CZE16 v Minister for Immigration

[2017] FCCA 1251

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZE16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1251

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – bare allegation of error – disagreement with merits – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: CZE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2778 of 2016

Judgment of: Judge Street

Hearing date: 9 June 2017

Date of Last Submission: 9 June 2017

Delivered at: Sydney

Delivered on: 9 June 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2778 of 2016

CZE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 6 September 2016, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Fiji, and her claims were assessed against that country. The applicant, in substance, claimed to fear harm from her husband and by reason of an article published in connection with her husband. The applicant has visited Australia on four occasions: first in 2003, then 2011, then 2013, and then 2014.

3. The applicant initially completed a Form D on an application for protection as a member of a family unit in respect of her former husband’s claim. Because of a breakdown in the relationship and allegations of family violence, the applicant maintained that her claim should then be dealt with separately, which is what occurred before the Tribunal.

4. The delegate, on 8 October 2014, found the applicant failed to meet the criteria under the Act and found that the applicant was not a person in respect of whom Australia had protection obligations and rejected the application for a visa.

The Tribunal’s decision

1. The application for review was lodged on 27 October 2014. The Tribunal invited the applicant to appear at a hearing on 8 February 2016. The applicant appeared on that date to give evidence and present arguments and was represented by her migration agent. The applicant was invited to attend a further hearing on 20 July 2016, which again the applicant attended to give evidence and present arguments and was assisted by her migration agent.

Claims regarding the former husband

1. At the time of the Tribunal hearing, the applicant had been separated from her former husband for about a year. The applicant identified that she came to Australia in 2003 to visit her father, from whom she had long been estranged. The applicant came to Australia for about two months. The next visit, in 2011, was also for about two months, and, in 2013, she came for the first time with her former husband, for a holiday for two months. The applicant then returned to Australia on 18 December 2013 and has not since left.

2. The Tribunal identified the applicant’s claim to fear of harm from her husband, on the basis of a history of domestic violence and that she was fearful of the military because of what they did to her former husband in the past, and she was fearful because of the publication of an article since she came to Australia, which referred to her having fled the military in Fiji. The applicant confirmed that these were the claims that she made and reiterated that, if she goes back to Fiji, she is afraid her former husband will chase her wherever she goes in Fiji.

3. The Tribunal accepted that the applicant had been separated from her former husband in circumstances in which she was in fear of her safety and obtained an AVO, but the Tribunal found that the applicant had now left the relationship and accepted that the applicant has a reasonable fear for her safety from him in Australia, as evidenced by the AVO currently in place. The Tribunal found that there was no reason to believe that the applicant will not remain separated from her husband upon returning to Fiji in the future.

4. The Tribunal was not satisfied there is a real chance, in the sense of more than one that is remote, that the applicant will face serious harm from her former husband were she to return to Fiji in the reasonably foreseeable future. The Tribunal found that, even accepting that the former husband were to return to Fiji, the Tribunal was not satisfied that there is more than a remote chance that he would track her down to her home area and threaten, intimidate, physically harm or otherwise cause her serious harm.

5. The Tribunal considered whether if the former husband did return to Fiji the availability of the requisite level of protection. The Tribunal concluded that the level of state protection was such that it was not satisfied that the applicant was unable or unwilling to avail herself of the protection of her country in the event she faces harm from the former husband.

6. The Tribunal also considered but rejected the applicant’s claim that she is more at risk from her former husband because of her decision to support her daughter in her complaint against her former husband. The Tribunal was not satisfied that there is a real chance that the applicant will face serious harm because of reconciliation with her former husband or continuation of the domestic abuse. The Tribunal was not satisfied that the applicant faces a real chance of persecution as a result of her fear of harm from her former husband.

Involvement with the Western Deaf Ministry

1. The Tribunal referred to the applicant’s claims concerning the Western Deaf Ministry. The Tribunal identified concern as to the applicant’s credibility in relation to her involvement with the ministry. The Tribunal noted that the applicant fears no harm on the basis of that involvement and found it was unnecessary to make a determinative finding as to whether she was involved in the Western Deaf Ministry. The Tribunal was not satisfied, on the material before it, that the applicant faces a real chance of serious harm from the military because of her involvement with the Western Deaf Ministry.

Article featuring the applicant

1. In relation to the article published about the applicant, the Tribunal found there is no basis to support that the article has been seen by anyone in Fiji or that it would cause the military any offence. Having considered the applicant’s claims singularly and cumulatively, the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has a protection obligation under the Refugees Convention. The Tribunal found the applicant did not meet the criteria under s.36(2)(a) of the Act.

Complementary protection

1. The Tribunal was not satisfied there are substantial grounds to believe that there is a real risk the applicant will suffer significant harm from her former husband if she returns to Fiji. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. The Tribunal accordingly affirmed the decision of the delegate.

Certificates

1. The Tribunal was provided with two certificates under s.438. The first certificate, dated 28 June 2016, on its face was a valid certificate in respect of information provided by a third party. On the face of the Tribunal’s reasons, the Tribunal raised with the applicant in the course of a hearing the information provided by the third party, and the applicant had an opportunity to respond to that information. The Tribunal’s reasons in relation to its adverse findings do not in any way pick up or refer to the information the subject of the certificate dated 28 June 2016. I am satisfied that the applicant suffered no practical injustice in relation to the failure to disclose the existence of the certificate dated 28 June 2016.

2. The second certificate was one which was not properly dated but identified material that was in no way relevant to their determination of the applicant’s claims and was not referred to by the Tribunal. I am satisfied that the applicant suffered no practical injustice by reason of the failure to disclose the existence of the certificate that was undated.

Proceedings before this Court

1. On 9 February 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. The applicant filed an affidavit annexing a copy of the transcript of the second hearing but not the first. No other documents were filed by the applicant.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by a relevant legal error. The Court explained that the relevant legal error either had to be an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied that the Tribunal’s decision was unlawful or unfair, the applicant’s application would be dismissed.

3. The Court explained it would have identified the evidence, and then hear submissions from the applicant, and then hear submissions from counsel for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing, as explained by the Court.

4. From the bar table, the applicant sought to tender material that was not before the Tribunal. That material was objected to by the first respondent. The material was rejected on the basis that it was not before the Tribunal and went to the merits of the applicant’s application. From the bar table, the applicant sought to repeat her claims and took the Court through the Court book in relation to matters which the applicant said supported her claims.

5. The applicant asserted that the Tribunal had not properly considered the information. In that regard, the applicant made reference to the Western Deaf Ministry information, which it is apparent the Tribunal considered in its reasons. There is no basis to conclude that the Tribunal did not take into account the material provided by the applicant and which is identified in the Court book.

6. The applicant referred to an issue of a racial kind, in respect of threats to indigenous Fijians. No claim was advanced before the Tribunal that the applicant had any racial fear and no such claim arose on the material before the Tribunal. Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal. The applicant addressed the Court on the subjective merits of her case and repeated her desire to stay in Australia, where she was, she believed, safe.

7. The Court explained to the applicant on four occasions that the Court could not revisit the merits and had no power to make fresh findings of fact. The applicant identified the reasons for her claims and took issue with the adverse findings by the Tribunal. The adverse findings by the Tribunal were the subject of rational and logical reasons, and, taking into account the applicant’s migration history, there is no basis to say that the adverse findings were unreasonable, irrational, or illogical. The adverse findings were open on the material before the Tribunal.

Grounds of the application

1. The grounds in the application are as follows.

   1. Incorrect assessment by Member of the Administrative Appeals Tribunal

   2. Error of law and fact

Consideration of grounds

Ground 1

1. The bare allegation in Ground 1 that the assessment was incorrect is a disagreement with the adverse findings by the Tribunal. For reasons already given, those adverse findings were open. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. Ground 2 is a bare assertion of error of law and fact. No error of fact has been demonstrated by the applicant in the course of her submissions, and no error of law has been identified in the reasons of the Tribunal.

2. On the face of the material before the Court, the Tribunal correctly identified the relevant law and complied with its statutory obligations. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness. Nothing said by the applicant or in the application identifies any jurisdictional error.

Conclusion

1. The application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 July 2017