Dar16 v Minister for Immigration

[2018] FCCA 3365

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAR16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3365

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a protection visa – Administrative Appeals Tribunal affirms decision of Delegate of Minister for Immigration not to grant – applicant claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – no basis to claims of jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

SZTJQ v Minister for Immigration and Citizenship (2008) 172 FCR 563

Applicant: DAR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2823 of 2016

Judgment of: Judge Dowdy

Hearing date: 14 November 2018

Delivered at: Sydney

Delivered on: 14 November 2018

REPRESENTATION

The Applicant appeared in person via telephone.

Counsel for the First Respondent: Ms A. Zinn

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 14 October 2016 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,400.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 17 December 2018 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2823 of 2016

DAR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant is a female citizen of Georgia aged 55 years, having been born on 13 July 1963. 

2. By Application filed in this Court on 14 October 2016, she seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 21 September 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 16 January 2015 refusing to grant to her a Protection (Class XA) (Subclass 866) visa (Protection visa). 

Background

1. The Applicant arrived in Australia on a Temporary Work (Short Stay Specialist) (Class GA) (Subclass 400) visa (Working visa) ceasing on 20 April 2014 and applied for the Protection visa on 24 April 2014. 

Relevant statutory Criteria for the Grant of a Protection Visa

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5]  The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Applicants Claims for Protection

1. Her claims for protection were set out in a Statutory Declaration dated 3 April 2014 (Statutory Declaration).  In summary, she claimed that she experienced difficulties and feared harm in Georgia on the basis of her Ossetian ethnicity. Her father was of Ossetian ethnicity, although her mother was of Georgian ethnicity. More particularly, she claimed to have been born in Gomi village in Khashuri in Georgia on 13 July 1963.  She claimed to be of ethnic Ossetian background and of Christian Orthodox religion.

2. She grew up in Gomi village in Khashuri and lived there until she met her husband in 1987, when they were married in 1988. Her father was of Ossetian ethnicity and worked for a company in Gomi that manufactured vodka. He was a driver and fireman until he retired when he was 60 years of age. In 1992, he died under suspicious circumstances, and his body was found in a river in Gomi. She has two living brothers, named Gioz and Zurab, who are both married.

3. She is a widow and has two children, one daughter named Leanna and one son named Goderdzi. Both of her children are married and live in Khashuri. Her husband was killed when he travelled to Russia in 2004, and she was told by the morgue in Russia that he had been thrown from a great height and died from the fall. She had completed five years of primary school and five years of secondary school education in Gomi village, and after she had left school she went to university for three years and studied pre-school teaching.

4. She returned to Gomi village then and started to work as a pre-school teacher, and worked there until 2002. On a general level, she had experienced problems in Georgia because of her Ossetian ethnicity for much of her life. After the dissolution of the Soviet Union, life became harder for Ossetians in Georgia because of the racism and discrimination against Ossetians by the Georgian people. She declared: “As Ossetians, we were reminded all the time that they had no place in Georgia, and people would warn us to go to Ossetia if bad things were not going to happen to them.”

5. Ossetians were made to feel socially isolated and life was very difficult.  Personally for her, persecution began in 1988 to 1989 when the political situation became bad for Ossetians in Georgia and in 1989 became worse when she was harassed daily in her workplace because of her Ossetian ethnicity. The Applicant gave examples of how she was harassed by insulting remarks and discriminatory behaviour so as to isolate her and to single her out. She was threatened by colleagues that they would push her out of work by mistreating her.

6. After her husband had died, her mother supported her and sent her food from the village. She was unemployed, and it was common knowledge that she could not get a job because no one would hire her due to her Ossetian ethnicity. She suffered harassment from the general community.  In 2013, her son was framed for drug involvement by the police which caused her a lot of problems, and she believed that this was because he was perceived as Ossetian. After she realised she could not be safe in Georgia, she got a passport so that she could escape from Georgia.

7. She managed to escape Georgia legally on 8 March 2014 and arrived in Australia at Melbourne Airport on 9 March 2014. She fears targeted harm, in addition to cruel, inhuman and degrading treatment from those members of the community who do not believe that Ossetians belong in Georgia if she were to return to Georgia. She claimed to fear that she may be arbitrarily deprived of her life and she had no one to protect her. 

8. Ultimately, she claimed to fear serious harm and persecution because of her Ossetian ethnicity and membership of a particular social group as a returnee should she be forcibly returned to Georgia, and she claimed to fear significant harm under the complementary protection criterion.

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 1 December 2014.

2. The Delegate in her Decision Record considered the body of evidence comprised in the Statutory Declaration, as given at the interview with the Delegate, and various translated and untranslated documents which had been submitted by the Applicant. However, the Delegate was not able to find any country information with a tendency to indicate that Ossetians were persecuted in Georgia, or that state protection was not available for Georgian citizens.

3. Further, the Delegate regarded it as significant that the Applicant had been able to live safely in Georgia for 10 years after the death of her husband and that she had not received any recent direct threats or claimed any incidences of harm. 

4. In the result, the Delegate was not satisfied that the Applicant satisfied the Refugees’ Convention criterion or the complementary protection criterion and refused to grant a Protection visa to her. 

Tribunal Decision

1. The Applicant lodged an application for merits review with the Tribunal on 3 February 2015 and appeared before the Tribunal on 14 September 2016 to give evidence and present arguments, together with her migration agent. The evidence establishes that the Tribunal hearing extended over a period of one hour and 53 minutes. At [7] of its Decision Record, the Tribunal noted that the Applicant claimed that she spoke, read and wrote Georgian, a little Russian and a bit of the French language.

2. At [8] of its Decision Record, the Tribunal identified documentary material submitted by the Applicant. At [9], it set out the Applicant’s claims as made in the Statutory Declaration and from [10] – [29] recorded the Applicant’s claims and questioning by the Tribunal in relation those claims. At [12], it noted that after the Applicant’s husband died in 2004 she had continued to remain in Georgia until 2014. At [18], the Tribunal recorded that the Applicant agreed that there were numerous mixed marriages in Georgia between various ethnic groups.

3. At [28] of its Decision Record, the Tribunal recorded its discussion with the Applicant that there was no independent evidence to suggest that persons from mixed marriages between Ossetians and Georgians suffered any harm, as claimed by her, but noted that the Applicant did not agree with this. At [28], the Tribunal also recorded that it put to the Applicant that she had not produced any independent evidence that there were several instances of hate speech against LGBTI minorities. At [29], the Tribunal recorded that the Applicant’s migration agent confirmed that he had no independent evidence to place before the Tribunal to support the Applicant’s claims in relation to the problems with mixed marriages in Georgia.

4. At [31] of its Decision Record, the Tribunal noted the Applicant’s claims that she is Ossetian because her father was an ethnic Ossetian and her mother a Georgian and that she speaks Georgian but not Ossetian.

5. From paragraphs [30] – [54], the Tribunal recorded its findings and at [32] – [36] and [42], [47], [48] and [50] it considered independent country information relevant to Georgia. 

6. Ultimately, at [44] of its Decision Record the Tribunal noted that it had considered the Applicant’s evidence singularly and cumulatively, but was not satisfied that the Applicant was perceived to have an adverse profile as an ethnic Ossetian in Georgia prior to departing for Australia, and further, was not satisfied that she had fled Georgia fearing harm, but came to Australia as the holder of a Working visa. 

7. At [46] of its Decision Record the Tribunal recorded its finding that it was not satisfied that the Applicant had any adverse racial or ethnic profile in Georgia, or was at risk of serious harm of Georgia if she returned. At [52], the Tribunal recorded that it rejected all of the Applicant’s claims, and accordingly, the Tribunal affirmed the decision of the Delegate not to grant a Protection visa to the Applicant. 

Grounds of Attack on Tribunal Decision in this Court

1. The following Grounds appear in the Application filed in this Court:

   1. The decision-maker member made a rash decision and did not take time out to look properly into my case.

   2. The decision-maker made a jurisdictional error by not considering my claims and taking into consideration all relevant documents.

   3. The member of Division who made the last refusal decision on my case had not had appropriate information about newest history of Georgia.

Consideration

Ground 1

1. In my view, this Ground fails to establish jurisdictional error. The Tribunal hearing extended over a period of nearly two hours. The Applicant has not tendered a transcript of the Tribunal hearing, although she had accepted responsibility to do so by consent order 3 of the Court of 4 November 2016, and so there is no transcript to establish that the Tribunal did not give sufficient time to hearing her case and claims and to provide an opportunity to her to make meaningful submissions. Her migration agent was present with her at the Tribunal hearing and there is no evidence of complaint at any time by that migration agent of the conduct of the Tribunal hearing.

2. Further, the Decision Record of the Tribunal does not support any suggestion that the decision of the Tribunal was made in an irrational or in a legally unreasonable way but rather evidences that the Tribunal properly carried out its inquisitorial function by questioning the Applicant in relation to her claims and permitting the Applicant to answer those questions.

3. In my view, Ground 1 is not made out.

Ground 2

1. At [7] of its Decision Record the Tribunal recorded the basic personal details in relation to the Applicant. At [8] of its Decision Record, it itemised the documentation provided by the Applicant, and at [9], it referred to the Statutory Declaration and set it out in substance.  From [10] to [13], the Tribunal recorded the Applicant’s evidence at the interview with the Delegate.  From [14] to [28], the Tribunal set out the evidence given by the Applicant at the Tribunal hearing. 

2. Thereafter, as I have said, at [44] and [52] of its Decision Record the Tribunal recorded that it rejected the Applicant’s claims having, as it recorded at [44], “considered all of the applicant’s evidence singularly and cumulatively”. There is no evidence that the Tribunal did not give meaningful consideration to the Applicant’s claims, did not take into account relevant documents or considered and took into account irrelevant documents.

3. In my view, Ground 2 is not made out.

Ground 3

1. I take this Ground as an assertion that the Tribunal did not have regard to the most recent country information in relation to Georgia.  Of course, it is the case that the Tribunal should generally have regard to the most recent country information of which it becomes aware because it is a principle of law generally applicable to public administration that a decision-maker is to make his or her decision on the basis of the most current material available to him or her at the time the decision is made. 

2. It will often be jurisdictional error if the Tribunal does not have regard to the most current material: SZTJQ v Minister for Immigration and Citizenship (2008) 172 FCR 563. In this Ground, the Applicant does not identify “the newest history of Georgia” or the country information to which it is said the Tribunal did not have regard. In this regard, the Tribunal, at [29] of its Decision Record, recorded that the migration agent had confirmed that he had no independent evidence to place before the Tribunal to support the Applicant’s claims of problems in Georgia with mixed marriages.

3. Otherwise, the Tribunal made a number of references to not being able to find independent country information which supported the Applicant’s claims: see [36], [43] and [47] of its Decision Record. Further, country information relating to Georgia and Ossetians is footnoted in the Decision Record of the Tribunal with the most recent country information report being dated 9 July 2014. There is no evidence before me that the country information footnoted in the Decision Record of the Tribunal was somehow out of date or not the most current available.

4. The Decision Record of the Delegate which the Tribunal was reviewing, and a copy of which was given by the Applicant to the Tribunal at the time of her review application, referred to a large body of country information about Georgia of which the most recent date was July 2014.  Otherwise, of course, the choice of, and weight given to, country information is a matter for the Tribunal. 

5. In my view, Ground 3 also is not made out.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  26 November 2018