DJL19 v Minister for Immigration

[2020] FCCA 2102

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJL19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2102

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal made a finding which was not open – whether the Tribunal made a finding which was unreasonable – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438, 476

Cases cited:

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114

Applicant: DJL19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2290 of 2019

Judgment of: Judge Street

Hearing date: 30 July 2020

Date of Last Submission: 30 July 2020

Delivered at: Sydney

Delivered on: 30 July 2020

REPRESENTATION

Counsel for the Applicant: Mr A Silva via Microsoft Teams

Solicitors for the Applicant: Direct Access

Solicitors for the First Respondent: Mr J Tay via Microsoft Teams
HWL Ebsworth

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

Date of order: 30 July 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2290 of 2019

DJL19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 14 August 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa.

2. The applicant was found to be a citizen of Fiji and his claims were assessed against that country. In April 2014, the applicant arrived in Australia on a Tourist visa. In December 2015, the applicant applied for a Protection visa.

3. The applicant claimed to fear harm, in summary, because he had made critical comments on internet blogs about the government of Fiji and that persons in Fiji are targeted when they involve themselves in politics. The applicant claimed that, whilst he did not experience harm in Fiji, he was seeking protection because he feared for his safety if he returned home. The applicant claimed that he would be harmed or mistreated because he would be taken away by soldiers who are given orders to target people who made criticisms on internet blogs. The applicant claimed that he could not relocate to another area and that there was nowhere safe for him in Fiji.

4. On 8 March 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.

5. By letter dated 5 July 2019, the Tribunal invited the applicant to attend a hearing on 13 August 2019. The applicant appeared on that date to give evidence and present arguments and was represented by his migration agent.

6. The Tribunal in its reasons identified the background to the applicant’s Protection visa application.

7. The Tribunal identified the applicant’s migration history. The applicant first arrived in Australia in September 2003 on a Cultural/Social - Sport (Offshore)(TE 421) visa which was granted. The applicant departed Australia in October 2003. The applicant then applied for a Tourist Stream (Offshore)(FA 600) visa in March 2014 which was granted. The applicant arrived in Australia in April 2014. It was not until January 2016 that the applicant lodged an application for a Protection visa.

8. The Tribunal referred to the relevant law, including in an attachment of applicable law incorporated by pagination in the Tribunal’s reasons.

9. The Tribunal recorded raising with the applicant the existence of a certificate under s 438 of the Act. The Tribunal was satisfied that the s 438 certificate was invalid and identified that the information the subject of the certificate was irrelevant.

10. The Tribunal noted the applicant’s international travel history that had been undertaken by the applicant as a rugby player.

11. The Tribunal referred to the applicant’s claims and that he was seeking protection because he was not happy with the situation in Fiji because of there being no human rights, freedom of speech, quarrelling and debating and that the role of indigenous Fijians had been weakened. The Tribunal also referred to the applicant’s claim that he had been very vocal online in anti-government comments towards the Fijian Prime Minister and the Attorney-General. The Tribunal identified these reasons as why the applicant feared returning to Fiji.

12. The Tribunal referred to an incident which the applicant alleged occurred in relation to soldiers coming to his home and taking the applicant to a military barracks for interrogation. The applicant alleged that he provided an apology and was told to make no further criticism of the Rugby Union Chairman or the Fijian government.

13. The Tribunal identified concerns in relation to this evidence of the applicant. The Tribunal identified evidence that it had not been raised by the applicant in his written application for a Protection visa. The Tribunal expressly referred to the applicant identifying in his written application for a Protection visa that he had not experienced harm in Fiji. The Tribunal also noted that the applicant had provided inconsistent evidence to the Delegate about the dates of his alleged detention.

14. The Tribunal raised these matters with the applicant and found the applicant’s response not to be persuasive. The Tribunal found it implausible that the applicant would not specifically claim in his written protection application that he had been harmed in Fiji and not detail his only period of detention if this claim were true. The Tribunal also did not accept that the applicant would be unable to provide consistent dates in relation to the alleged incident and did not accept the applicant’s submissions in relation to his memory improving over time. The Tribunal took into account the detailed explanation by the applicant of his alleged detention but identified its fundamental concern of that account not having been earlier provided and being provided with inconsistent information.

15. The Tribunal found that the incident was fabricated by the applicant to strengthen his claim for protection. The Tribunal was not satisfied that the applicant was detained by authorities or that he was the subject of threats by the Rugby Union Chairman, as claimed.

16. The Tribunal explored with the applicant his delay in relation to seeking protection. The Tribunal referred to the fact that if the applicant genuinely feared harm on return to Fiji he would have raised those concerns at the Tribunal hearing and that he had not done so.  The Tribunal found that the applicant did not raise those fears because he did not hold them.

17. The Tribunal referred to the applicant’s claim of fear from having engaged in internet blogging because he was opposed to the Fijian government. The Tribunal identified the applicant’s evidence about his blogging activity as being inconsistent and found that this undermined the applicant’s credibility. The Tribunal also referred to its adverse findings in relation to whether the applicant was detained in Fiji as claimed and the delay in the applicant’s application for protection. Considering these findings together, the Tribunal concluded that the applicant had fabricated his claims of past harm. The Tribunal placed no weight on the explanations the applicant gave about his reason for delay in making a protection application. The Tribunal also took into account the failure of the applicant to raise the alleged protection concerns at the earlier Tribunal hearing.

18. The Tribunal referred to the applicant’s evidence to the Delegate that after his alleged detention he did not make any more internet blogs because it was not safe for him to put up comments. The Tribunal also referred to the applicant asserting that he started blogging again in June 2014. The Tribunal identified that this conflicted with the evidence that the applicant provided to the Tribunal. Those posts by the applicant started on 3 August 2012, while the applicant was still in Fiji. Those posts included posting while the applicant was still in Fiji on 4 December 2012, 5 March 2013, 10 May 2013, 20 May 2013, 6 September 2013, 21 March 2014 and 21 March 2014. The Tribunal also referred to the applicant’s evidence that he posted an internet blog in 2010 and that nothing happened to him as a result. The Tribunal noted that the applicant’s written protection visa application did not raise his previous internet blogging in either Fiji or overseas.

19. The Tribunal identified the inconsistency in the applicant’s evidence about internet blogging and observed that this demonstrated that the applicant had a flexible approach to the truth and was willing to change his evidence if he thought different evidence could be more persuasive.

20. The Tribunal referred to the copies of a significant number of internet blogs provided by the applicant from 3 August 2012 until 5 June 2018. The Tribunal’s reasons reflect a real and meaningful engagement with those blogs.

21. Notwithstanding the Tribunal’s concerns about the applicant’s credibility, the Tribunal was prepared to accept that the applicant has continually posted internet blogs to date in the same tone as those before the Tribunal. The Tribunal was not prepared to accept that the applicant has posted any internet blogs before 3 August 2012 because of those credibility concerns, as the Tribunal found that the applicant willing to give fabricated evidence about past events in Fiji. The Tribunal found that the internet blogs had been occurring since 2012.

22. The Tribunal was satisfied that the applicant has posted comments because he genuinely holds a political opinion and opposes the present Fiji government, including the Prime Minister and the Attorney-General. The Tribunal, however, did not accept that the applicant has any fear in expressing his political opinion through his internet blogs, noting the applicant’s delay in applying for a Protection visa and the applicant’s inconsistent evidence about his blogging. The Tribunal was satisfied that the applicant blogged, as outlined by him, because he felt free to do so and was not fearful of any harm resulting from this activity.

23. The Tribunal referred to country information, being a Department of Foreign Affairs and Trade (“DFAT”) report on Fiji dated 27 September 2017, and referred to an earlier country information report dated 14 April 2015.

24. The Tribunal found that if the applicant were to return to Fiji he would continue to post internet blogs that are critical of the Fijian government, the Prime Minister and the Attorney-General. The Tribunal referred to country information as to the environment in Fiji concerning the expression of public opinion and referred to country information in respect of concerns in respect of public figures. The Tribunal also referred to social media being a significant forum for political discussion and the number of Facebook users in Fiji and there being an active Twitter and blogger community in Fiji. The Tribunal identified that there is nothing in the country information to suggest that users of social media have been targeted because of political opinions that have been expressed.

25. The Tribunal noted that DFAT assesses high-profile public figures and senior members of opposition parties being at moderate risk of being monitored and intimidated but that they are otherwise a low risk of arbitrary detention or otherwise being harassed. The Tribunal referred to the 2018 elections and that there were opposition parties that participated in those elections.

26. The Tribunal took into account the applicant’s disagreement with the country information that was put to him in the course of the hearing and the applicant’s disagreement with what was reported by DFAT.

27. The Tribunal took into account that the applicant had told the Tribunal he was not involved in political activity when he was in Fiji. The Tribunal found that the political activity by the applicant is confined to internet blogs on social media. The Tribunal accepted that those blogs are critical of the Fijian government and senior political figures in the Fijian government.

28. The Tribunal expressly referred to the media articles that were provided by the applicant to support his claim that he would be subject to harm for his criticism of the Fijian government, the Prime Minister and the Attorney-General. The Tribunal also referred to copies of emails provided by the applicant in relation to a journalist in Fiji and threats allegedly made.

29. The Tribunal referred to having to consider the particular circumstances of the applicant.

30. The Tribunal also referred to a copy of the Fijian Online Safety Bill 2018 (Fiji).

31. The Tribunal, taking into account the current country information contained in the most recent DFAT report about Fiji, did not accept that the applicant faces a real risk of serious harm on account of his political opinion or a real chance of significant harm if he were to return to Fiji now or in the reasonably foreseeable future. The Tribunal, in that regard, expressly referred to the fact that it did not accept that the applicant had been previously detained on account of his criticisms.

32. The Tribunal found that the Fijian authorities will tolerate the past criticisms made by the applicant in his political blogs and will tolerate future criticisms made by the applicant in the same terms.

33. In those circumstances, the Tribunal found that the applicant did not meet the criteria in ss 36(2)(a) and 36(2)(aa) of the Act.

34. Accordingly, the Tribunal affirmed the decision under review.

Grounds in the amended application

1. The grounds in the amended application are as follows:

   (1) The Tribunal made jurisdictional error in making the finding that the Fijian authorities will tolerate the past criticisms made by the applicant in his political blogs and will tolerate future criticism that is made in the same terms since (a) that finding was not open or (b) it was unreasonable

   Particulars

   (a) At CB349[77] the Tribunal accepted that the applicant has continuously posted internet blogs to date, in the same tone as those before the Tribunal.

   (b) At CB349[77] the Tribunal was satisfied that the applicant has posted these comments because he genuinely holds a political opinion and opposes the present Fijian Government, and the Prime Minister and the present Attorney-General in particular.

   (c) At CB349[78] the Tribunal was satisfied that that if the applicant were to return to Fiji, he would continue to post internet blogs that are critical of the Fijian Government, the Prime Minister and the Attorney-General.

   (d) As the Tribunal stated at CB349[78] the question for the Tribunal is what will flow from this activity.

   (e) At CB349[81] the Tribunal accepted that those blogs are critical of the Government and senior political figures in the Fijian Government, and alleged serious misconduct on behalf of officials, and are personally insulting to the people to whom those criticisms are directed.

   (f) At [81] the Tribunal referred to the DFAT (2017) report without analysing the applicant’s special circumstances and abruptly found that:

   In the Tribunal's assessment, the Fijian authorities will tolerate the past criticisms made by the applicant in his political blogs and will tolerate future criticism that is made in the same terms.

   (g) At CB348[79] the Tribunal's reference to DFAT 2017 and 2015 reports does not provide support for the proposition that the authorities will tolerate the applicant.

   (h) The Tribunal Ignored critical country information which suggests that personal criticism of … and … would result in harm.

   (i) The Tribunal Ignored latest country information provided to the Tribunal that states that a young woman who blogged criticising the Fijian leaders was threatened at home by people from the Prime Minister's Office. Similarly, a journalist who carried that story had his own family threatened.

   (j) Thus it was not open for the Tribunal to make that finding or it was unreasonable to make that finding stated at (f) above.

   (2) The Tribunal made jurisdictional error in that it was not open or it was unreasonable for the Tribunal to make a finding that he fabricated the claim about his detention

   Particulars

   (a) At CB343[31] the Tribunal made a finding that the applicant fabricated his claim of detention.

   (b) At CB343[31] the Tribunal stated that it was clear that his protection claims as detailed in his protection claims were based on his blogging activity in Australia. Therefore, the fact the applicant didn't mention his short detention in his PVA where he was not physically harmed, could not affect his credibility.

   (c) There is no justification that the applicant would fabricate the claim of detention and not claim that he was physically harmed which he could have easily done to enhance his case if he was fabricating the incident.

   (d) The Tribunal confuses the issue about internet blogging, alleged delay in applying for protection visa and credibility of his detention. These are separate issues and capable of being assessed on their own.

   (e) The Tribunal questioned the applicant on the incident and in-depth details were given to the Tribunal and the Tribunal could not find fault with that.

   (f) The nature of the event is such that a person who had not experienced could not have given such details and withstand questioning from the Tribunal without making serious mistakes.

   (g) It would be unreasonable to hold some to account about the actual date of the event that happened many years ago where the applicant was able to point out the time period when it took place.

   (h) The protection visa application was prepared without professional help and the issue of detention was only discussed at the Delegate's interview.

   (3) The Tribunal made jurisdictional error in making an unreasonable finding that since the applicant didn't seek protection visa earlier since he did not have a genuine fear

   Particulars

   (a) It is unreasonable for the Tribunal to hypothesise that all applicants fearing for their lives must necessarily have applied for protection visa at the earliest opportunity even if they have other relatively easier options to obtain protection through another visa that will allow safe living away from danger.

   (b) It is unreasonable for the Tribunal to not appreciate the very high hurdle an applicant has to clear when applying for protection visa so it is only natural, that they will only seek that as a last resort.

   (c) The question the Tribunal should have asked is "Did the applicant do something to jeopardise his safety, like by returning back to the country for a short period etc, which is contrary to a claim of well-founded fear", rather than asking "Did he apply for the protection visa at the earliest possible opportunity" because the focus should be on whether he is protected whatever visa he was on not whether he was protected through a particular visa.

   (4) The Tribunal made jurisdictional error in finding that the applicant blogged without any fear of harm resulting from that activity, because that finding was not open on the evidence or it irrational and illogical

   Particulars

   (a) At CB348[77] the Tribunal did not accept that the applicant has any fear in expressing his political opinion through his internet blogs, noting his delay in a applying for his protection visa, and the inconsistent evidence provided about whether he blogged while overseas with his rugby employment. The Tribunal was satisfied that the applicant blogged as outlined by him because he felt free to do so and was not fearful of any harm resulting from this activity.

   (b) It is illogical to use the delay in applying for the visa and his evidence about blogging while overseas with rugby employment to find that he was not fearful of any harm.

   (c) It is illogical to suggest that the applicant didn't fear harm when blogging where Fijian authorities are well known for human rights violations.

   (5) The Tribunal made jurisdictional error in making an adverse credibility finding about his blogging history unreasonably based on blogging while overseas where the applicant based his claim solely on his blogging history in Australia

   Particulars

   (a) The Tribunal at CB343[32] made adverse credibility finding about the blogging history even referring to utilising s424AA where it was unwarranted.

   (b) The Tribunal accepted that he was blogging at least from 2012.

   (c) Applicant's response to questions about blogging was given to respond to the Tribunal and his main history of blogging, that was in Australia could not be affected by any issues.

   (d) The applicant's history of blogging is so long that there could not be a suggestion that he was doing that so to enhance his case.

1. There are two grounds in the amended application that are pressed, being grounds 1 and 2. Mr Silva of counsel on behalf of the applicant confirmed that grounds 3, 4 and 5 of the amended application were not pressed and were abandoned.

Ground 1

1. In relation to ground 1, Mr Silva took the Court to the country information that was in the Court Book, including the country information in the affidavit of Mr Silva affirmed 1 June 2020. Mr Silva also took the Court to the transcript of the Tribunal hearing and the Tribunal’s reasons in developing the submissions first that there was no evidence to support the Tribunal’s findings in the last sentence of paragraph 81 of the Tribunal’s reasons or that the Tribunal’s findings in that regard were not open.

2. It is apparent from the Tribunal’s reasons that the Tribunal fully appreciated the applicant’s migration history and that the applicant had been blogging, as identified in the Tribunal’s reasons, whilst he was still in Fiji. In those circumstances, there was clearly evidence to support the adverse findings made by the Tribunal in the last paragraph of 81. Further, the Tribunal’s reasoning in the last sentence of paragraph 81 cannot be said to be irrational, illogical or legally unreasonable taking into account the findings as summarised above.

3. Mr Silva’s next submission in relation to ground 1 was that there had not been a genuine intellectual engagement with the country information advanced by the applicant and that the Court should infer that it had been ignored by the Tribunal in the making of the adverse findings in respect to the applicant’s fears.

4. The Tribunal does not have to refer to every piece of information before the Tribunal. The Tribunal’s reasons, as summarised above, reflect a real and genuine intellectual engagement with the applicant’s claims and evidence, including the country information.

5. Mr Silva submitted that there had not been a genuine weighing of the evidence on the basis of an argument advanced that reasoning of the kind identified in the Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [38] as well as [48], [49] and [50], had application in the present case.

6. The Court does not accept that the country information referred to by Mr Silva is information that can be described as significant material or important material, or that it was pertinent and contradictory material to which reference was required to be made beyond that identified in the Tribunal’s reasons.

7. The Court does not accept that there is any proper basis to infer that the Tribunal did not take into account the country information identified by the applicant. It was a matter for the Tribunal to determine what weight to give the country information. The adverse findings by the Tribunal in that regard were open.

8. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Silva submitted that the Tribunal’s adverse finding in relation to the applicant having fabricated his claim about detention was not open.

2. Given the delay alone in the seeking of the application for protection, there is an evident and intelligible justification for the adverse finding. In addition, the omission to raise the claim in his Protection visa application provides a further evident and intelligible justification. The Tribunal’s adverse findings in respect of the applicant’s detention claim were logical, rational and open for the reasons given by the Tribunal in paras 24 and 25.

3. No jurisdictional error as alleged in ground 2 is made out.

4. Mr Silva’s submissions in substance invited this Court to engage in impermissible merits review.

5. No jurisdictional error is made out by ground 1 or ground 2 of the amended application. Accordingly, the amended application is dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 30 July 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 27 August 2020