Czo16 v Minister for Immigration

[2019] FCCA 1575

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZO16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1575

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether Tribunal misapprehended or failed to address claims.   

Cases cited:

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125

Applicant: CZO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2788 of 2016

Judgment of: Judge Barnes

Hearing date: 30 May 2019

Delivered at: Sydney

Delivered on: 30 May 2019

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2788 of 2016

CZO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 22 September 2016.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of Fiji, applied for a protection visa in February 2015.  In her protection visa application she claimed that her husband had been accused of corrupt practices, taken by the military and police for “unreasonable accusation” against him at his workplace, laid off from his job and abused by the regime. 

3. The Applicant claimed that she totally supported her husband as innocent and that her life was also in danger.  She also claimed that as a wife who supported her husband she had been subjected to various verbal threats and physical abuse by the military and police and that as a family member she feared such harm in the future. 

4. The Applicant provided the Department with a copy of a letter dated 10 February 2014 from a local council in Fiji terminating her husband's employment on the basis that he had, in effect, stolen money as an employee. 

5. The Applicant also provided a statutory declaration from her husband addressing the family’s financial circumstances and a letter from the church she attended in Australia which stated that she was a valuable asset to the church and the community. 

6. In September 2015 a delegate of the Minister refused the application.  The delegate recorded that the Applicant had explained at the interview that her husband had been accused of taking money, that she advised him to be honest and confess to it all, that he was fired, and that there had been court proceedings in which he had been ordered to pay the money back. 

7. She claimed her husband had been verbally abused by the military after the incident, but that there had been no other attacks on her family or herself.  She stated that she had applied for a protection visa to continue supporting the family.  She did not know which visa to apply for, so she had relied on the advice of friends and others. 

8. After the delegate refused the application, the Applicant sought review by the Tribunal.  She was invited to and attended a Tribunal hearing. 

9. In its reasons of 22 September 2016 the Tribunal summarised the Applicant's original claims in her protection visa, her subsequent clarification at the departmental interview and her evidence at the Tribunal hearing.  It recorded that the Applicant had confirmed to it that the accusations made against her husband were true and that when asked whether her original claims were true the Applicant had said that when her husband was accused of stealing money the military or police had escorted him home from his workplace, but that he had not been detained.  She told the Tribunal that although her husband experienced some verbal abuse during this encounter, he had no further encounters with the police or military. 

10. The Tribunal recorded that it had also asked the Applicant to elaborate on her claims that her life was in danger and that she would be subject to threats, verbal and physical abuse by the military and police for supporting her husband.  It recorded her evidence that when her husband pleaded guilty people had started talking about them and commenting on the good life she must be leading in Australia, that former workmates and members of the church looked down upon them, that they lost standing in the community and felt degraded and that their children had been forced to change schools.  She had also explained that the family’s situation had improved.  The new school was near his village. 

11. The Applicant was also recorded as telling the Tribunal she wanted to work in Australia to pay off her mortgage. 

12. In relation to problems with the husband's church, the Applicant told the Tribunal that she feared people from her husband's former workplace and the community were angry about what he had done.  She claimed she was afraid of people in her community, that people were hanging around and that stones had been thrown at their roof.  She speculated that this may be because people were jealous she was in Australia.  Her husband had heard people yelling that he should pay back what he had taken.  She claimed she could not face this kind of atmosphere.

13. When the Tribunal suggested that they could relocate within Fiji, for example to near the husband's village where people were looking after her family, she responded that she could do that but she had to stay in Australia to pay off the mortgage and wanted her children to be able to attend college or university and then she would go back. 

14. In its findings and reasons the Tribunal took into account the character reference that had been provided by the Applicant's church.  It accepted that she had provided generally truthful evidence regarding her personal circumstances and her family situation at the Tribunal hearing.  However, it found the claims in the visa application form were exaggerated. 

15. The Tribunal did not accept that unreasonable accusations were made against the Applicant's husband at his workplace or that he was taken by the military and police on any occasion, apart from being removed from his workplace after being accused of stealing.  The Tribunal accepted that the husband’s employment had been terminated after he was accused of stealing money he had received in the course of his work, that the accusations were true and that following a court process he had been ordered to repay the money. 

16. While the Tribunal was prepared to accept that the Applicant’s husband had been removed from his workplace by military or police officers and that he may have experienced some verbal abuse in that context, it found that he was not detained or otherwise mistreated by the authorities and that he had no further encounters with the military or police after being removed from his workplace. 

17. The Tribunal accepted that as a consequence of his actions the Applicant’s husband had been forced to relinquish his role as a lay minister in his church and that his actions had been poorly regarded by people in the church, the community and former workmates, that the family's standing or reputation had been diminished, that the family had experienced some low-level harassment, including verbal assaults and stones being thrown on the roof, and that the family's finances had suffered as a consequence of the husband's unemployment. 

18. In these circumstances the Tribunal accepted that the Applicant was genuinely unwilling to return to Fiji.  However, it was not satisfied that this was owing to a well-founded fear of persecution.  Nor was it satisfied there was a real risk the Applicant would suffer significant harm if she was removed to Fiji.  It was prepared to accept that if the Applicant were to return to Fiji there was a real chance or risk she would suffer some low-level harassment from community members consistent with the family's recent experiences, such as verbal insults, people talking in a derogatory way or stones being thrown at the roof.  However, it did not accept there was a real chance or risk that the Applicant's life was in danger or that she would be subjected to threats or verbal or physical abuse by the military or police force. 

19. The Tribunal accepted the that Applicant's economic position would be less favourable, although it noted that while her evidence was that her husband had not actively sought formal employment since his employment was terminated, he had received some income from providing brush-cutting services.  It also had regard to the Applicant's evidence that she had been able to earn an income in Australia by providing cleaning services.  The Tribunal was not satisfied that she could not do the same in Fiji.  In these circumstances the Tribunal was not satisfied that any deterioration in the family finances as a consequence of the Applicant’s return to Fiji would threaten her capacity to subsist or result in significant economic hardship. 

20. The Tribunal was not satisfied there was a real chance the Applicant would suffer serious harm of the kind contemplated by the legislation or that the difficulties she would face in Fiji amounted to significant harm for the purposes of the complementary protection criterion.  In particular, it was not satisfied there was a real risk she would experience any pain or suffering that was severe, cruel or inhuman or that she would be the subject of treatment intended to cause extreme humiliation. 

21. The Tribunal found that its findings were supported by the Applicant's apparent willingness to return home to Fiji once she had paid her mortgage and the children had completed their education.  It found that she did not meet the criteria for a protection visa and affirmed the decision under review. 

22. The Applicant sought review of the decision by application filed on 12 October 2016.  There was a page missing in the original application and an amended application containing the missing page was filed on 19 October 2016.  The Applicant indicated in that application that she did not require an interpreter, but a Fijian interpreter was provided and the Applicant told the court that she was content with that interpreter. 

23. The first ground in the application is that the Tribunal “misapprehended the claims”.  It is not particularised.  I asked the Applicant what she meant by this ground and what claims had been misapprehended or misunderstood.  Her response was that she had not provided much evidence or documents and so the Tribunal did not understand the grounds on which she applied.  She explained that her claim concerned her husband's situation in Fiji and what happened to him.  She conceded that she had not provided much evidence to the Tribunal. 

24. It is for an applicant to put his or her case before the Tribunal.  The Tribunal cannot be said to have fallen into jurisdictional error in not considering claims not made and evidence not provided by an applicant.  There is nothing in the material before the court to suggest that the Applicant sought, and was not afforded, an opportunity to provide further evidence. 

25. As the First Respondent submitted, the Tribunal considered the claims made by the Applicant.  It understood the difference between her initial claims and her claims as subsequently explained to the delegate and at the Tribunal hearing. 

26. The Tribunal accepted that the Applicant’s evidence to it was generally truthful, but it found that the initial claims made in the visa application form were exaggerated.  It proceeded to consider the claims as presented at the Tribunal hearing.  In that context it had observed that the Applicant had told it that the accusations against her husband were true and that while he had experienced some verbal abuse when removed from his workplace by the military or the police after he was fired, she also stated that he had no further encounters with the police or the military.  When asked about her visa application claim that her life was in danger and she would be subjected to threats, verbal and physical abuse by the military and police for supporting her husband, the Applicant had explained to the Tribunal that her concern was that people had started talking about them and that her family had lost standing in the church and the community and that they felt degraded and the children had changed schools. 

27. The Tribunal considered the Applicant’s claims as clarified to it.  There is nothing in the material before the court or in what the Applicant said today to suggest that the Tribunal misapprehended or misunderstood and hence failed to address any integer of the Applicant's claims. 

28. Ground 1 can be seen in conjunction with ground 3 which contends that the Tribunal failed to address the Applicant's particular social of “persons opposed to the military government resident in Australia” and her religion.

29. There are two aspects to this ground.  The first aspect of this ground involves a contention the Applicant claimed to fear harm as a person who is opposed to the military government in Fiji and is resident in Australia.  The second asserts that she claimed to fear harm on the basis of her religion.  However, apart from what was claimed in the protection visa application form (which, based on the Applicant's oral evidence, the Tribunal found was exaggerated), the delegate's reasons and the Tribunal's summary of the interview or the Tribunal hearing do not suggest that the Applicant made any claims on the basis of being opposed to the military government and/or being resident in Australia. 

30. Instead, the Tribunal's reasons record that the Applicant told it that she suspected she had applied for the wrong type of visa, that the accusations against her husband were in fact true, that her husband had no further encounters with the police or military after he was removed from his workplace, that she wanted her children to be able to attend college or university and that then she would return to Fiji. 

31. I asked the Applicant when and where she made a claim to fear harm as a person opposed to the military government in Fiji who was resident in Australia.  She suggested she had made such a claim to the Tribunal.  There is no transcript of the Tribunal hearing in evidence, despite the opportunities the Applicant was given in February 2017 and December 2017 to file such a transcript.  The Tribunal's account of what occurred at the hearing does not support any claim that the Applicant either made such an express claim or that such a claim arose clearly or squarely on the material before the Tribunal in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89. In this context, it is relevant to have regard to the way the Applicant’s claims were presented over time. The Tribunal considered what the Applicant told it at the Tribunal about what she feared. In light of that clarification it considered, but did not accept, the original claim that there was a real chance or risk that her life was in danger or that she would be subjected to threats or verbal or physical abuse by the military or police force.

32. Moreover, the Tribunal considered, as set out above, the Applicant's claims about the consequences of her husband's actions for the family.  It accepted that there was a real chance or real risk the Applicant would suffer some low-level harassment, consistent with the family's recent experiences.  It also accepted that her economic position would be less favourable.  However it was not satisfied that this amounted to serious harm for the purposes of the Refugees Convention criterion or significant harm as defined in the Act for the purposes of the complementary protection criterion.  It has not been established that the Tribunal failed to consider an integer of the Applicant’s claims.

33. Furthermore, insofar as it is claimed in ground 3 that the Applicant claimed to fear harm on the basis of her religion, there is no evidence that she made any claim to fear harm on this basis.  No such claim arose clearly on the materials before the Tribunal.  When asked about this claim, the Applicant pointed to her membership of the Uniting Church in Australia.  However there is nothing in the letter from the Uniting Church or otherwise in the material before the court to suggest or give rise to any claim of a fear of harm to the Applicant on return to Fiji based on her religious activities in Australia. 

34. Insofar as the Applicant intended to refer to her husband's church position in Fiji, his loss of his lay leadership role in the church community and the attitude of members of the church community to the family, the Tribunal considered such claims.  As indicated, it accepted that the husband had been forced to relinquish his role and that the family had experienced some low-level harassment, but was not satisfied that this constituted serious or significant harm for the purposes of the Act.  Grounds 1 and 3 are not made out. 

35. Ground 2 is a generally expressed claim that the Tribunal failed to address “all the elements of complementary protection”.  It has not been established that the Tribunal fell into jurisdictional error in its consideration of the complementary protection criterion.  It is the case that in this context the Tribunal focused on whether there was a real risk that the Applicant would face significant harm.  However it correctly set out the complementary protection criterion.  It considered this criterion in light of findings it had made in relation to the Refugees Convention criterion.  It was prepared to accept that there was a real risk the Applicant would suffer some low-level harassment, which it described, and that her economic position would be less favourable, but was not satisfied that the difficulties she would face would amount to significant harm as defined in the Act. 

36. It was open to the Tribunal to make findings in relation to complementary protection that were informed by its previous findings of fact (provided they were not tied to Refugees Convention concepts) in the sense considered in SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125. It has not been established that the Tribunal erred in addressing the complementary protection criterion. Ground 2 is not made out.

37. The Applicant claimed in oral submissions that she needed more time to apply for another visa to stay in Australia because of her difficulties at home.  As I indicated to her, the court has no discretion to grant a visa on humanitarian grounds.  These concerns are not matters that establish jurisdictional error on the part of the Tribunal. 

38. As no jurisdictional error has been established, the application must be dismissed.

39. The Applicant has been unsuccessful.  It is appropriate that she meet the Minister's costs.  The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.  

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Barnes.

Date:     12 June 2019