CXQ18 v Minister for Home Affairs
[2019] FCCA 2220
•16 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CXQ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2220 |
| Catchwords: MIGRATION – Protection (Class XA) visa – decision of the Administrative Appeals Tribunal – whether Tribunal failed to consider a claim – whether Tribunal misunderstood applicant’s claims – whether Tribunal’s delay in providing decision meant that it could not properly undertake statutory task – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 Craig v State of South Australia (1995) 184 CLR 163 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 |
| Applicant: | CXQ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 312 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 25 July 2019 |
| Date of Last Submission: | 25 July 2019 |
| Delivered at: | Perth |
| Delivered on: | 16 August 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms M Jackson |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 312 of 2018
| CXQ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings is a citizen of Colombia.
On 16 August 2007, the applicant arrived in Australia as the holder of a student (subclass 573) visa. On 4 April 2013, the applicant’s application for a Skilled Graduate (subclass 485) visa was refused. That decision was later affirmed by the Migration Review Tribunal on 16 June 2014 (Court Book (“CB”) 7 and 97).
On 11 July 2014, the applicant applied for a Protection (Class XA) visa (the “protection visa”) (CB 6-18). The applicant’s family, being his wife and two children, also applied as members of the applicant’s “family unit”. They made no claims for protection in their own right (CB 34-54).
In his application for protection, the applicant claimed that “serious acts of violence have occurred against [him], and constant threats against [him] and [his] family have made because [he] was working like a human rights activist in the association ‘Asociacion Social Comunidad y Vida’” (CB 10). He claimed to fear harm from paramilitary forces and the government.
Following an interview with a delegate on 19 November 2014, the applicant provided a statement in English and Spanish (CB 88-91) which reiterated his claims in relation to his fear of harm as a human rights defender. His claims in full are discussed below.
On 9 February 2015, a delegate of the Minister refused to grant a protection visa to the applicant and his family (CB 96-106).
On 7 March 2015, a review application was lodged by the applicant and his family with the Administrative Appeals Tribunal (the “Tribunal”) (CB 108-110).
On 16 November 2016, the applicant appeared before the Tribunal to give evidence and present arguments (CB 136). It appears his family did not attend or give evidence but are nonetheless named in the Tribunal’s decision.
On 8 May 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant and his family the protection visa they were seeking (CB 155-176).
By application filed in this Court on 5 June 2018, the applicant now seeks judicial review of the Tribunal’s decision. The applicant’s wife and two children are not named in the judicial review application before this Court.
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
On 31 May 2019 this matter was listed for hearing. The applicant did not attend. The matter was called three times outside but there was no appearance by the applicant. The application was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
On 6 June 2019, the Court made orders by consent setting aside the orders dated 31 May 2019. The hearing then proceeded on a final basis, something both parties agreed to so as to avoid further delay.
The Court had before it the application for judicial review dated 5 June 2018, a comprehensive Court Book numbering 280 substantive pages (and marked as Exhibit 1), a supplementary Court Book filed 10 May 2019 numbering 54 pages (and marked as Exhibit 2), the Minister’s submissions filed 10 May 2019 and an affidavit of Melinda Anne Jackson affirmed 10 May 2019.
The Tribunal’s Decision
The Tribunal’s decision is lengthy. It is 22 pages long and spans 122 paragraphs.
At [6]-[9], the Tribunal summarised the applicant’s migration history and his claims for protection. Relevantly, the Tribunal explained:
6.The Tribunal has before it the Department’s file CLF2014/97636 and the Tribunal’s file relating to the applicants’ protection visa application. The Tribunal also has had regard to the material referred to in the delegate’s decision, as well as other material available to it from a range of sources.
7.Information in his application for protection indicates the applicant is a Colombian national who was born in Pereira, Risaralda, on 21 June 1976. He and the second named applicant met in 2001.
8.On 16 August 2007, the applicant arrived in Australia as the holder of a student (TU573) visa, which was valid until 30 August 2007. The applicant then successfully applied for subsequent Subclass 573 visas, the last of which ceased on 30 August 2012. On 27 August 2012, the applicant applied for a Skilled (provisional) VC485 visa and this was refused on 3 April 2013. The applicant sought merits review of the visa refusal decision to the then Migration Review Tribunal and that Tribunal (differently constituted) affirmed the decision of the delegate on 16 June 2014.As noted above, the applicant made an application for the visa that is the subject of this review on 11 July 2014.
9.The following is a summary of the claims and information provided by the applicant in his protection visa application:
⁃ The applicant claims to have in 2000 joined the “Asociacion Social Cominidad y Vida”, a non-government organisation (NGO) set up to promote and defend the human rights of Colombians. He claims he actively participated in a research project carried out by the organisation, called “Never Again”. This project involved collecting and denouncing the crimes committed by armed actors in Colombia – in particular, the 5th Army brigade of Colombia in Santanderes, Southern Bolivar and South Cesar. In retaliation, he claims members of the organisation were systematically persecuted and marked as enemies of the Colombian state. He claims he and other members were regarded as “urban guerrillas” and falsely accused of being involved in criminal acts in an attempt to delegitimize their human rights activities.
⁃ He claims that in early 2002, his family started receiving death threats – especially his younger brother. He claims his brother made the decision to travel to Canada in March 2002, and was recognised as a refugee in July 2002. The applicant claims he went to Venezuela and remained there for five months. He claims that he returned to Colombia in August 2002, and when he did he was stopped at the border and told by the Departamento Administrativo de Seguridad (DAS) he had a legal case pending against him. The applicant claims this accusation was false because he has never been arrested or judged in Colombia. He claims the DAS agents had very accurate information about his human rights activities, and he was illegally detained for 48 hours. After that, he was taken by members of the Colombian Army – he was blindfolded and had a “ping pong” ball put into mouth which was then taped; and he was then put into the trunk of a car and driven for a long period. He claims he was then interrogated about his activities with the NGO and tortured. He claims he was repeatedly told that it was the end of his life and that pieces of his body would be sent to his mother. He claims he was held for 8 days and then released with the words “You’re too young to get into such serious problems that are not yours. You will be released, but you will be monitored and if you get stuck into these activities against the Army, you will be killed”.
⁃ He claims that on one night in April 2003, he was driving home from university with a friend when he was stopped by men in a truck who pointed guns at him and yelled “these are the sapos we need to shut down”. He claims that he was able to evade these men, because a car accident occurred next to them which resulted in the gun- wielding men quickly fleeing the scene. The police attended and the applicant told them he wanted to make a complaint. However, because he was unable to identify the men or provide registration details of the truck, the police refused to take his complaint.
⁃ The applicant claims that on 21 June 2007, four strangers violently entered the place he was hiding. He claims he managed to escape by jumping over a wall. He claims that the intruders stole his computer, a USB drive and all the evidence he had in his possession against the Colombian authorities. He claims that this was a warning to him that his life was in danger and that “these murderers were not willing to forgive my actions as a human rights activist”. He claims that he attempted to make a complaint to the police, but they would not assist him because he could not provide any details of the intruders.
⁃ The applicant claims that after the intrusion he decided to leave Colombia and commenced the visa process to come to Australia to study. He claims he hid in the homes of different relatives while he went through the visa process. He also claims he started working as a Sales Analyst for a large Colombian newspaper – El Tiempo. The applicant claims that when he started working at the newspaper, the telephone threats to him increased. He was warned that if he spoke out, his family members would be killed.
⁃ The applicant claims he left Colombia on 14 August 2007. The second and third named applicants joined him in Australia in November 2007.
⁃ The applicant claims that the second named applicant returned to Colombia in September 2009 and remained there for one month. He claims that the second named applicant received threatening calls while she was there and he believes that serving government paramilitary groups have him listed as a target to be killed.
⁃ In July 2010, the second named applicant again returned to Colombia to try and find a place to live. She remained there for about 20 months, and gave birth to the fourth named applicant during this time. The applicant claims the second named applicant stayed in different places – Barranquilla, Medellin, Cucuta, Cali – but everywhere she went she continued to receive threatening phone calls.
⁃ The applicant claims that when it appeared it was impossible for him and his family to return to Colombia and live safely, he made the decision to apply for permanent residency in Australia on the basis of his skills. However, when his application for a subclass 485 visa was refused, he had no other alternative but to apply for a protection visa, the subject of this application.
At [10] and [11], the Tribunal summarised the delegate’s decision, noting that the delegate found that, pursuant to s.36(3) of the Act, the applicant was not owed protection as he had not taken all possible steps to avail himself of the right to enter and reside in any Mercosur country. The Tribunal held:
10.In a decision record, the delegate sets out his finding and reasons for refusing to grant the applicants protection visas. In summary, the delegate made relevant findings on the applicants’ statutory effective protection. In particular, the delegate found that the applicants as citizens of Columbia have access to effective state protection in a third country – namely, in other countries across Latin America - by operation of the treaty of Mercosur/Mercosul, the Agreement between the European Union and the Federative Republic of Brazil on short stay visa waiver for holders of ordinary passports and the Union of South American Nations. The delegate went on to find that the applicants have a present right to enter any Mercosur members states in Latin America, including the countries neighbouring Columbia, using either their Columbian passports or a valid ID card; and are entitled to reside in these countries for a period of time which in most cases may exceed three months without conditions; and is entitled to receive temporary residence after arrival with a view to gaining permanent residence providing they meet certain reasonable conditions.
At [12]-[61], the Tribunal comprehensively referred to the evidence the applicant had provided at the hearing in respect of his claims. This included the applicant’s recounting of events and matters that the Tribunal put to him, or raised concern with, and which had been discussed with the applicant.
At [62], the Tribunal noted that the applicant had provided various materials after the Tribunal hearing. This material included a bundle of articles concerning human rights in Colombia and how targets are eliminated on a daily basis. The applicant submitted that these articles show that there are no safe areas in Colombia. He also submitted that the articles talk about a new group named the Black Falcons, which is a death squad recruited to eliminate a list of targets.
At [63], the Tribunal noted the lengthy delay in providing its reasons. The applicant was interviewed on 9 November 2016. The decision was not made until 8 May 2018. The Tribunal confirmed that it had written to all four applicants inviting them to provide updated information and had listened to the audio recording of the hearing. Nothing further was received from the applicants.
At [64]-[79], the Tribunal summarised the principles applicable to protection visas.
At [80], the Tribunal identified that the issue before it was whether the claims the applicant had made for protection satisfy the criteria to be granted a protection visa.
Having accepted that the applicant was a Colombian national, at [85] the Tribunal noted a key issue was whether the applicant had a right to enter and reside in other Mercosur member countries, and other countries in the European Union.
While the Tribunal considered this issue could be dispositive, it instead focussed on issues relevant to the applicant’s credibility insofar as these issues relate to ss.36(2)(a) and (aa) of the Act.
The Court notes the Minister’s submissions at [15]-[23] in relation to the balance of the Tribunal’s decision. That summary, which was not disputed, is accurate and the Court adopts it as its own. It provides, relevantly, as follows.
The Tribunal stated that it was its assessment that the applicant lacked overall credibility as a witness. The Tribunal stated that it had significant doubt that paramilitary groups, the Colombian government or anyone else held an intention to seriously harm the applicant should he return to Colombia. The Tribunal did not accept that the applicant’s claims regarding his involvement with a human rights group were credible (CB 170 at [91]).
The Tribunal found aspects of the applicant’s sworn evidence to be vague and lacking the detail it expected it would have, in all the circumstances, of such matters and that at times the applicant was evasive in his response to the Tribunal’s questions (CB 170-171 at [92]).
The Tribunal found the applicant’s description of the alleged threats against him and his family to be lacking in detail and unpersuasive. The Tribunal stated that the lack of detail indicated that the applicant’s fears of Colombian authorities, paramilitary groups or anyone else were not genuinely held. The Tribunal stated that it had taken into account the stresses that applicants can experience in a Tribunal hearing environment, but it still found that the applicant’s evidence was vague and undetailed in many respects and that it detracted significantly from his overall credibility (CB 171 at [93]-[94]).
The Tribunal noted that the applicant had applied for student visas as well as a work visa to prolong his stay since he arrived in Australia. The Tribunal stated that in those circumstances, the applicant’s delay in applying for a protection visa casted doubt over his credibility and his protection claims generally (CB 172 at [98]).
The Tribunal considered that there was a striking lack of reliable evidence that demonstrated the applicant’s activities with the Non-Government Organisation (“NGO”) and that corroborated his claims (CB 172 at [99]).
As the Tribunal rejected the applicant’s claims that he was actively involved in a human rights group and that he did not leave Colombia for Venezuela in early 2002 to avoid harm from any paramilitary groups, the Tribunal rejected his claim that he was detained for about a week and interrogated and tortured when he attempted to re-enter Colombia in July 2002 (CB 173 at [106]).
The Tribunal found that the applicant was able to avoid the attention of the Colombian authorities for about 4 years and was allowed to depart Colombia using his own passport and without any difficulty because he was not a person of interest to them now or in the reasonably foreseeable future (CB 174 at [110]-[112]).
The Tribunal concluded that, based on the applicant’s claims in his written statement, his oral evidence before the Tribunal and his documentary evidence, it was not satisfied that the applicant and his family faced a real chance of serious harm for reasons of the applicant’s claimed involvement in the NGO. Therefore, the applicants did not meet the criteria in s.36(2)(a) of the Act (CB 175 at [115]-[116]).
In relation to the consideration of the complementary protection criterion, the Tribunal found that there were not substantial grounds for concluding that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there was a real risk that they would suffer significant harm. Therefore, the applicants did not meet the criteria in s.36(2)(aa) of the Act (CB 175-176 at [120]).
Judicial Review Application
The applicant’s judicial review application contains four grounds of review, as follows:
1. The decision made by Administrative Appeals Tribunal, is base on the fact that my problem is with The Colombian Paramilitary groups. This is incorrect. My claim for refugee is base on the persecution that the Colombian Army started on me.
2. Mercosor it is not a warranty of open doors for us. Specially if you are a government target. This is not analysed in the decision.
3. Part of my concern about my claim is my family. Existing risk about the rights of my kids are no taken in the analysis. It is a high probability that at one stage the kids and I have to separate as consequence of the returning.
4. Misinformation and assumptions are present through the decision. Statements could be misinterpreted.
The applicant’s grounds of review lack particularisation. Ground 4 is very much a bald assertion without substance.
In the past, a failure to particularise was seen to provide a basis for each of the grounds to be dismissed: AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J.
More recently, however, this Court has adhered to the principles outlined by Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8].
Noting that the applicant here was not legally represented and this case relates to protections claims, the Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions, they most commonly include the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 ( “Craig “) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider the entirety of an applicant’s claims (or “integers “ of the claims) as made: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that it cannot engage in “merits review” of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The applicant indicated to the Court that he understood the information that had been outlined to him.
Against this backdrop, the Court asked the applicant, through the interpreter, to explain what he believes the Tribunal “did wrong”.
The applicant did his best to provide the Court with oral submissions. His family were in attendance and, with the consent of the Minister, his wife made a short submission on behalf of the applicant. They were assisted by a Spanish interpreter. The Court thanks the interpreter for her assistance.
Unfortunately, despite their best efforts, the applicant and his wife were not able to provide any information that assisted them in terms of the issues before this Court. It was simply stressed that the applicant and his family were “in danger” if they returned to Colombia and were concerned that the Tribunal did not fully understand the situation the family would face in Columbia.
Regrettably, most of the matters raised took issue with the merits of the Tribunal’s decision. As explained above, these are matters the Court cannot consider here.
To the extent that the applicant’s submissions suggest that the Tribunal misunderstood his claims, or otherwise pertain to jurisdictional error generally, the Court will consider these submissions below.
Ground 1
1. The decision made by Administrative Appeals Tribunal, is base on the fact that my problem is with The Colombian Paramilitary groups. This is incorrect. My claim for refugee is base on the persecution that the Colombian Army started on me.
Although not entirely clear, it appears the applicant is alleging that the Tribunal misunderstood his protection claims and therefore failed to adequately consider them.
The Tribunal rejected the applicant’s claim that he worked for a human rights organisation. This claim underpinned all of the applicant’s other claims. The Tribunal noted (CB 171 at [93]) that it did not believe the applicant’s claims to fear harm from “Colombian authorities, paramilitary groups or anyone else” to be genuinely held (CB 171 at [93] and [95]).
Reading the Tribunal decision as a whole, the Court is not satisfied the Tribunal misunderstood the applicant’s claims. Specifically:
a)the Tribunal rejected the basis for the alleged fear as non-genuine and found that the applicant did not hold a genuine fear for his life at the hands of Colombian authorities, paramilitary groups, or anyone else, if he returns to Colombia;
b)the Tribunal was not satisfied the applicant was of interest to the Colombian authorities now, or in the reasonably foreseeable future; and
c)the Tribunal did not accept that the applicant has ever been harmed or targeted by the Colombian authorities or has ever been of adverse interest to them.
In this context, the Tribunal’s findings at [103] are particularly telling, wherein the Tribunal states:
103.Having regard to all of the evidence, and given its significant concerns about the applicant’s credibility, the Tribunal does not accept the applicant’s claim that he and his younger brother were actively involved with human rights group - Association of Community and Life, between 1998 or 2000 and up until the beginning of 2002, when threats to their lives began and they both left Colombia, or at all thereafter. It follows that the Tribunal does not accept that the applicant helped Colombian citizens living in rural areas; nor gathered information about the human rights abuses carried out by Colombian army brigades against these people; nor was involved in denouncing the human rights abuses in a South American research project called “Never Again” or by formally lodging complaints against the armed forces with the Colombian government. The Tribunal does not accept that the applicant’s younger brother has been recognised as a refugee in Canada, because of his involvement in a human rights group, or for any other reason. The Tribunal also accordingly rejects claims that the applicant was subsequently threatened or mistreated in any way for reasons of his involvement in the activities of a human rights group. The Tribunal finds the applicant’s underlying claim is his membership of, and human rights activism with, a NGO. It is upon this that his claims of subsequent mistreatment, and claimed future mistreatment, rest.
In the Court’s view, these findings, are sufficient to address the applicant’s concern that the Tribunal misunderstood his fears generally – including any fears he had about the conduct of the Colombian army. Any concerns in this regard are clearly captured by the Tribunal’s reference to “the Colombian authorities, paramilitary groups or anyone else” and the Tribunal’s reference throughout its decision to the applicant’s claims (at [9]) and his evidence generally in this regard (in particular, at [31] and [50]).
Ground 1 has failed to identify any jurisdictional error.
Ground 2
2. Mercosor it is not a warranty of open doors for us. Specially if you are a government target. This is not analysed in the decision.
In relation to ground 2, the Court notes the Minister’s submissions at [27], as follows:
27.In relation to the treaty of Mercosur and the applicant’s right to enter and reside in other treaty member countries, the Tribunal stated at [85] of its decision that this key issue was discussed at the Tribunal hearing. However, the Tribunal ultimately found that the serious credibility issues with the applicant meant that it did not need to consider third country protection pursuant to s 36(3) of the Act (see [86]). As this was not a dispositive issue before the Tribunal, this ground cannot succeed.
The Court agrees.
In effect, this ground is misconceived. The applicant has (quite understandably, given that he was not legally assisted) misunderstood the Tribunal’s decision. Alternatively, he is taking issue with the delegate’s findings.
To the extent that the applicant is taking issue with the delegate’s findings, the Court cannot assist as it has no jurisdiction in relation to the delegate’s findings: s.476(4) of the Act.
In relation to the Tribunal’s decision, it is correct that the Tribunal did not analyse the Treaty of Mercosur and the effect of that Treaty on the applicant and his right to reside in another country.
However, the Court notes what is stated at [84]–[86] (CB 169) of the Tribunal’s decision, as follows:
84.Under s.36(3), the Tribunal can consider that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, in a country apart from Australia, including countries of which the non-citizen is not a citizen.
85.As discussed at the hearing, a key issue in this case may arise from the applicant’s apparent right to enter and reside in other countries which have an agreement with the Federative Republic of Colombia, including other Mercosur member countries as well as countries across the European Union.
86.The Tribunal considered restricting those issues dispositive to s.36(3). However, the Tribunal has otherwise decided to examine those issues dispositive to the applicant’s credibility in so far as they are relevant to the Refugees Convention and to s.36(2)(aa).
Here, the Tribunal determined that it would not restrict its consideration to s.36(3) of the Act (for which an analysis of the Mercosur Treaty would be required). Rather, it chose to consider the protection claims proper.
There is nothing inappropriate in this regard. Having determined, on the evidence before it, that there were significant credibility findings in relation to that evidence, the Tribunal was not required to analyse the Mercosur Treaty (as ground 2 suggests). The Tribunal was satisfied that the applicant did not meet the criterion for the grant of the protection visa under s.36(2)(a) and (aa). The Tribunal made a separate and independent finding to refuse the grant of the protection visa and did not need to analyse the Mercosor Treaty and its applicability to the applicant’s circumstances.
Lest it be suggested otherwise, noting the extensive credibility concerns the Tribunal had in regard to the applicant’s evidence and noting that that the Tribunal had regard to country information on the situation in Colombia, the Court is satisfied that it was open to the Tribunal to reject the applicant’s claims that he was at risk or chance of harm. While this Court might have concluded differently, that is not the test relevant to proceedings before this Court.
Further, it is noted that, at [85], the Tribunal referred to the issue of s.36(3) being discussed at the hearing. Noting that this was the dispositive issue before the delegate the Court has also considered whether the applicant was placed on notice that his claims proper might not be accepted: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.
Having examined the Tribunal’s forensic analysis of the applicant’s evidence at the hearing, the Court is satisfied that the applicant was on notice that his credibility (CB 163 and 166 at [42] and [60]) and his claims proper were an issue for the Tribunal (CB 164-165 at [48] and [52]). Further, the applicant provided a bundle of articles relevant to his protection claims after the hearing for the Tribunal to consider. To the Court this indicates that the applicant was aware that the acceptance and corroboration of his claims was an issue.
For the reasons outlined above, the Court finds that Ground 2 raises no jurisdictional error on the face of the Tribunal’s decision.
Ground 3
3. Part of my concern about my claim is my family. Existing risk about the rights of my kids are no taken in the analysis. It is a high probability that at one stage the kids and I have to separate as consequence of the returning.
Although it is not entirely clear, it appears that the applicant here is concerned that his family will be separated from him if he returns to Colombia and that they will be at risk as a result of this separation. It appears further that the applicant is concerned that the Tribunal did not address this risk of harm to his family.
The Court notes the Minister’s submissions at [28]-[30], as follows:
28.The applicant and his family were included on the initial application, but no claims for protection were raised on their behalf. The family members also did not give evidence at the Tribunal hearing. Therefore, the Tribunal was only required to assess the applicant’s claims for protection which were expressly made, and any claims which were squarely raised on the material: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61].
29.The applicant never made any express claim to the Department or the Tribunal that he would be separated from his children upon return to Colombia. Nor was there any material before the Tribunal to suggest that the applicant and his children would be forced to reside separately, such as his family members having different nationalities: cf Minister for Immigration and Citizenship v SZQOT [2012] FCAFC 141 and MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620.
30.The applicant did not advance the prospect of separation from his family as a claim for protection, and therefore the Tribunal was not required to consider it. Rather, the Tribunal assessed the applicant’s family members claims as secondary applicants, and as it found the applicant’s claims to be not credible, it found that the family unit did not face a real chance of persecution (see [115]-[116]).
The Court notes that in the protection visa application, the following references to the applicant’s family were made:
Yes I have had experiences of abuse, at different times I have been the victim of verbal bullying, physical assault and other times threats against my family, and most rogue, threats against my daughters
…
I have fear of having to hide, taking my family from one side to another without giving them a stability
I'm afraid to put my family at risk again and have to have to live in fear.
It is noted that at [55] the Tribunal states:
The applicant told the Tribunal that the second named applicant has returned to Colombia on two occasions – in September 2009, for one month and then in June 2010. The first time she returned to have a test to see whether she would be a compatible kidney donor for her father. The second time was because she was pregnant with their second child and she thought the care would be easier in Colombia. He said once the child was born, she tried to settle in different places, but it was not possible. She has always been very determined to return to live in Colombia. However, she was by herself and could not make enough money to live to a decent standard. He said there were also safety concerns.
(Emphasis added)
This analysis must be read in context. Relevantly, as summarised by the Tribunal, the applicant’s claims provide as follows:
…
⁃ The applicant claims that the second named applicant returned to Colombia in September 2009 and remained there for one month. He claims that the second named applicant received threatening calls while she was there and he believes that serving government paramilitary groups have him listed as a target to be killed.
⁃ In July 2010, the second named applicant again returned to Colombia to try and find a place to live. She remained there for about 20 months, and gave birth to the fourth named applicant during this time. The applicant claims the second named applicant stayed in different places – Barranquilla, Medellin, Cucuta, Cali – but everywhere she went she continued to receive threatening phone calls.
It is apparent from the applicant’s claims that an issue was raised with respect to the safety of his family. However, the factual premise upon which the claim of harm in this context was based (ie, threatening phone calls etc) was specifically rejected by the Tribunal (CB 171 at [91]-[93]).
In these circumstances, the Court is satisfied that it was unnecessary for the Tribunal to consider any claim in relation to his family’s safety as any risk of harm to them fell away once it was determined that the applicant’s own claims as to his actions and fears lacked credibility: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593. In effect, their risk of harm was tied to his political activism. Once it was determined that his evidence in relation to his risk of harm in that regard was lacking in credibility, any harm to his family ceased to exist and did not need to be assessed. On the evidence, if he did not face a risk of harm, neither did they as any harm to them was dependent on a finding that he had engaged in activism of the sort claimed.
To the extent that the applicant asserts that he raised a specific claim of harm as a result of family separation, the Court does not accept that this claim was ever raised. The Court accepts the Minister’s submissions that the applicant never made any claim that he would be separated from his children and/or wife upon return to Colombia.
On the materials before the Tribunal there was nothing before it from which it could be inferred that the applicant and his family would be required to reside separately or would face harm in any event. It cannot be said, in those circumstances, that the Tribunal failed to address any claims as advanced by the applicant or his family.
No jurisdictional error arises in relation to ground 3 has insufficient merit.
Ground 4
4. Misinformation and assumptions are present through the decision. Statements could be misinterpreted.
It is difficult to determine what the applicant is alleging in this ground without clear particulars. Unfortunately, the applicant did not clarify his concerns in relation to ground 4 at hearing.
Before this Court, the applicant seemed to suggest that the misinformation and misinterpretation he refers to related to his inability to articulate with clarity what he was trying to say when giving evidence to the Tribunal. He submitted, in effect, that he is not a lawyer, he did not know how to express what he was saying and it was difficult for him to explain things with clarity. As a result, it was suggested, the Tribunal “misunderstood” his evidence.
The Court is sympathetic to the concerns raised by the applicant. The difficulties he experienced are not dissimilar to issues faced by other non-English speaking applicants attempting to represent themselves in an at times complex legal setting.
Unfortunately, there is little the Court can do to assist the applicant in this regard. The Court notes that the applicant was assisted by a Spanish interpreter at the Tribunal hearing. Further, the applicant provided evidence in support of his claims for over three hours (CB 136-139). Without a transcript of the Tribunal hearing, the Court cannot identify what may or may not have been “misunderstood” by the Tribunal. Further, the applicant has only spoken of difficulty he had explaining himself, as opposed to any particular instance where the Tribunal had not correctly identified what he was trying to convey.
Importantly, the Tribunal’s lengthy analysis and its detailed discussion of the applicant’s evidence suggests that it put matters to the applicant and asked him to explain things as best he could (CB 160-161 at [29] and [34]).
The Court is satisfied that the applicant had every opportunity to convey his claims and evidence. Indeed, the Tribunal appears to have gone to considerable effort to ensure that it understood what the applicant was stating.
While not raised by the applicant, the Court does note that there was a significant delay in the Tribunal’s delivery of reasons. In some contexts, this can prove problematic, particularly where the ultimate finding relies almost exclusively on credibility findings.
Here, the Tribunal’s credibility findings are detailed and note inconsistencies, implausibilities and previous dishonesty. The Tribunal does not rely on demeanour in the assessment of the applicant’s evidence. There is one reference to the applicant being “guarded” when giving evidence about the applicant’s wife returning to Colombia; however, this one reference to demeanour also refers to the evidence provided being “inconsistent” (CB 171 at [96]).
Here, the credibility findings are not solely or significantly based on demeanour. While there is a lengthy delay here between hearing and delivery of the decision, the Court notes that the Tribunal did specifically listen to the audio recording of the transcript and gave the applicants a further opportunity to provide submissions prior to the decision being delivered.
Overall, the Court does not infer that the procedures followed here by the Tribunal were procedurally unfair or that the Tribunal’s capacity to make a proper assessment of the applicant’s sincerity and reliability was affected: NAIS v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 288 CLR 470 at [10]; SZKJV v Minister for Immigration & Citizenship [2011] FCA 80 at [33].
Overall, for the reasons outlined above, it cannot be said that ground 4 discloses jurisdictional error.
Certificate issue
The Minister alerted the Court to the existence of a certificate issued under s.438(1)(b) of the Act.
The Minister conceded that neither the certificate nor the underlying material were disclosed to the applicant and, in line with the High Court’s decision in Minister for Immigration & Border Protection v SZMTA [2019] HCA 3 (“SZMTA”) at [2], the Tribunal had an obligation to disclose to the applicant the fact the certificate had been issued.
The Minister noted, however, the remarks in SZTMA at [2], as follows:
Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby deprive the applicant of the possibility of a successful outcome.
The Court is satisfied that in the present case there is no breach of procedural fairness arising to the level of jurisdictional error.
The affidavit of Melinda Anne Jackson affirmed 10 May 2019 annexed a copy of the certificate and the documents or “folios” that the certificate referred to.
The Court agrees with the Minister that none of the documents the subject of the certificate, nor the certificate itself, are material to the review in question.
The information the subject of the certificate was a confirmation of the applicant’s identity and information as to whether he had applied or migrated to another country. The materials here are not adverse to the case advanced. They are merely procedural in nature.
The Court accepts that this is a case where the certificate, and the documents the subject of it, were not considered material by the Tribunal. Given the context of the materials in question, that assessment was entirely open to it. Here, the failure to disclose the certificate and the documents relevant to it did not give rise to any practical injustice so as to amount to jurisdictional error.
Conclusion
It is clear that the applicant is quite concerned about the life that he and his family will face if they return to Colombia. On any assessment, life there will be more difficult than the life the family has had in Australia since their arrival here in 2007. While the Court is sympathetic to the concerns raised, the Court cannot assist the applicant or his family. Unfortunately, the applicant has failed to identify any jurisdictional error in his application, or otherwise.
The application for judicial review must, accordingly, be dismissed.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 16 August 2019
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