CQT15 v Minister for Immigration
[2017] FCCA 711
•19 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQT15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 711 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Ghana from cultists – applicant not believed – whether the Tribunal decision is vitiated by bias considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.424AA |
| Cases cited: AMA15 v Minister for Immigration [2015] FCA 1424 Minister for Immigration v SZVCH [2016] FCAFC 127 SZGIZ v Minister for Immigration (2013) 212 FCR 235 |
| Applicant: | CQT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3359 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 11 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms D Watson of Australian Government Solicitor |
ORDERS
The application as amended on 19 April 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3359 of 2015
| CQT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 November 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The applicant is a citizen of Ghana. He came to Australia in 1992, ostensibly to watch a boxing bout between Jeff Fenech and Azuma Nelson in Melbourne. He has been here ever since. Following his arrival in Australia in 1992 the applicant applied for recognition of his refugee status. That application was refused in December 1997.
Following the decision of the Full Federal Court in SZGIZ v Minister for Immigration[1] the applicant was permitted to make a second protection visa application, limited to the complementary protection criterion, which he did on 19 November 2013. On 29 May 2014 the delegate refused that protection visa application. The applicant sought review before the former Refugee Review Tribunal on 24 June 2014. He was invited to appear before the Tribunal at a hearing by letter dated 6 February 2015 and he attended the hearing on 9 March 2015.
[1] (2013) 212 FCR 235
As is apparent from the Tribunal’s record of that hearing, the Tribunal had serious doubts about significant aspects of the applicant’s claims. The applicant had claimed to have a “fetish church” or “fetish cult problem” in Ghana. He claimed to have provided material about the fetish cult to the Australian High Commission in Harare in 1992 when he applied for an Australian transit visa. He claims that that material has never been returned to him which puts him in danger if he ever returns to Ghana. The Tribunal was concerned that the applicant did not mention providing any sensitive information to the High Commission in Harare in his original protection visa application. It was mentioned for the first time before the Tribunal in December 1997. The Tribunal was also concerned that the applicant’s account of what he had actually given to the Australian High Commission in Harare changed over time. Moreover, the Tribunal records that the applicant was unable to explain why he gave the material to the High Commission in Harare. By the time of the Tribunal hearing, it was established that no record of such information remained at the High Commission and any relevant documents pertaining to his transit visa application had been destroyed after approximately two years.
The Tribunal was also concerned about the applicant’s claims in respect of his travel in 1992. He had applied for and been refused an Australian transit visa for a trip to Papua New Guinea, allegedly to visit an uncle, but his travel ticket gave Sydney as the final destination. The Tribunal reasoned that it was always the applicant’s intention to come to Australia.
The Tribunal concluded at [41] of its reasons[2]:
Having given careful consideration to all of the evidence before me, I do not accept that [the applicant] is telling the truth about his travel to Australia or his claimed problems in Ghana. I consider that his objective was always to come to Australia and that, having failed to obtain a transit visa from the Australian High Commission in Harare on 28 January 1992, he then travelled to Port Moresby via Hong Kong and applied for a visitor visa at the Australian High Commission in Port Moresby using the pretext that he wished to attend the Fenech-Nelson fight. I do not accept that he was telling the truth in his statement when he said that he only decided to travel on to Australia from Port Moresby after a Ghanaian whom he met in the street sold him a ticket for the Fenech-Nelson fight. Having regard to the problems with his evidence which I have identified above, I do not accept that he gave material about the fetish cult to the Australian High Commission in Harare as he has claimed, nor that a fetish church in Ghana was looking for him and his brother …, nor that he or his family had any problems with a fetish cult or indeed with [a named person’s] family.
[2] Court Book (CB) 214
For these reasons, the Tribunal affirmed the decision of the delegate.
The present proceedings
These proceedings began with a show cause application filed on 10 December 2015. The applicant now relies upon an amended application filed on 19 April 2016. The grounds in that application are expressed in narrative form in handwriting and in part address the procedural history of his protection application and in part the merits of that application. The applicant also refers to the fact that he has lived in Australia for over half of his life continuously and that he regards Australia as his home. He stresses the importance of information he says he provided to the Australian High Commission in Harare and says that he cannot leave Australia or go anywhere else without that information.
Importantly, the applicant also alleges that "tempers rose at both tribunal hearings when the issue concerning my important documents/information I gave to the Australian High Commission (Harare)" and that the Tribunal member "tried to bully me" "trying to force me to admit I didn't give vital/important information to the Australian High Commission (Harare)". In so far as these allegations may be construed as being grounds of review either alleging a denial of procedural fairness or bias in the Tribunal, the Minister submits that there is a lack of particulars supporting these allegations and no evidence has been filed by the applicant in support of the allegations, despite orders that any evidence, including any transcript, be filed by the applicant by 21 April 2016.
The matter came before me for a show cause hearing on 1 September 2016. At that time I ordered that the matter be listed for a final hearing on 11 April 2017 and required the applicant to produce the sound recording of the Tribunal hearing and to indicate to the Court which parts of the sound recording are material. I provided the parties with an opportunity to make further submissions. I made those orders on the basis that the applicant was, in effect, alleging bias on the part of the Tribunal which would allegedly be evidenced by relevant parts of the sound recording.
At the trial of this matter on 11 April 2017 the applicant produced two sound recordings, the first being a sound recording of his interview before the delegate and the second being the sound recording of the Tribunal hearing. I ruled that the first was not relevant to these proceedings but I agreed to listen to the parts of the sound recording of the Tribunal hearing identified by the applicant as relevant. The applicant also tendered a boarding pass, an airline ticket and a bank receipt relating to his travel in 1992, which I received as an exhibit[3]. The Minister also tendered a folder of documents relating to the applicant’s 1992 application for protection, which I received as an exhibit[4].
[3] Exhibit A1
[4] Exhibit R1
Consideration
The applicant contended in oral submissions that the latter part of the hearing before the Tribunal established what he described as “bullying” by the presiding member with raised tempers. That part of the recording related to the applicant’s evidence concerning his travel to Australia via Port Moresby and his claim based on the provision of documents to the Australian High Commission at Harare. The presiding member repeatedly pointed out to the applicant that he had not adequately explained his travel plans and why he had given fetish cult documents to the Australian High Commission. There was a strong difference of opinion concerning an enquiry made by the Australian High Commission in Port Moresby to the High Commission in Harare about whether the Harare High Commission knew anything adverse about the applicant. This was for the purpose of considering granting the applicant a visitor visa for the purpose of attending the boxing bout.
The High Commission in Harare had responded to this enquiry to say that it had no information, which the applicant asserted established that the High Commission no longer held the fetish cult documents he had provided. The Tribunal took the view that the response was a simple response to the Port Moresby High Commission’s enquiry about whether the Harare High Commission knew anything adverse about the applicant. During this discussion the applicant became agitated. The presiding member twice told the applicant that he was not treating the Tribunal with respect. The reason for this was not explained but appears to have been a result of the applicant either talking over the top of the presiding member or not giving a responsive answer to his questions. The presiding member’s tone of voice throughout the portion of the recording played was neutral. The applicant, on the other hand, became agitated. There is nothing to support an allegation of bias arising from the portion of the sound recording that was played at the request of the applicant.
In his submissions, the applicant also asserted that the sound recording had been tampered with by some person unknown between 55.19 and 55.30. That portion of the sound recording was played but there was nothing to indicate any interruption or tampering with the sound recording. The applicant thereupon withdrew the allegation.
The applicant’s submissions otherwise were directed to the merits of his claims for protection, his humanitarian concerns, and his determination not to leave Australia for anywhere else without the fetish cult documents he claimed he gave the High Commission in Harare. All of those matters are beyond the scope of these proceedings.
The Tribunal's decision concerns an application for a protection visa in which relevant consideration was limited to the complementary protection criteria, the applicant having previously been the subject of a refusal of a protection visa on Refugees Convention grounds in 1997[5].
[5] see Tribunal decision CB 205 at [1]
At the show cause hearing the Minister’s solicitor noted that the delegate considered the applicant's claims under both the Refugees Convention and the complementary protection criteria. The Tribunal confined its consideration to the issues relating to the complementary protection criteria[6].
[6] see AMA15 v Minister for Immigration [2015] FCA 1424 per Markovic J at [45]-[50] and SZRAG v Minister for Immigration [2016] FCA 189 per Katzmann J at [23]. See also the finding of this Court in SZVCH v Minister for Immigration & Anor [2015] FCCA 1424 which was overturned on appeal in the Full Federal Court of Australia [2016] FCAFC 127
The applicant claimed that he has a fetish church or fetish cult problem if he returned to Ghana. He also claimed that he had given information about this to the Australian High Commission in Harare in 1992 and this could pose a danger for him as the information had not been returned to him. Documents relating to this claim can be found at CB 47-62. A statement of the applicant's claims is at CB 28-35. The applicant apparently linked the alleged disappearance of his brother to this information being given to the High Commission.
The delegate did not accept the applicant's story that he had provided information to the Australian High Commission in Harare however, even if the delegate was prepared to accept that this occurred, it was not accepted that the Australian High Commission would then release this information outside of the Australian Government and that the applicant's fears that the cult would be aware that he had provided this information were purely speculative. His claim that he would be forced to abide by the cult's practices due to this information being handed over was also therefore not accepted. The delegate also found that, even if all of the applicant's claims were accepted, there would be effective state protection available to him to avoid the risk of being forced to practise a fetish cult.
Before the Tribunal the applicant again submitted material relating to his claim that he had provided information to the Australian High Commission in Harare[7]. That documentation indicated that no records could be located to substantiate the applicant's claims that information had been submitted to that High Commission.
[7] see CB 157-177
It is clear from the Tribunal decision that the applicant sought to agitate a number of issues which were identified as being irrelevant to the issues before the Tribunal[8]. The Tribunal correctly identified that a relevant issue was the applicant's claim that information had been released about him by the Australian High Commission[9].
[8] see Tribunal decision CB 209 at [21]
[9] see CB 209 -10 at [22] - [24]
The Tribunal then put information to the applicant in accordance with s.424AA of the Migration Act 1958 (Cth) regarding perceived inconsistencies between his current claims regarding this issue and earlier statements in support of his first protection visa application.
The Tribunal also put to the applicant, pursuant to s.424AA, information regarding his claim about his decision to travel to Australia only after he went to Papua New Guinea, which was inconsistent with his ticket that he travelled on from Harare, which had an ultimate destination of Sydney, and his previous failure to refer to issues with the fetish church or cult in his earlier application.
Due to the concerns that the Tribunal had about these inconsistencies, it was not prepared to accept any of the applicant's claims[10]. The decision under review was therefore affirmed.
[10] CB 214 at [41]
There is no apparent error in the Tribunal’s approach and reasoning. The conclusions reached by the Tribunal were open to it on the material before it. The procedure followed by the Tribunal was fair and in accordance with its statutory code of procedure.
In his written submissions, the applicant referred to the fact that there were two immigration files concerning his claims for protection and that the Tribunal only dealt with one of them. In fact, the Tribunal refers to the fact that it had received and perused both Departmental files. Exhibit R1 is the 1992 file in relation to the applicant’s original claims for protection. I have perused that file and see nothing material in it. The applicant maintains that important documents concerning fetish activities in Ghana have been lost by the Australian government and refers to earlier complaints he has made to the Commonwealth Ombudsman about that. Correspondence between the applicant and the Ombudsman regarding that complaint is contained in the court book but I see nothing arising out of that process having any bearing on these proceedings.
Finally, and in relation to an issue raised at the show cause hearing on 1 September 2016, the Tribunal was correct in finding that its review of the second protection visa application was restricted to the issue of complementary protection[11].
[11] see [17] above and Minister for Immigration v SZVCH [2016] FCAFC 127
Conclusion
I conclude that the decision of the Tribunal is not affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 19 May 2017
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