CNM16 v Minister for Immigration

[2018] FCCA 254

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNM16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 254

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visa – applicants claiming a fear of harm in Tonga – principal applicant not believed – other applicants citizens of the USA – whether the Tribunal erred in relation to a non-disclosure certificate considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 438

Cases cited:

BEG15 v Minister for Immigration [2017] FCAFC 198

BZV15 v Minister for Immigration & Anor [2017] FCCA 981

First Applicant: CNM16

Second Applicant: CNV16

Third Applicant: CNW16

Fourth Applicant: CNX16

Fifth Applicant: CNY16

Sixth Applicant: CNZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2428 of 2016

Judgment of: Judge Driver

Hearing date: 5 February 2018

Delivered at: Sydney

Delivered on: 15 March 2018

REPRESENTATION

The Applicants appeared in person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The application filed on 8 September 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2428 of 2016

CNM16

First Applicant

CNV16

Second Applicant

CNW16

Third Applicant

CNX16

Fourth Applicant

CNY16

Fifth Applicant

CNZ16

Sixth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 August 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.  The relevant protection claims were principally made by the first applicant (applicant), although the other applicants did make some claims, both in relation to Tonga and in relation to the impact of separation from the applicant.

2. The following statement of background facts is derived from the submissions of the Minister filed on 25 January 2018.

3. The applicant, a citizen of Tonga, arrived in Australia on 10 September 2013 as the holder of a visitor visa. 

4. The applicant applied for a protection visa on 28 May 2014.[1]  The applicant claimed to fear harm on return to Tonga because he had an affair with a woman and due to his involvement in politics.[2]  The second, third, fourth, fifth and sixth applicants are the wife and children of the applicant, and they are citizens of the United States of America.[3]  These applicants were included in the applicant's protection visa application as members of his family unit.  They did not in that application make their own claims for protection, although the Tribunal did consider the impact upon them of returning to the USA or Tonga. 

   [1] Court Book (CB) 1 to 34

   [2] CB 209 at [2]

   [3] CB 55 and 100 to 102

5. On 22 January 2015, the delegate refused the visa application on the basis of ss.36(3) to (5) of the Migration Act 1958 (Cth) (Migration Act), finding that the applicant had a right to enter and reside in the United States as he had a permanent residence visa valid to 24 October 2016.[4]  While the delegate accepted the applicant had an extra-marital affair in Hawaii, the delegate did not accept the credibility of the applicant's claims concerning the difficulties he experienced because of the affair, or that the applicant had any significant involvement in politics in Tonga.

   [4] CB 116 to 129

6. On 13 February 2015, the applicants applied to the Tribunal for review.  They attached a copy of the delegate's decision to their review application.[5]

   [5] CB 134 to 164

7. On 27 July 2016 the applicants appeared before the Tribunal.[6]  Only the applicant gave oral evidence at the hearing.[7]

   [6] CB 187

   [7] CB 209 at [5]

8. On 15 August 2016, the Tribunal affirmed the delegate's decision.  The Tribunal found that the applicant was not a credible witness and it rejected the entirety of the applicant's claims as to why he feared returning to Tonga.[8]  Based on its adverse credibility findings, the Tribunal did not accept that the applicant faced a real chance of persecution involving serious harm if he returned to Tonga.[9]

   [8] CB 220 to 222 at [83] to [96]

   [9] CB 223 at [99]

The present proceedings

1. These proceedings began with a show cause application filed on 8 September 2016.  The applicants continue to rely upon that application.  The grounds in the application are:

   The Tribunal decision is unfair & confusing.  My wife & children have USA citizen and Disagree with Para 77 Page 13 as I did not understand the system

   Tonga’s Police Department letter will be provided in due course also a letter from Tonga’s criminals.

   (errors in original)

2. The application is supported by a short affidavit filed with it, which I received in evidence.  I also received the court book filed on 3 February 2017.

3. The applicants denied receipt of the court book, but I accept that it was sent to them by ordinary pre-paid post and by email in February 2017.  The second applicant showed me an email exchange on her mobile phone, including a request by her for a document to be re-sent, but that did not relate to the court book.  I provided the applicants with the original court book from the court file. 

4. I also received into evidence the affidavit of Katherine Nicole Hooper made on 19 October 2017 and the documents exhibited to that affidavit.[10]  The applicant denied any knowledge of that affidavit and the exhibit, although I accept that they were sent to the applicants.  I provided a copy of those documents to the applicants.

   [10] Exhibit KNH1

5. Only the Minister prepared pre-hearing submissions in accordance with procedural orders made by a registrar.  The applicant denied receipt of the Minister’s outline of submissions, although it was sent to the applicants in the week prior to the hearing of this matter on 5 February 2018.  I called on counsel for the Minister to make oral submissions first and then invited the applicant to respond orally.  He indicated his disagreement with the Tribunal decision, especially its adverse credibility findings.  He also commented on the documents contained in Exhibit KNH1 and told me that the US criminal history referred to in those documents was of less significance than might appear and that a tax fraud conviction was under appeal.  The applicant told me that he would need to reapply for US residence, his former residence visa having expired in October 2016.

6. I invited written submissions from the applicants within 14 days in relation to the proceedings generally, but in particular in relation to the non-disclosure certificate and the documents contained in Exhibit KNH1.  Nothing further was filed.

Consideration

Minister’s submissions

1. The Minister submits that the grounds advanced in the application do not rise above a dispute over the merits of the Tribunal decision. 

2. In addition, the Minister raises an additional issue as a model litigant.

3. On 17 February 2015, a delegate issued, purportedly pursuant to s.438 of the Migration Act, a certificate regarding the disclosure of a document appearing on the Departmental file reference CLF2014/78763.[11]  It is accepted that the applicants were not put on notice of the certificate by the Tribunal.

   [11] CB 133

4. The document referred to in the certificate is exhibited to the affidavit of Katherine Nicole Hooper affirmed on 19 October 2017.  The document is a “five country check” disclosing the applicant's criminal history and his permanent residence status in the United States. 

5. At [103][12] the Tribunal considered that the applicant had advanced a claim to fear harm in the form of separation from his family (who are USA citizens).  The Tribunal disposed of this claim as follows:

   As to his claim that he does not want to be separated from his family, the applicant has provided differing evidence between the Department and Tribunal as to whether he has a right to enter and reside in the USA or not. His evidence at the hearing before me was that he had applied but was unable to return as he had been escorted by immigration from Hawaii. However at the Department interview he indicated he had a valid Permanent Resident Card to return to the USA until 24 October 2016 and had held one since 1990. He said he had a right to enter and reside in the USA. The Tribunal places weight on the evidence from the government authorities in USA, as noted in the department decision indicating he became a lawful permanent resident in 1990 and the documentary evidence that he has a permanent residence visa to return there until 24 October 2016. Based on the applicant's lack of credibility the Tribunal relies on the documentary evidence and finds that he has a right to enter and reside in the USA. It has also found above he is not credible as to his claim of fearing return to USA. His evidence at the hearing before me is that he has again applied to extend his visa. On the basis of the evidence before me the Tribunal does not accept the applicant faces a real chance of persecution involving serious harm as he will be separated from his family in the reasonably foreseeable future.

   [12] CB 223

6. The Minister contends that, properly construed, the Tribunal's finding above relies wholly on the delegate's decision as the source of the information regarding the applicant's USA permanent residence. The applicant provided a copy of the delegate's decision to the Tribunal when he applied for review, within the meaning of s.424A(3)(b). The applicant was therefore on notice of the gist of the relevant information covered by the certificate (and in some respects, confirmed it himself). Accordingly, any failure to provide the applicant with the certificate or the folios themselves did not result in him losing any opportunity to advance his case before the Tribunal. In these circumstances, there is said to have been no denial of procedural fairness and/or any such denial was not material and/or relief should be refused on discretionary grounds as the applicant suffered no practical injustice.[13]

   [13] BEG15 v Minister for Immigration [2017] FCAFC 198; BZV15 v Minister for Immigration & Anor [2017] FCCA 981

Applicants’ submissions

1. The applicants did not take up the opportunity I afforded them to file post hearing submissions.  Regrettably, the applicant’s oral submissions simply express disagreement with the Tribunal decision.

Resolution

1. As was apparent at the time of the trial of this matter, the applicants are essentially concerned with the merits of the Tribunal decision, which are beyond the scope of this proceeding.  The Tongan Police letter, which is referred to in the application for review, is reproduced at CB 200.  The Tribunal dealt with that letter at [86] of its reasons, where the Tribunal stated:[14]

   In making the findings the Tribunal has considered the letter from the police in Tonga as to the applicant’s life being in danger due to the affair and political issues with the later Baron Vaea.  However on the basis of the information as to widespread corruption and document fraud among government in Tonga[15] as raised with him, and on the basis of the applicant’s complete lack of credibility the Tribunal gives the document no weight.

   (footnote retained)

   [14] CB 221

   [15] US Department of State Report on Human Rights, Tonga 2015 and Human Rights Report in Freedom of the Wold 2015 on government corruption including a case involving the forgery of passports by a government official.

2. I see no error in the Tribunal’s manner of dealing with that letter.

3. In my opinion, nothing raised by the applicants points to, let alone establishes, any jurisdictional error by the Tribunal. 

4. Neither, in my view, does the issue of the non disclosure certificate give rise to any jurisdictional error.  The Minister concedes that the certificate is invalid.  The Minister concedes that the Tribunal did not disclose either the existence of the certificate, or the documents covered by the certificate, to the applicants.  The Tribunal decision is entirely silent both as to the certificate and the documents.

5. The documents potentially bore on two issues: the first was the applicant’s resident status in the USA and the second was the applicant’s criminal record in the USA. The first issue was dealt with by the delegate in his reasons, in the context of the application of ss.36(3) – 36(5A) of the Migration Act. I do not rule out the possibility that the delegate’s decision was in some way affected by the documents.

6. The applicant provided the delegate’s decision to the Tribunal with his review application.  The Tribunal took a different approach to the delegate on the issue of whether the applicant had access to a safe third country.  The Tribunal took the view that the applicant’s country of reference was Tonga and assessed his claims in relation to Tonga.  The Tribunal’s decision in relation thereto turned on its adverse credibility findings.  While the Tribunal found at [103][16] that the applicant had a right to enter and reside in the USA, it accepted that this was limited as to time until 24 October 2016 and only dealt with that issue in relation to the applicant’s claimed fear of separation from his family.

   [16] CB 223

7. There is nothing to indicate that the applicant suffered any disadvantage by non disclosure of the certificate or the documents covered by it in relation to the issues of his nationality and right of residence in the USA.

8. In my opinion, the criminal charges and convictions in the USA referred to in the documents had no bearing whatsoever on the Tribunal’s decision.  Those charges and convictions were irrelevant to the applicant’s circumstances in Tonga, upon which the Tribunal’s decision turned. 

9. I find that, on the facts of this case, the Tribunal did not fall into error by its failure to disclosure the certificate or the documents purportedly covered by the certificate.

Conclusion

1. The applicants have 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.

2. I will hear the parties as to costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  15 March 2018