CVH18 v Minister for Home Affairs

[2018] FCCA 3298

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVH18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3298

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claims – whether the adverse findings by the Tribunal were open to it – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: CVH18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1520 of 2018

Judgment of: Judge Street

Hearing date: 7 November 2018

Date of Last Submission: 7 November 2018

Delivered at: Sydney

Delivered on: 7 November 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms M Butler
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 7 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1520 of 2018

CVH18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 2 May 2018 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Georgia and his claims were assessed against that country. The applicant arrived in Australia on 26 August 2013, having applied for a subclass FA 600 business stream visitor visa on 7 August 2013 that was granted on 15 August 2013. On 7 October 2013, the applicant applied for the Protection (Class XA) visa   .

3. The applicant claimed to fear harm in circumstances where his mother was of Ossetian origin and his family lived in a particular district until 1990, when they moved to another district. The applicant claimed that he played a support role in the Russo-Georgian war in August 2008. The applicant claimed that in August 2008 his mother was dismissed from employment because of her Ossetian origin. The applicant alleges that in university he was a leader in cultural activities and that in November 2008 he was dismissed from university because he was perceived to be a pro-Ossetian activist.

4. The applicant alleges in January 2009, the applicant was at a New Year celebration in a particular location and the applicant was insulted by a man who blamed him for the death of soldiers. The applicant claimed that the man and his friends attacked the applicant with a knife and beat him. The applicant alleges he was hospitalised for two weeks and when he was released from hospital those responsible threatened him with death if he did not leave a particular area. The applicant alleges the incident was reported to the police but he was advised that the incident was closed.

5. In July 2009, the applicant alleges that he commenced working as a cashier in a transport company. The applicant alleged a new manager derided him about the incident at the particular location. The applicant alleged that his colleagues found about his Ossetian origin and they turned against him. The applicant alleged that from September 2009 until August 2013 the applicant was a Transport trade union official and that police threatened to link him with a well-known criminal and imprison him if he did not stop supporting the drivers.

6. In September 2011 and August 2012 the applicant travelled to Turkey and then returned to Georgia on each occasion. In November 2011, the applicant alleges he was assaulted at a gathering of his university friends for being Ossetian. In May 2013, the applicant alleges his uncle from Ossetia visited the applicant and his family. The applicant alleges he drove his uncle’s car with Russian number plates to the shop and was assaulted and injured and the car was damaged.

7. The applicant alleges in July 2013 he was dismissed from his employment because the director blamed him for a dispute with the drivers who had gone on strike. The applicant claimed he tried to move to North Ossetia, but was unable to get a visa. The applicant claimed he was unable to move to the USA and Canada because the countries are not accessible to Georgians. The applicant claimed he did not want to go to Europe, because Georgians had a bad reputation and image there.

8. The applicant made additional claims at the Tribunal hearing to the effect that after the particular incident, the applicant went to a South Ossetian Minister for assistance and she advised him that the police would not assist him. The applicant made a new claim before the Tribunal that he was attacked in 2011, and that his attackers included persons belonging to the police and secret service. The applicant claimed that as a union leader he was harassed and threatened by police and secret service. The applicant alleged he was asked to spy on union members and provide information on drivers who were not happy with the current government.

9. On 15 September 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

10. The applicant applied for a review on 16 October 2015. By letter dated 24 August 2017, the applicant was invited to and attended a hearing on 13 September 2017. The hearing was adjourned to 25 October 2017 at which the applicant and his representative attended to give evidence and present arguments. By letter dated 19 February 2018, the applicant was invited to attend a further hearing on 15 March 2018, at which the applicant attended to give evidence and present arguments.

11. The Tribunal in its decision identified the relevant law annexed to its decision and summarised the applicant’s claims and evidence. The Tribunal also summarised a number of documents provided by the applicant to the Tribunal and summarised what occurred at the Tribunal hearings at which the applicant attended. The Tribunal noted that one of the documents provided was a summons for the applicant to attend investigation service on 16 February 2017 as a witness in a criminal case.

12. The Tribunal considered the applicant’s claims and took into account two medico-legal reports dated 12 September 2017 and 23 November 2017 in relation to the applicant’s psychological state. The Tribunal found that the applicant did not have difficulty recalling information at the hearings or conveying it in a cohesive manner. The Tribunal did not accept that the applicant’s stress or anxiety explained the omission of important claims in his protection visa application that he belatedly made. Having considered the material, the Tribunal placed little weight on the opinion of the psychologist that the applicant suffers from difficulties with concentration and memory and placed little weight on the psychologist’s opinion as to the applicant’s ability at the time of the Departmental interview.

13. The Tribunal referred to the applicant’s explanation at the time of the interview that he was confused and rejected that explanation for not providing the new information. The Tribunal did not accept that the applicant failed to provide the information because he was scared or because of psychological issues or because he was under the influence of medication. The Tribunal found the applicant was not a witness of truth. The Tribunal rejected the applicant’s explanation in relation to his psychological problems and held they were an attempt to overcome the inconsistencies and omissions in his evidence and claims. The Tribunal was not satisfied that the applicant’s medical condition or admissions were for the reasons claimed. The Tribunal did not accept the applicant was a witness of truth. The Tribunal summarised thereafter eight detailed reasons in respect of inconsistencies and conflicts in the applicant’s evidence on issues that cannot be said to be insignificant or trivial.

14. In relation to the applicant’s claim to fear harm because of the events that occurred to him in 2009 and 2011, the Tribunal referred to the applicant travelling to Malta in January 2012 and returning to Georgia, and then travelling to Turkey in June 2012 and returning to Georgia, and that he again went to Turkey in August 2012 and returned to Georgia. The Tribunal was satisfied that returning to Georgia after twice being physically harmed, on one occasion being hospitalised and the other being threatened that he would be implicated with a known criminal, indicates a lack of subjective fear of persecution.

15. The Tribunal referred to an alleged incident in respect of the applicant being attacked while borrowing his uncle’s car, which he stated in his protection visa application that the car had Russian number plates. The Tribunal referred to the applicant changing his evidence at the first Tribunal hearing that he was driving a car with South Ossetian number plates. The applicant was unable to satisfactorily to explain the inconsistency in his evidence when it was put to him by the Tribunal. The Tribunal identified a further inconsistency in the applicant’s evidence at the second hearing before the Tribunal in which the applicant referred to the car being his cousin’s. The Tribunal found the applicant’s explanation that the words “uncle” and “cousin” to be interchangeable to be an invention to attempt to overcome inconsistent evidence.

16. The Tribunal raised with the applicant the difficulty of a vehicle with South Ossetian plates entering the territory controlled by the government of Georgia and rejected the applicant’s claim that he entered the territory with South Ossetian number plates. The Tribunal found the applicant created this claim in relation to the vehicle and the number plates and did not accept that he drove the car to a shop and then was beaten and harmed. The Tribunal was not satisfied the applicant was attacked when driving in a particular location and was not satisfied the applicant was in fear until he left Georgia for Australia because of the claimed incident.

17. The Tribunal referred to the belated claims raised by the applicant in relation to a politician advising him regarding the lack of police protection, which had not been raised earlier. The Tribunal did not accept the applicant’s explanation as to why it was not raised at the interview and found the applicant provided no reason for omitting this claim. The Tribunal was not satisfied of the applicant’s explanation for the omission of his claims from his protection visa application.

18. The Tribunal referred to the failure by the applicant to raise his claim that he was a pro-Ossetian university activist and an active DROA member in the protection visa application. The Tribunal did not accept the applicant’s explanation for the omission and rejected the claim that he was or would be perceived to be half Ossetian or a pro-Ossetian activist/leader of DROA at university, who organised gatherings and cultural events at university, and has been persecuted for his ethnicity since 2009.

19. The Tribunal did not accept the applicant was dismissed from his job because the director blamed him for a dispute involving striking drivers. The Tribunal also did not accept the applicant was threatened by police due to his activities as a union official organising strikes, and took into account the absence of independent evidence in that regard. The Tribunal found there was no independent evidence to suggest that everyone was against Ossetians in Georgia, or Ossetian unionists or half-Ossetians or perceived or half-Ossetian unionists.

20. The Tribunal referred to the applicant’s claims that he was harassed and threatened by police as a union leader. The Tribunal raised with the applicant the failure to make these claims in his protection visa application. The Tribunal did not accept the explanation advanced for the omission by the applicant and rejected all of the applicant’s claims that the police and security services had harassed or threatened or harmed him.

21. The Tribunal referred to the applicant’s claim that he was assaulted by police and secret service, rendering him unconscious at a DROA function in 2011. The Tribunal noted this claim had not been made in the protection visa application and that the Tribunal had rejected the applicants previous explanations for omissions. The Tribunal did not accept the applicant was harmed at a DROA function before leaving for Malta or being rendered unconscious by police/secret service.

22. The Tribunal referred to photos that had been provided by the applicant and placed no weight on the same. The Tribunal found there was nothing on the face of the photos to suggest the person pointed to by the applicant was a policeman or secret service.

23. The Tribunal referred to the applicant’s claim in 2014 when the union tried to organise another strike and that he received an invitation to go to the police. The Tribunal did not accept that union officials, according to independent evidence, are harassed or harmed for their activities as union leaders and strike organisers. The Tribunal did not accept the police came in 2014 after the applicant left Georgia, or that there is information in the Georgian Transport Department that he helped to organise strikes.

24. The Tribunal did not accept the applicant was a witness of truth. The Tribunal did not accept the applicant’s father had a heart attack because of the applicant’s activities, or that his mother was dismissed from her employment in August 2008, or that the applicant was dismissed from university, or that he was insulted, beaten and hospitalised in January 2009. The Tribunal found the police had not failed to investigate the applicant’s assault. The Tribunal did not accept that the incident occurred and did not accept that his work manager derided him about the incident. The Tribunal did not accept that when the applicant was asked what his mother’s surname was his fellow workers turned against him.

25. The Tribunal gave the applicant the benefit of the doubt as to his mother being Ossetian in ethnicity. The Tribunal rejected the applicant’s claim that Ossetians or half-Ossetians or those perceived as Ossetians or half-Ossetians suffer discrimination in Georgia. The Tribunal did not accept the applicant was harmed in Georgia for his ethnicity, as a member of the DROA, or as a university student who was a trade union official.

26. Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied the applicant had or was perceived to have an adverse political or ethnic profile in Georgia prior to departing for Australia. The Tribunal was satisfied the applicant left Georgia as the holder of a visitor visa to Australia and that he did not flee Georgia fleeing harm for a Convention related reason.

27. The Tribunal did not accept the applicant will suffer harm in Georgia on his return. The Tribunal did not accept that the applicant will be accused and beaten by Georgians on any occasion if something goes wrong or that he will be punished in any circumstance because he is half Ossetian, or that he will have to hide because of his ethnicity.

28. The Tribunal referred to country information in relation to the judiciary and the legal system in Georgia, including the executive branch and the conduct of cases. The Tribunal noted that there are mechanisms in place in Georgia when police do not take action when a criminal act has been committed. The Tribunal referred to the process available in relation to making a complaint. The Tribunal found there was no independent evidence to suggest those of mixed Ossetian Georgian ethnicity or union members or representatives are refused assistance by the police. The Tribunal raised with the applicant that it could not locate any evidence that part Ossetian-Georgians are harmed for their ethnicity.

29. The Tribunal also referred to having considered a summons for the applicant to attend an investigation service on a date that had clearly passed by the time of the writing of the Tribunal’s decision as a witness on a criminal case. The Tribunal referred, having taken into account country information and the Tribunal was not satisfied that the applicant would suffer any harm for attending at an investigation as a witness in a criminal case on his return to Georgia. The Tribunal found no independent evidence that Ossetians or half‑Ossetians or those perceived as half-Ossetians suffer harm for attending as a witness in a criminal case. The Tribunal was of the view that the situation would have become known to independent sources including the US State Department Reports and others.

30. The Tribunal found that the applicant had experience and qualifications and is a resourceful person, and was satisfied the applicant would be able to obtain work on his return to Georgia. The Tribunal was not satisfied there is a real chance or real risk the applicant will suffer persecution or significant harm were he to obtain employment as a trade union official or any other capacity with his university qualifications.

31. The Tribunal was not satisfied there is a real chance the applicant would suffer Convention related harm in the reasonably foreseeable future in Georgia. The Tribunal found that it was not satisfied there is a real risk in the reasonably foreseeable future the applicant would be subjected to violence or significant physical harassment or ill-treatment, or have his life or liberty threatened, or be denied access to basic services or the capacity to earn a livelihood, or suffer economic hardship that would threaten his capacity to subsist in Georgia.

32. Having considered the applicant’s circumstances, the Tribunal did not accept there is a real chance the applicant will suffer significant harm, or that there are reasonable grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Georgia, there is a real risk the applicant will suffer significant harm under s 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 31 May 2018. On 25 June 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. When the matter was called on 5 November 2018, it was apparent that the Georgian interpreter by telephone was unable, through lack of experience, to understand terms being used by the Court and the matter was adjourned to today and the Court commenced with the hearing.

3. The Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table the applicant took issue with the adverse findings by the Tribunal, and the failure by the Tribunal to place weight on the documents that the applicant had provided. The applicant maintained that it would be hard if returned to Georgia and disagreed with the country information that the Tribunal had taken into account. The Tribunal’s reasons reflect a thorough consideration of the applicant’s claims in the making of dispositive findings in relation to credit that were open to the Tribunal, for the reasons given by the Tribunal. The adverse credit findings by the Tribunal cannot be said to lack in evident and intelligible justification. It was a matter for the Tribunal what country information the Tribunal accepted.

5. The applicant’s disagreement with the country information does not identify any relevant legal error by the Tribunal. The applicant did not identify any relevant material that the Tribunal failed to take into account. The applicant’s submissions from the bar table were, in substance, an invitation to this Court to engage in impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error.

1. The Court raised with the solicitor for the first respondent the Tribunal’s reasons in relation to the summons that had been provided. It is not apparent that there was any express claim or submission made in support of the summons that was provided to the Tribunal. It is apparent that the summons required an attendance at a time when the applicant was clearly in Australia and that at the time of the hearing before the Tribunal the time for attendance had passed. The Tribunal’s reasons are not to be read with a keen eye for error. On the face of the material before the Court, the summons was one that appeared to require the applicant to attend as a witness on a criminal case and the Tribunal made dispositive findings. The Tribunal did not accept that the applicant would suffer harm by reason of having been summonsed as a witness in a criminal case.

2. The Court raised with the applicant the summons and invited the applicant to explain what his fear was in relation to the summons and the applicant claimed that the summons had been misunderstood and that it was actually a criminal case against him. There is no support for that proposition and it was not identified in the material put before the Tribunal. The Court accepts the first respondent’s submission that the Tribunal has made dispositive findings that were open to it in relation to the summons in respect of the applicant being a potential witness in a criminal case.

The grounds

1. The grounds in the application are as follows:

   1. Department Immigration did not take in account that I was discriminate not only as ethnic background, but political as well.

   2. AAT did not give full attention to previous point because it was not mentioned in Department’s decision.  

Ground 1

1. In relation to ground 1, insofar as that is a reference to the decision of the delegate, this Court has no jurisdiction in respect of the delegate’s decision. So far as the Tribunal is concerned, it is apparent that the Tribunal did take into account the applicant’s claims to fear harm by reason of his ethnicity and by reason of alleged discrimination in that regard, as well as his political views, but rejected the same. The Tribunal did not accept the applicant was insulted, beaten and hospitalised for his ethnicity or his political opinion, or that the applicant had or was perceived to have an adverse political or ethnic profile, as summarised above. Those adverse findings were open to the Tribunal for the reasons given by the Tribunal. No jurisdictional error is made up by ground 1.

Ground 2

1. In relation to ground 2, the applicant complained that the Tribunal had failed to give proper attention to his claims in evidence. The Tribunal’s reasons as summarised above reflect a real and genuine engagement with the applicant’s claims and evidence and the making of dispositive findings that were open to the Tribunal. No jurisdictional error is made out by ground 2.

2. As the application fails to disclose any jurisdictional error and as nothing said by the applicant identifies any jurisdictional error, it is appropriate that the application be dismissed. Accordingly, the application is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 5 September 2019