CQY15 v Minister for Immigration

[2017] FCCA 1483

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQY15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1483

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for protection visa – claim that decision of Administrative Appeals Tribunal was affected by jurisdictional error due to failing to take proper account of protection claims – no jurisdictional error – Tribunal properly considered all claims – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Minister for Immigration and Citizenship v MZYZA [2013] FCA 572

Minister for Immigration and Citizenship v SZRKT [2013] 212 FCR 99

Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

SZUTEv Minister for Immigration and Border Protection [2015] FCA 231
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Applicant: CQY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3374 of 2015

Judgment of: Judge Dowdy

Hearing date: 6 July 2016

Date of Last Submission: 2 June 2017

Delivered at: Sydney

Delivered on: 7 July 2017

REPRESENTATION

Counsel for the Applicant: Mr O Jones of Counsel

Counsel for the Respondents: Mr R White

Solicitors for the Respondents: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 11 December 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3374 of 2015

CQY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Afghanistan aged 53 years, having been born on 22 September 1963.

2. By Application filed in this Court on 11 December 2015 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 6 November 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 20 September 2013 refusing to grant to him a Protection (Class XA) visa (Protection visa).

Background

1. The Applicant applied for a Protection visa on 23 November 2012, having entered Australia at Christmas Island on 28 June 2012 as an unauthorised maritime arrival.

2. In a Statement of Claims dated 16 November 2012 and attached to his Protection visa application the Applicant claimed to be of Tajik ethnicity and a Muslim. He claimed that he returned to Afghanistan in 2009 after living unlawfully in Iran for many years. He claimed to have remained in Afghanistan for one year and in that year met a woman variously named as Thajeroo, Taji, Tajroh and Tajroo (Tajroo) when they were both visiting the same family. He and Tajroo then allegedly entered into a relationship, and his eventual proposal of marriage was met with opposition from Tajroo’s family. Allegedly he was assaulted by relatives of Tajroo and, fearing for his life, he fled to Iran. The Applicant also feared returning to Afghanistan on the basis that he would be killed by the Taliban whilst travelling on the roads.

Relevant Criteria and Law Applicable to Protection Visa Application

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

1. In his decision dated 20 September 2013, the Delegate found that he was not satisfied that Australia had protection obligations to the Applicant under either the Refugees Convention criterion pursuant to s.36(2)(a) of the Act or the complementary protection criterion pursuant to s.36(2)(aa).

2. The Delegate noted that the principal reason for which the Applicant claimed to have been targeted in Afghanistan was his involvement with Tajroo but that the Applicant had not claimed that Tajroo’s family had targeted him for Refugees Convention reasons. The Delegate therefore considered that the essential and significant reason for the harm feared by the Applicant was private in nature and not related to any of the reasons enumerated in the Refugees Convention.

3. Nevertheless, the Delegate also considered the Applicant’s claims as encompassing a claim to fear persecution, particularly at the hands of the Taliban due to race as an ethnic Tajik returning to Afghanistan, but in the result the Delegate was not satisfied that there was a real chance that the Applicant would face serious harm at the hands of the Taliban for any Refugees Convention reason were he to return to Afghanistan.

4. Further, given his factual findings the Delegate also did not accept that the Applicant met the complementary protection criterion with respect to his claimed fear of the Taliban and he found that the real risk of the Applicant suffering significant harm at the hands of Tajroo’s family was localised and he could accordingly relocate to Kabul to avoid any such harm.

Decision of Tribunal

1. On 27 September 2013 the Applicant lodged an application for review of the Delegate’s decision with the Tribunal through the same firm of migration agents as had lodged his Protection visa application.

2. By email of 20 March 2015 the Applicant’s migration agent lodged a written submission with the Tribunal dated 13 March 2015 which cited certain country information reports. The submission further expanded upon the Applicant’s claims to fear harm arising from threats of revenge from Tajroo's family, the increase in honour killings in Afghanistan and the ongoing violence and various social issues in Afghanistan, particularly in Kabul. Relevantly the letter of 13 March 2015 stated as follows:

   In addition to the documents, [CQY15] has now provided further information as follows:

   ·   ………

   ·   ………

   ·   ………

   ·   ………

   ·   ………

   ·   ………

   ·   ………

   ·        Thajeroo contacted [CQY15] in Australia 6 or 7 months ago. She had been forced to marry another man but is now divorced. (Tajroo contact claim)

3. By email of 8 May 2015 the Applicant’s newly appointed migration agent sent a copy of an undated personal letter from Tajroo (Personal Letter), with an accredited translation which stated as follows:

   Translation From Scanned Document In Dari

   Personal Letter

   Dear Nooridain, l hope that you are well and healthy, far away from the hardships of the times and it is difficult to be over there far away from the family and the homeland but because of the problems with the family and close relatives which were created due to the friendship between you and me, you had to escape the homeland, I seriously apologize.  From my side, it is full of comfort and goodness and you should not have any worries about me.

   My father and paternal uncle are both searching and chasing after you in order to eliminate you and you must never return to the country from Australia because your life is fully in danger here and your return to the homeland is going to cause your death, you are always inmy mind from far away and I will never forget the memories of friendship and love relationship which exist between us and I will live with your memories.

   May you always stay green and fresh!  (an expression meaning healthy and fit)

   Your friend (Ms Tajroh) Signed

   (emphasis supplied.)

4. Further, in a statutory declaration also affirmed on 8 May 2015 (statutory declaration) which was before the Tribunal, the Applicant declared at [20]:

   20.In addition to those two documents I have also received a letter from Tajroo which also confirms my fear that her family are still searching for my whereabouts [and] will seek to harm me if I ever return to my home country.

5. In the result the Tribunal affirmed the Delegate’s decision not to grant the Applicant a Protection visa on either Refugees Convention grounds or complementary protection grounds.

6. From [2]-[13] of its Decision Record the Tribunal outlined the Applicant’s claims and the evidence provided in support, both at the hearing on 13 May 2015 and as previously submitted in writing. From [14]-[29] the Tribunal considered and discussed the Applicant’s claims.

7. Then at [30]-[41] it set out its conclusions in relation to those claims. In short, at [30] the Tribunal recorded that it had difficulty in accepting that the Applicant was telling the truth about his relationship with Tajroo.

8. At [37] of its Decision Record the Tribunal recorded its conclusion that it did not accept that the Applicant was telling the truth about his alleged relationship with Tajroo. It concluded:

   Having regard to the problems which I have identified with [CQY15]’s evidence I do not accept that he is telling the truth about his relationship with a woman named Tajroo who belongs to a powerful and influential family of military commanders  in his area of Afghanistan.

9. At [38] the Tribunal recorded that at the hearing the Applicant had agreed that he would not have any problems arising from his Tajik ethnicity if he returned to Afghanistan.

10. At [41] the Tribunal therefore concluded with respect to the Refugees Convention criterion as follows:

    For the reasons given above I do not accept that [CQY15] is telling the truth about his relationship with Tajroo.  I do not accept that there is a real chance that he will be killed or otherwise persecuted for one or more of the five Convention reasons as a result of that claimed relationship.  I do not accept that there is a real chance that he will be killed or otherwise persecuted by the Taliban or other anti-government elements for reasons of his race as a Tajik if he returns to Afghanistan now or in the reasonably foreseeable future. Neither he nor his representatives have suggested that he fears being persecuted for any other Convention reason. On the evidence before me I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Afghanistan now or in the reasonably foreseeable future.

    (emphasis added.)

11. Finally at [42] the Tribunal recorded that, having regard to its factual findings, it was not satisfied that there was a real risk that the Applicant would suffer significant harm for the purposes of s.36(2)(aa) and at [45] it accordingly affirmed the decision not to grant the Applicant a Protection visa.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds of the Application filed in this Court on 11 December 2015 are as follows:

   1.The  Tribunal  failed  to  take  proper  account  of  the  letter  from  Tajroo  referred  to at paragraph 36 of its decision by not considering the terms of the letter.

   2.The Tribunal failed to take proper account of by not considering the terms of or, in the alternative, failed to inquire into the existence of the communication from Tajroo alleged in the submission of the Applicant's original representatives dated 13 March 2015, and referred to in paragraph 36 of the Tribunal's decision.

Ground 1

1. Ground 1 refers to the Personal Letter reproduced at [12] above. Mr Oliver Jones of Counsel, who appeared for the Applicant, accepted at the hearing that the Tribunal did read the Personal Letter in the process of coming to its decision.

2. Nevertheless, Mr Jones contended that the Tribunal, not having concluded that the Personal Letter was bogus or not genuine, was bound to give explicit and detailed consideration in its Decision Record to the terms of the Personal Letter but that it had failed to do so.

3. I do not consider that Ground 1 has any substance and I reject it.

4. The substance of the Personal Letter was the statement by Tajroo that her father and paternal uncle were “searching and chasing after” the Applicant in order to eliminate him. This was reiterated in [20] of the statutory declaration extracted at [13] above.

5. The first reference by the Tribunal in its Decision Record to the Personal Letter was at [12] where it recorded that the statutory declaration had stated that the Applicant had received a letter from Tajroo which “confirmed his fear that her family were still searching for him and would seek to harm him if he ever returned to Afghanistan.”

6. Then at [13] of its Decision Record the Tribunal referred to the Personal Letter in these terms:-

   His representatives also produced a scanned copy of the letter from Tajroo to which he had referred (together with a translation) in which she said that her father and paternal uncle were both searching for him in order to eliminate him and that he must never return to Afghanistan because his life would be in danger.

7. At [24] the Decision Record records further discussion between the Tribunal member and the Applicant concerning the Personal Letter.

8. At [25] the Tribunal records that it put to the Applicant that it might have some difficulty in accepting that he was telling the truth about his relationship with Tajroo.

9. Then at [26] of the Decision Record the Tribunal member records the following:-

   I put to [CQY15] that I might give greater weight to the problems I had with his evidence than I did to the documents which he had produced, specifically the letter from the woman [ie. the Personal Letter] and the letters from the district council and the police which he had produced. [CQY15] said that he still believed his evidence was correct.

10. Then at [36] the Tribunal further referred to the Personal Letter relevantly as follows:-

    The third document which [CQY15] produced is a letter purporting to be from Tajroo herself… Given the inconsistences in his evidence I have difficulty in accepting that [CQY15] is telling the truth about how he received these documents. Having regard to the problems which I have identified with these documents I give greater weight to the problems which I have with [CQY15]’s evidence than I do to these documents. I do not consider that they outweigh the problems which I have with his evidence as set out above.

11. In my view these specific references to the Personal Letter in the Tribunal’s Decision Record clearly establish that the Tribunal was meaningfully considering it in coming to its decision. The weight to be given to the Personal Letter was a matter for the Tribunal. It evaluated the Personal Letter against other evidence as it was properly entitled so to do but was not persuaded by the Personal Letter such that its concerns in relation to the whole of the Applicant’s evidence were alleviated: Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 309 [29] per North and Lander JJ. Even a failure by the Tribunal to accord any weight to a piece of evidence does not, without more, give rise to jurisdictional error: SZUTEv Minister for Immigration and Border Protection [2015] FCA 231 at [41] per Gleeson J.

12. Then at [37] the Tribunal recorded its specific rejection of the substance of the Personal Letter when it stated as follows:-

    I do not accept that, as suggested by the documents he has produced, members of Tajroo’s family are looking for him nor that there is a real chance that his life will be in danger as a result of his claimed relationship with Tajroo if he returns to Afghanistan now or in the reasonably foreseeable future.

13. In my view this part of [37] of the Decision Record establishes that the Tribunal engaged in an active intellectual consideration of the Personal Letter and its meaning and weight in the context of the circumstances relating to the Applicant’s claim. This consideration resulted in the Tribunal rejecting the assertion in the Personal Letter that members of Tajroo’s family, namely the father and paternal uncle, were searching and chasing after him in order to eliminate him.

14. Accordingly, Ground 1 fails because the Tribunal did properly take into account the Personal Letter and appropriately and lawfully considered its terms but rejected the assertions therein, as it was lawfully entitled to do.

15. In any event, even if I were wrong in finding that [37] of the Decision Record evidenced specific consideration and rejection of the substance of the Personal Letter, jurisdictional error would still not thereby be established. This is because in my view the substance of the Personal Letter was subsumed in a finding of greater generality, namely the Tribunal’s conclusion that it did not accept that the Applicant was generally telling the truth about his relationship with Tajroo as stated in [37], [38] and [41] of Decision Record and extracted or referred to at [17]-[19] above: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (WAEE) at 604 [47] per French J (as his Honour then was) and Sackville and Hely JJ.

16. Finally and in any event, there is a large body of authority for the proposition that it “is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an Applicant in its written reasons”: WAEE at 604 [46].

Ground 2

1. Ground 2 contends that the Tribunal failed to take into proper account the Tajroo contact claim extracted at [11] above. It was again conceded by Mr Jones that the Tribunal read and was aware of the letter from the Applicant’s migration agent dated 13 March 2015 which contained the Tajroo contact claim but it was submitted that the Tribunal had taken no account whatsoever of the Tajroo contact claim or how it might weigh in favour of the Applicant.

2. In my view Ground 2 is not made out and should be rejected. The Tajroo contact claim merely recorded an assertion by the Applicant, conveyed in his migration agent’s letter of 13 March 2015, to the effect that Tajroo had been forced to marry another man but is now divorced. It could never be regarded as so “fundamental” or so “important” or so “overwhelming” that a failure by the Tribunal in this case to have had regard to it would constitute jurisdictional error: Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 (MZYZA) at [60] per Tracey J. It was not evidence of such significance as to constitute material which, if ignored by the Tribunal, was of such importance that it might have led the Tribunal to a different result: MZYZA at [62]. It was not evidentiary material which was cogent to the assessment of the Applicant’s claims: Minister for Immigration and Citizenship v SZRKT [2013] 212 FCR 99 at 131 [112] per Robertson J.

1. Nevertheless, the Tribunal was clearly aware of the Tajroo contact claim and specifically referred to it in [9], [24] and [36] of its Decision Record.

2. Any very limited significance that the Tajroo contact claim might have had was subsumed under the Tribunal’s finding of greater generality that it simply did not believe the Applicant concerning his claims about his relationship with Tajroo (see [38] above).

3. In any event jurisdictional error is not established by the Tribunal not making any further specific reference or finding about the Tajroo contact claim than as found in [9], [24] and [36] of the Decision Record for the same reason as given in [39] above.

4. Accordingly, Ground 2 also fails.

Conclusion

1. In my view the Applicant has failed to establish that the Tribunal’s decision was affected by jurisdictional error and the Application must be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:         7 July 2017