CYJ16 v Minister for Immigration

[2017] FCCA 1222

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYJ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1222

Catchwords:
MIGRATION LAW – Judicial review – protection visa application – whether the use of the phrase “on balance” indicates the Tribunal wrongly defined “real chance” as a likelihood – application dismissed.

Legislation:

Migration Act 1956 (Cth)

Cases cited:
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
VEAL v Minister for Immigration (2005) 225 CLR 88

Applicant: CYJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 31 of 2016

Judgment of: Judge Young

Hearing date: 2 June 2017

Date of Last Submission: 2 June 2017

Delivered at: Darwin

Delivered on: 2 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Charman

Solicitors for the Applicant: MSP Legal

Counsel for the First Respondent: Mr Liveris

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application filed 23 May 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,600.00.

NOTATION: These orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 31 of 2016

CYJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Tribunal made on 30 June 2014.  The applicant is a Libyan citizen.  He came to Australia in February 2012 as a student guardian for his sister.  In June 2012 he applied for a protection visa.  The delegate’s refusal of his application was affirmed by the Tribunal on 30 June 2014.  On 11 October 2016 the applicant applied to this Court for judicial review of the Tribunal decision.  He is out of time by more than two years.  The applicant concedes that if the application for judicial review does not find favour with this Court then there is not a proper basis to extend time after such a long delay.

3. The grounds of review are set out in an amended application.  The arguments made by his counsel are, in my view, of substance and deserve consideration so I propose to allow the amendment of the application.  There are two grounds.  Ground 1 alleges that the Tribunal misapplied the test for a real chance of persecution set out in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at page 429 where the High Court agreed with a decision of the US Supreme Court that there may be a well-founded fear of persecution, even though there is only a 10 per cent chance that the applicant (referring to the US case) would be shot, tortured or otherwise persecuted.

4. It is clear that a “real chance” of persecution does not require the likelihood or probability of persecution and if that was the Tribunal’s approach it would undoubtedly have applied a wrong test.  The submission of the applicant rested on an interpretation of paragraph 28 of the Tribunal’s decision.  At paragraph 28 the Tribunal said:

   The Tribunal accepts the applicant is a Berber.  He provided consistent claims in that regard.  The country information refers to clashes between Berbers and Arabs in 2012.  There is no more recent information before the Tribunal.  The country information indicates too a resurgence of Berber culture since the change of regime [a reference to the fall of the Gaddafi regime in 2011]. The Tribunal considers, on balance, that available country information does not support the applicant’s claims he would be targeted for harm or discriminated against because he is a Berber.  The Tribunal is therefore not satisfied the applicant has a real chance of serious harm in the reasonably foreseeable future because he is a Berber.

1. The applicant argues that the reference to or the use of the phrase “on balance” is an impermissible definition of “real chance” and indicates that the Tribunal was requiring satisfaction on the balance of probabilities before it could find there was a real chance of persecution.  To assess the submission it is necessary to have regard to the context and the reasons of the Tribunal as a whole: VEAL v the Minister (2005) 225 CLR 88. The Tribunal’s discussion in paragraph 28 was in the context of the discussion of the applicant’s Berber ethnicity and the question of whether or not that Berber ethnicity gave rise to a well-founded fear of persecution or a real chance of persecution.

2. At paragraph 26 the Tribunal discussed the situation of Berbers in Libya and the countervailing information about that situation.  The Tribunal accepted that the Berbers were “suppressed” in the past but then referred to other country information that indicated a “renaissance” of Berber culture since the fall of the Gaddafi regime.  It also referred to evidence of ethnic tension in Libya involving Berbers, including disputes over land, but said there was no recent evidence suggesting targeting of Berbers.

3. In my view, the correct reading of the phrase “on balance” in paragraph 28 is that it expresses that the Tribunal was weighing countervailing country information: some suggesting that Berbers have been suppressed and more recent information suggesting a Berber renaissance. The Tribunal, after weighing that country information, was not satisfied that there was a real chance of harm to the applicant based on his Berber ethnicity.  It was not, in my view, defining “real chance” as requiring likelihood.

4. I do not accept the interpretation that underlies the claim made in ground 1 and I find that ground 1 is not made out.

5. Ground 2 asserts that the Tribunal’s conclusion at paragraph 40 of its reasons was unreasonable. Paragraph 40 relevantly says:

   Relevant to the applicant’s home town as well is the claim that two of his brothers are missing and the claim his father is being harassed.  The applicant’s evidence was the whereabouts of his two brothers was unknown but that his family suspect they are imprisoned in a neighbouring town.  Given the applicant does not know the whereabouts of his brothers, the Tribunal considers there is only a speculative chance and therefore not a real chance the brothers being missing is a reason for the applicant to face serious harm in the reasonably foreseeable future...    

6. The applicant submitted that the finding that the applicant does not know the whereabouts of his brothers and the reasoning that followed that any chance of harm was merely speculative was simply not open on the evidence before the Tribunal and that that conclusion indicated a fundamental error about the nature of the evidence.  It was formulated as legal unreasonableness but if the assertion is correct it appears to me that it might be open to formulate it as, for example, a failure to take into account a relevant consideration or taking into account an irrelevant consideration.

7. The applicant’s argument referred back to an email dated 13 August 2012 which appears at page 65 of the court book.  In that email the applicant writes to, it appears, an official in the Department of Immigration and says as follows:

   I wrote in my application protection visa there is one of my brother’s names, Abdanaseem Malad Abonhara.  He was lost one year ago but now he has been found.  But, unfortunately, he is now arrested in Musrata city by militia, although my brother is not armed. 

1. It is, I think, to be noted that there is no mention of a second brother in that email.  The delegate also dealt with that claim and the delegate noted at page 2 of the delegate’s decision, which was dated 18 March 2013, under the subheading, “Family history” that the applicant has a number of brothers and goes on to say:

   One of them is imprisoned in Mistrata, one brother is missing …

1. It was agreed by both counsel that the reference to “Musrata” or “Mistrata” can be taken as a reference to Misrata and that Misrata can be described as a neighbouring town to the applicant’s home town of Bani Walid.  The applicant submitted that given that information, that is, a definite statement in the email that one brother is in prison in Misrata: a claim noted by the delegate, that the Tribunal’s conclusion that the applicant does not know the whereabouts of his brothers was simply wrong and, as a significant and important piece of information, the Tribunal’s error in that regard constituted a jurisdictional error, whether of unreasonableness or relevant/irrelevant considerations.

2. On the other hand, the respondent submitted that the phrase “the applicant does not know the whereabouts of his brothers” was, in fact, a reasonable and accurate interpretation of the applicant’s evidence.  The respondent referred to a number of passages in the Tribunal’s reasons.  At paragraph 17 the Tribunal records or refers to the applicant’s interview with the delegate and the situation of his family members:

   He told the Tribunal two of his brothers are missing following the attack on his home town in 2011.  His family think the brothers may be held in jail in a neighbouring town but they do not know.  He stated the imprisonment of his brothers is a reason why he too fears he will be harmed if he returns to Libya.

1. It ought to be noted that that records two brothers as being thought to be in jail in a neighbouring town.  At paragraph 24 the Tribunal notes that the applicant has made many claims and those claims have changed through the history of his application for protection.  At subparagraph (c) it is said:

   As noted above, he claimed two of his brothers are possibly imprisoned in a neighbouring town.

2. At paragraph 25 the Tribunal says:

   The Tribunal discussed at length each of those claims with the applicant and the country information he provided as well as country information the Tribunal has access to.

1. At paragraph 40 the phrase characterised as inaccurate by the applicant is part of the following passage:

   The applicant’s evidence was the whereabouts of his two brothers was unknown but that his family suspect they are imprisoned in a neighbouring town.

1. The respondent also pointed out another reference to the applicant’s two brothers in his application for a protection visa dated 13 June 2012 (case book page 19).  That is dated a couple of months before the email referred to above.  In his protection visa application the applicant says this about his brothers:

   My brothers, who their places are still unknown if they are alive… or dead.

1. I am satisfied that the Tribunal’s description of the applicant’s evidence as “changed” is an accurate one.  I am also satisfied, from reading the Tribunal’s decision as a whole, that it is likely have to discussed the matter of the applicant’s brothers with him and, although there is no express reference to the delegate’s note that one brother is in prison and one was missing, I think the applicant’s evidence was no more than the brothers were possibly imprisoned and their whereabouts were unknown.

2. Accordingly, the description that the applicant was at risk of harm because of the situation of the brothers was, in my view, fairly described as “speculative” and the use of that word by the Tribunal was justified.  I will dismiss the application and refuse the application for extension of time.  

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 7 June 2017