunal hearing for the first time that the Applicant’s home had been destroyed by a cyclone: see [17] above.
Accordingly, in my view, Ground 2 is not made out.
Ground 3
This Ground merely argues with the findings of the Tribunal and amounts to the seeking of impermissible merits review of the decision of the Tribunal. If and insofar as it asserts that the Tribunal misunderstood the law and criteria for the grant of the Protection visa, it also fails.
That law is correctly stated from [5] – [15] of the Decision Record of the Tribunal both as to the Refugees Convention criterion and “serious harm” (as provided for by the then s.91R of the Migration Act 1958 (Cth) which remained applicable because the Applicant’s Protection visa application was made on 14 October 2014 prior to the repeal of s.91R as of 18 April 2015: see SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002 at [21] per Bromberg J) and “significant harm” for the purposes of the complementary protection criterion.
In my view, Ground 3 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed by this Court is to be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 22 May 2019
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