CMW15 v Minister for Immigration

[2017] FCCA 1661

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMW15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1661

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether the Tribunal failed to assess an applicant’s claim – whether the Tribunal’s decision was not supported by evidence – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

First Applicant: CMW15

Second Applicant: CMX15

Third Applicant: CMY15

Fourth Applicant: CMZ15

Fifth Applicant: CNA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3227 of 2015

Judgment of: Judge Street

Hearing date: 18 July 2017

Date of Last Submission: 18 July 2017

Delivered at: Sydney

Delivered on: 18 July 2017

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Harish Prasad & Associates

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. Grant leave to the fourth applicant to discontinue the proceedings and dispense with the need for the filing of the notice of discontinuance.

2. The amended application is dismissed.

3. The first, third, fourth, and fifth applicants pay the first respondent’s costs fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3227 of 2015

CMW15

First Applicant

CMX15

Second Applicant

CMY15

Third Applicant

CMZ15

Fourth Applicant

CNA15

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal) made on 27 September 2015, affirming a decision of the delegate not to grant the applicants protection visas. The applicants were found to be citizens of Fiji, and their claims were assessed on that basis. The first and fifth applicants are husband and wife, and the second and third applicants are the first applicant’s children. There was a fourth applicant in respect of whom there has been evidence adduced that the fourth applicant has left Australia, and the proceedings were, with the leave of the Court, discontinued by the fourth applicant.

2. The first applicant arrived in Australia on 3 February 2014, having departed legally from Fiji on a visitor visa granted on 6 January 2014 and a passport issued in his own name. The application for protection was lodged on 24 February 2014.

Protection claims

1. The first application claimed to fear harm because of his previous political activities in Fiji and his political activities in Australia. The first applicant claimed that in April 2009 there was a planned visit to a particular island for the installation of the first applicant's cousin as the new village chief.

2. The first applicant alleges he was prevented from departing at the wharf by soldiers and, because of his conduct, was taken back to the soldier's barracks, where he was badly beaten and left in a mangrove patch. Despite this, the applicants were still able to attend the ceremony in July 2009. In November 2012, the first applicant was working as a private security officer in a nightclub when he was involved in an altercation with three army officers, and the officers found him later in the evening and beat him unconscious.

3. In October 2013 the first applicant was putting up leaflets for the political party, Soqosoqo Duavata ni Lewenivanua (“SDL”) when he noticed he was being followed by two men whom he thought to be army officers and one of whom was armed. The first applicant alleges that he feared for his life and resigned from his position at the nightclub and that two weeks later the first applicant's friends at the nightclub informed him that members of the army had come to the nightclub looking for the first applicant. The first applicant also advanced a claim that he had attended a protest against the current Fijian prime minister in Sydney and had been photographed at the protest.

4. On 23 July 2014, a delegate refused the application for protection visas and found that the applicants failed to meet the criteria under the Act. At the time of the application before the delegate no issue was raised that the first applicant was a former member of the military.

The Tribunal’s decision

1. Following the delegate's decision the applicants applied for review. That application was made on 15 August 2014, by different migration agents than those that had represented the applicants before the delegate. By letter dated 21 April 2015, the applicants were invited to attend a hearing on 19 May 2015, at which the first applicant appeared to give evidence and present arguments, and the applicants were invited by a further letter dated 20 May 2015 to attend a further hearing on 7 July 2015, and the first applicant attended on that occasion to give evidence and present arguments and was represented in the review by his migration agent.

Submissions to the Tribunal

1. Prior to the first hearing day the applicants’ migration agent sent submissions dated 18 May 2015 to the Tribunal. Those submissions identified criticisms in respect of the adverse findings by the delegate and then continued under a heading “Current Position”. In that regard the submissions referred to the first applicant continuing to receive information from acquaintances and relatives from Fiji. The submissions refer to the first applicant being reliably informed that former supporters of SODELPA and particularly former military officers continue to be targeted by the military under the direction of the government.

2. The submissions refer to the first applicant's brother sending a number of emails detailing such events. The submissions then identify the first applicant having exercised a right to join a protest group. The submission asserts that the current political position does not guarantee safety to citizens of Fiji.

3. There were then submissions advanced that the first applicant met the criteria under the Convention or for complementary protection. No express claim was made that the first applicant was a former member of the military, nor does any such claim fairly arise on those submissions before the Tribunal. Following the second hearing in July, further submissions were provided to the Tribunal dated 6 July 2015. Those submissions expressly referred to the most recent hearing and an issue being raised in relation to only high-profile public figures being at risk of being targeted in Fiji and that, therefore, the first applicant’s fears may not be well-founded.

4. Reference was then made in the submissions to the DFAT report, in particular, paragraphs including an assertion that the report fails to:

   “…specifically acknowledge the category of former military personnel and the harassment and persecution forced by such members of the military who are also perceived as a threat to the Bainimarama Government. Many of these people have been forced to flee Fiji and seek refuge in countries like Australia and New Zealand.”

5. The submissions continue to criticise the correctness of the report and refer to recent Amnesty International reports. No express claim is made in that submission that the first applicant was a former member of the military, nor does any such claim fairly arise on that submission to the Tribunal.

Findings

1. The Tribunal made adverse credibility findings in relation to the first applicant and found the first applicant not to be truthful witness. The Tribunal expressly referred to the written submissions of both July and May provided by the applicants’ migration agents.

2. The Tribunal also summarised the information that was provided, including, relevantly, a letter from a purported captain, commenting on the current political situation, in respect of which the Tribunal decided to place no weight on that document for identified reasons. That document did not identify the first applicant as having been a former member of the military.

Refugee assessment

1. The Tribunal accepted part of the first applicant’s claims in relation to the incident in April 2009 but found that he was not badly injured, and he was able to catch a cab and subsequently attend the installation of his cousin as chief. The Tribunal accepted the first applicant’s evidence that no further incident occurred with the authorities, including the Fijian Army or Police, in any way, until the alleged events at the nightclub in November 2012.

2. The Tribunal did not accept the first applicant’s evidence that he was attacked by army officers after an incident at a nightclub in November 2012. The Tribunal did not accept that the first applicant was threatened subsequent to that nightclub incident. The Tribunal was prepared to accept that the first applicant was a low-level or ordinary member of the SDL in Fiji but did not accept or find that he was a high-profile member or a committee member or any way involved in the SDL’s organisation.

3. Having considered the first applicant’s claims individually and cumulatively, the Tribunal was not satisfied that, if the first applicant were to return to Fiji, there is a real chance of serious harm, either because of his previous political activities in Fiji, his present political activities in Australia or for any other reason, including being detained in April 2009 when he was attending his cousin’s installation as chief and that, at one point, his family was considering commencing a claim for compensation in relation to his and their detention.

4. Tribunal was not satisfied that the first applicant has a well-founded fear of harm for a Convention reason should he return to Fiji now or in the reasonably foreseeable future.

Complementary protection assessment

1. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm within the meaning of s.36(2)(aa).The Tribunal was not satisfied that the first applicant is a person in respect to whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa).

2. The Tribunal found that, as the other applicants had no separate claims of their own and that their claims were made on the basis of being members of the family unit of the first applicant. The Tribunal found that the applicants failed to meet the criteria for the grant of any protection visa and affirmed the decision under review.

Proceedings before this Court

Grounds of the application

1. Mr Kumar of counsel appeared for the applicants, and the only ground of the amended application is as follows.

   1. The Tribunal's assessment of the claim of former military personnel face no real risk of harm (CB 193 - 4; AAT, p12 13 at (55) - [56]) is irrational and / or illogical and / or unreasonable and / or alternatively not supported by evidence.

   Particulars

   1.1 The First Applicant claimed (considered by AAT, CB 193 - 4; p12 -13 at [55])to be former military personnel (and at least implicitly accepted by the Tribunal).

   1.2 The Applicants' adviser submitted that the DFAT report did not contain exhaustive profiles of all the classes of persons who were at the risk of harm in Fiji (but was a broad report on the country).

   1.3 In assessing the Applicants' claim the AAT made findings (CB 192; AAT, p11 at [47] - [52] that:

   a. The First Applicant was former Fiji army personnel.

   b. The First Applicant's family were prevented initially by the army and police from attending the installation of his cousin as Chief

   c. The Applicant was involved in political activities in Fiji.

   d. The Applicant was detained, blindfolded, and his hands tied.

   e. The Applicant was punched and beaten.

   f. Was attacked by Fiji army personnel whilst he was working at the night club.

   g. The Applicant was involved in protests in Australia.

   h. The Tribunal's findings are not supported by evidence.

   1.4 The AAT determined that, based on these findings, Applicant's claim under s.36(2)(a) of the Act failed because he did not have a well-founded fear of persecution (CB 195; AAT at [61]).

   1.5 The Tribunal found that the DFAT report was recent and extensive (CB 194; AAT, p13 at [56]; [58]) and found that the Applicant's could not meet the claim as the First Applicant's profile did not fall within the DFAT country report.

   1.6 The DFAT country report did not purport to contain exhaustive profiles of every conceivable person's who would fall in the various profiles.

   1.7 In assessing the Applicants' claims, the Tribunal erred in finding that the claims were not credible.

   1.8 By engaging with the report and failing to assess the risks based on its finding the Tribunal's findings that is irrational / illogical and / or unreasonable.

   1.9 The Tribunal thereby committed jurisdictional error.

   (Errors in original)

Consideration

1. Mr Kumar confirmed that Grounds 2 and 3 were abandoned. In relation to Ground 1, Mr Kumar submitted that the May and July submission of the migration agent on behalf of the applicants should, by implication, be construed as giving rise to a claim that the first applicant feared harm because he was a former member of the military.

2. Mr Kumar took the Court to the content of the submissions and argued that there was a claim advanced on the papers that the Tribunal had failed to deal with, being the first applicant’s claimed fear of harm as a former member of the military and his profile that would thereby be affected in relation to the first applicant’s claimed fears.

3. No claim that the first applicant was a former member of the military was expressly made before the Tribunal. No such claim was made before the delegate. I do not regard the submissions to which Mr Kumar has referred as giving rise to a claim that the first applicant was a former member of the military, and no such claim fairly arises on the material before the Tribunal. Accordingly, there was no failure by the Tribunal to address part of the first applicant’s claims as advanced by Ground 1 of the amended application.

4. The adverse credibility findings by the Tribunal were open, and it cannot be said that those adverse credibility findings lack an evident and intelligible justification. The Tribunal provided detailed reasons in support of the adverse credibility findings that were logical, and rational, and identified matters that were not minor or trivial.

5. The assessment of the first applicant’s credibility was a matter for the Tribunal, and rejecting the first applicant’s credit is not something in respect of which it can be said that the adverse findings are not supported by evidence.

6. No jurisdictional error, as alleged in Ground 1, is made out.

Conclusion

1. Accordingly, the amended application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  29 August 2017