CQU16 v Minister for Immigration
[2017] FCCA 489
•17 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQU16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 489 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – Tribunal’s failure to consider an issue raised by the delegate – jurisdictional error established. |
| Legislation: Migration Act 1958, s.65 |
| Cases cited: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 |
| Applicant: | CQU16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2015 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 14 March 2017 |
| Date of last submission: | 14 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 17 March 2017 |
REPRESENTATION
| Counsel for the applicant: | Julia Lucas |
| Solicitors for the applicant: | Victoria Legal Aid |
| Counsel for the first respondent: | Ben Petrie |
| Solicitors for the first respondent: | Clayton Utz |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Clayton Utz |
ORDERS
The decision of the Administrative Appeals Tribunal made on 26 August 2016 in matter number 1610885 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2015 of 2016
| CQU16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is a citizen of Papua New Guinea. He arrived in Australia as a visitor on 24 April 2011. His visa expired on 24 July 2011 and he then became an unlawful non-citizen. He was located by immigration officials and placed in immigration detention on 16 June 2015. He applied for a protection visa on 22 June 2015.
The applicant’s claims
The applicant claimed that:
a)he is his father’s only son;
b)the applicant’s paternal grandfather had two children from his first marriage, the applicant’s father and a childless uncle;
c)the applicant’s paternal grandfather had a second marriage which produced seven children and 30 grandchildren;
d)the applicant’s father inherited an acre of land from the applicant’s paternal grandfather;
e)the applicant and his father grew sweet potatoes on the acre of land;
f)a land dispute arose when the other branch of the family (from the paternal grandfather’s second marriage) began to encroach on this land, leading to arguments;
g)the land in respect of which the land dispute arose was customary land, meaning that there was no legal title to it;
h)disputes in relation to such customary land are dealt with by village chiefs and the village council;
i)at a meeting called by the council to settle the dispute over the land, the other branch of the family assaulted the applicant’s father and indicated that, if the applicant pursued the matter of the land dispute, the other branch of the family would attack the applicant;
j)the applicant approached the police who said it was a matter for the village chiefs and council;
k)the applicant removed crops from the land planted by the other branch of the family;
l)the other branch of the family decided to kill him;
m)the other branch of the family came with weapons to kill him and took his land by force;
n)a councillor secretly told the applicant he had to run away, otherwise he would be a dead person; and
o)the applicant arrived in Australia on 24 April 2011.
The Tribunal’s reasons
The Tribunal noted various inconsistencies in the evidence given by the applicant and given by others in support of his claims. The Tribunal did not accept that the applicant had told the truth about the land dispute.
The Tribunal did not accept that the applicant feared that he would be killed by members of the other branch of his family. The Tribunal did not accept that the applicant had a well-founded fear of persecution.
In relation to complementary protection, the Tribunal did not accept that the applicant fled his village because he feared for his life. The Tribunal considered that, as that was the only claim made by the applicant, and as the Tribunal did not accept it, there was no other basis to consider that the applicant might suffer significant harm if he were to return to Papua New Guinea.
Ground 1
The first ground of review in the application filed on 20 September 2016 and amended on 15 February 2017 is:
The Tribunal denied the applicant procedural fairness, constructively failed to exercise its jurisdiction, or otherwise failed to carry out its task by not making a finding in relation to the applicant’s claim to have suffered harm arising from the land dispute.
Particulars
(a)The applicant expressly claimed that the land dispute arose from land his father had inherited. When another branch of the family began to encroach on the land, the applicant pulled out the crop and arguments ensued. At one point, the clansmen came yielding [wielding?] weapons to take the land by force and threatened to kill the applicant.
(b)The applicant produced witness statements which corroborated the applicant’s claim to have suffered harm at the hands of his own clansmen arising from the land dispute.
(c)The Tribunal did not accept that the applicant was telling the truth about the land dispute (at [29]). This was based largely on inconsistencies between the applicant’s evidence and the witness statements. The inconsistencies led the Tribunal to “give greater weight to the problems which I have with [the applicant’s] evidence…than I do the documents which he has produced in support of his application.”
(d)The Tribunal was required lawfully to consider and to take into account what happened to the applicant in the past in considering whether there was a real chance that the applicant would suffer serious harm in the future.
(e)The Tribunal failed to make a finding either accepting or rejecting whether the land dispute and incidents arising from the land dispute had occurred.
(f)In doing so, the Tribunal misapplied the test under s 36(2)(a) and, consequently, also under s 36(2)(aa) of the Migration Act 1958 (the Act).
This ground of review concerns particularly paragraph 29 of the Tribunal’s reasons for decision. That paragraph is as follows:
For the reasons given above I do not accept that [the applicant] is telling the truth about the land dispute and in particular about the incident in which he claims 30 members of the other branch of his family armed with weapons came and took his land by force. I do not accept that, as he has claimed, he fears that he will be killed by members of the other branch of his family (or people acting on their behalf) because they fear that he or his descendants will try to reclaim the disputed land. I give greater weight to the problems which I have with [the applicant’s] evidence as outlined above than I do to the documents which he has produced in support of his application. This being the only claim which [the applicant] has made, I do not accept that he is outside his country of nationality owing to a well-founded fear of persecution as required by the definition of a refugee in section 5H of the Migration Act. For the reasons given above, therefore, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under paragraph 36(2)(a) of the Act.
The applicant argued that the Tribunal was obliged to make a finding of fact on whether the land dispute had occurred, but that it had failed to do so, merely saying that the applicant had not told the truth about the land dispute.
The first respondent argued that the Tribunal had no such obligation, as s.65 of the Migration Act 1958 requires the Tribunal to reject a visa application if it is unable to reach the requisite state of satisfaction. In support of that argument, the first respondent referred to the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 where Black CJ, Sundberg and Bennett JJ said:
16.The primary judge said the Tribunal could reject the respondent’s application for a protection visa only if either his claims were rejected or if it found that circumstances had so changed in Fiji as to make the claims no longer relevant to his likely treatment on return. In our view, in a case such as the present, the Act imposes no obligation on the Tribunal to make positive findings either accepting or rejecting claims. In reviewing a decision, the Tribunal stands in the shoes of the original decision-maker, in this case the Minister’s delegate. See s 415 and Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. The delegate is bound by s 65 of the Act, as it applies to a protection visa, to grant the visa if satisfied that the applicant is a person to whom protection obligations are owed. In the absence of that satisfaction, the section requires the delegate to reject the application. Section 65 shows that the relevant decision is not whether a person is or is not a refugee, but whether the decision maker is satisfied as aforesaid. As was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274 275:
“A condition of determination is the Minister’s satisfaction. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that a person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution. This is the ‘decision’ for which provision is made by the Act.”
17.We are unable to agree with his Honour’s statement that “in the absence of findings as to the facts, either favourable or unfavourable to the [respondent], the Tribunal could not reach the requisite state of satisfaction, or the requisite state of non-satisfaction”: see [9]. As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant’s claims were at “such a general and vague level that the Tribunal cannot establish the relevant facts”, and therefore had made no findings either accepting or rejecting the claims. The Tribunal’s approach was upheld by a Full Court at [15]:
“It can be seen from the form of [s 65(1)] that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.”
See also NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033 at [33] and Applicant A159 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 473.
I accept the first respondent’s argument on this matter. It is clear that the Tribunal did not accept the applicant’s claims about the land dispute. That was for reasons concerning inconsistencies between the applicant’s claims and the supporting material provided by other people. On the authority of VSAF, it was not necessary for the Tribunal to make a finding about the land dispute in circumstances where it was not able to reach the necessary state of satisfaction because it did not accept that the applicant was telling the truth.
Moreover, the Tribunal expressly stated that it did not accept that the applicant feared he would be killed for reasons connected with the land dispute. That is, the Tribunal made a finding that the applicant did not have a subjective fear in relation to his claims of harm arising from the land dispute. That was sufficient to dispose of the matter.
This ground is without substance.
Ground 2
The second ground of review in the application filed on 20 September 2016 and amended on 15 February 2017 is:
The Tribunal erred by failing to correctly construe and deal with a claim or component integer expressly raised by the applicant or otherwise squarely raised on the material before it and/or failed to take into account a relevant consideration.
Particulars
(a)The applicant expressly claimed to fear harm by reason of the fact that he no longer possessed the land which was the subject of the dispute.
(b)Further, or alternatively, there was evidence squarely raised on the materials that:
(i) the applicant’s land had since been taken over; and
(ii) an applicant’s right to land depended upon being an active member of the group and could be lost by moving away for too long.
(c)The Tribunal was required lawfully to consider whether the applicant had lost the land and, whether by reason of having lost the land, the applicant would suffer serious harm in the form a denial of capacity to earn a livelihood of any kind, where the denial threatened his capacity to persist [subsist?] as provided by s 5J(5)(f) of the Act.
(d)The Tribunal failed to consider and make a finding about whether, and in what circumstances the applicant had lost the land and any consequence arising from this.
(e)By reason of these matters, the Tribunal constructively failed to exercise its jurisdiction.
The applicant noted that the delegate had made a finding that the applicant had abandoned his land. The applicant also noted that the delegate had cited country information to the effect that land can be lost if its owner moves away for too long.
As the applicant had been in Australia from 24 April 2011 until the Tribunal made its decision on 26 August 2016, the applicant argued that an issue arose squarely on the materials about whether the applicant would have any land to return to, and whether he would be able to subsist, if he were required to return to Papua New Guinea. This was said to be an entirely separate issue from whether the applicant had lost his land due to the alleged land dispute.
The first respondent argued that the applicant only put his claim on the basis of a fear for his life in connection with the land dispute. That may be so. But the Tribunal is obliged to consider issues or claims that arise on the materials whether an applicant has articulated them or not. In the present case, the delegate’s decision raised an issue that was before the Tribunal about whether the applicant had abandoned his land.
At paragraph 16 of the Tribunal’s reasons for decision, it is indicated that the Tribunal clarified with the applicant at the commencement of the Tribunal hearing that the applicant:
had no reasons for leaving Papua New Guinea other than the situation arising from the land dispute.
Notwithstanding that concession, the Tribunal was obliged to consider any claim that arose on the materials, including any claim that arose by reason of the delegate’s finding that the applicant had abandoned his land.
The necessary follow up question is whether the applicant had made any claim that he would not be able to subsist if he did not have access to his land, or whether that issue arose on the materials.
In the applicant’s application for a protection visa, the following question and answer appeared (CB39):
97.Do you think you will be able to relocate within that country(s)?
No ☒ Give details about why you are unable to relocate
Because its a custom that its not allowed for someone or not relative to go to live or relocate in other place, because different cultures and more than 800 languages so its very difficult to relocate. (errors in original)
It seems to me that the applicant’s answer to question 97, in effect, raised a claim that he would not be able to live anywhere in Papua New Guinea other than on his land, and that claim gave rise to a question about whether he would be able to subsist.
Consequently, the Tribunal was required to consider, but did not consider, whether the applicant had abandoned his land and, if so, whether that meant that he would have no ability to subsist in Papua New Guinea if he were to return there.
The Tribunal’s failure to consider those matters meant that it fell into jurisdictional error.
Conclusion
As one of the applicant’s grounds has been made out, the matter must be remitted to the Tribunal for determination according to law. The first respondent will be required to pay the applicant’s costs of the proceeding.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 17 March 2017
Correction
The First respondent's name was corrected on the first page of the reasons for judgment.
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