DKW16 v Minister for Immigration
[2019] FCCA 334
•15 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DKW16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 334 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal (AAT) decision – whether the AAT made findings that were not reasonably open to it on the evidence before it – whether the AAT took into account an irrelevant consideration – whether the AAT failed to undertake its duty to make inquiries in relation to certain evidence – whether the AAT made certain findings that were irrational and unreasonable and denied the applicant a fair hearing – whether the AAT failed to assess the applicant’s claims for protection cumulatively – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 5H, 5J, 91R, 424, 424A, 425, 426, 476 Federal Circuit Court Rules 2001 (Cth), r. 44.12 |
| Cases cited: Minister for Immigration v Haj Ibrahim [2000] HCA 55; (2000) 204 CLR 1; (2000) 74 ALJR 1556; (2000) 175 ALR 585; (2000) 62 ALD 1 |
| Applicant: | DKW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3147 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 11 September 2018 |
| Date of Last Submission: | 11 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Chaudhry Legal |
| Appearing for the Applicant: | Mr R Chaudhry |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
| Appearing for the Respondents: | Ms S Given |
ORDERS
The application made on 15 November 2016 and as variously amended is dismissed.
The applicant pay the first respondent’s costs as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3147 of 2016
| DKW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 15 November 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 October 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Before the Court
On 23 March 2017 various orders were made, by consent, by a Registrar of the Court for the progress of the matter. These included, amongst other things, giving the applicant the opportunity to file any amended application and any further evidence by way of affidavit and that the parties file written submissions. The applicant had not filed an amended application or written submissions. He filed an affidavit on 2 June 2017. The Minister filed written submissions on 8 March 2018.
An order was also made that the matter be set down for a show cause hearing on 4 September 2018, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).
On that day, the applicant was represented by a solicitor. He sought to proceed by way of an amended application. The matter was set down for a final hearing on 11 September 2018.
Background
The applicant is a citizen of Fiji (CB 14). He arrived in Australia on a visitor’s visa in December 2013 (CB 14). He applied for a protection visa which was received by the Minister’s department on 26 November 2014 (CB 1 to CB 56).
In his protection visa application, the applicant claimed to fear harm in Fiji due to his uncle’s involvement in the military coup in 2006 (he was accused of plotting to assassinate the coup leader), and the resulting “punish[ment]” suffered by himself and his family (CB 20).
He claimed that the Fijian government “controlled” by Frank Bainimarama, who is “delusional” and a “dictator”, targets people who it views as a “threat” (CB 21 and CB 22).
Further, that the authorities are unable to “protect the people” due to being “controlled” by the government (CB 22). In these circumstances, the applicant claimed to face economic hardship and a lack of access to education in Fiji (CB 20).
The applicant was invited to, and attended, an interview before the delegate on 16 February 2015 (CB65 to CB 68 and CB 75.8). The delegate refused the application for a protection visa on 23 February 2015 (CB 73 to CB 82).
The applicant then applied to the Tribunal for review of the delegate’s decision. The application was received by the Tribunal on 31 March 2015 (CB 85 to CB 91).
The applicant was invited to, and attended, a hearing before the Tribunal on 31 August 2016 (CB 106 to CB 107 and CB 111 to CB 113). The applicant submitted further supporting documents to the Tribunal at the hearing (CB 114 to CB 124).
The applicant raised further claims to fear harm in Fiji at the interview with the delegate and before the Tribunal. These included, in summary, that:
a)The applicant’s name had been placed on a “blacklist” as a result of his uncle’s involvement in the 2006 coup ([41] at CB 144).
b)The applicant had been harassed and detained by the police in 2010 as a result of his father calling the police ([36] at CB 143).
c)The applicant had been accused of stealing a mobile telephone in October 2013 and was detained and tortured by the police (CB 76.3 and [40] at CB 144).
d)The applicant’s name was on police records ([38] at CB 144).
e)The applicant claimed to fear harm on the basis of the general civil and political situation in Fiji ([66] at CB 149).
f)The applicant claimed to fear poverty, a lack of education and unemployment in Fiji ([45] at CB 145).
On 1 September 2016 the Tribunal sent a letter, via email, to the applicant inviting him to comment on, or respond to, information that the Tribunal considered may be the reason, or a part of the reason for affirming the delegate’s decision (CB 125 to CB 127).
The applicant responded to the Tribunal by email on 14 September 2016. He provided comments to each of the concerns raised by the Tribunal and also provided further supporting documents, including three written “testimonies” (CB 128 to CB 135).
The Tribunal affirmed the delegate’s decision on 17 October 2016 (CB 138 to CB 151).
In its decision record, the Tribunal considered the applicant’s claims made in his protection visa application ([20] – [22] at CB 141), at the interview with the delegate ([23] – [28] at CB 141 – CB 142), and at the hearing before the Tribunal ([29] at CB 142, to [46] at CB 145 – CB 146).
The Tribunal set out its findings separately in relation to each of the applicant’s claims ([56] at CB 148 to [71] at CB 151).
In relation to the applicant’s claim to fear harm as a result of his uncle’s involvement in the 2006 coup, the Tribunal accepted that the applicant’s uncle had been accused of being involved in the 2006 coup.
However, it did not accept that the applicant had a well-founded fear as a result of this ([60] at B 148). It also did not accept the applicant’s claim that he had been detained by the police. It noted that the applicant had not raised this claim until the Tribunal hearing, and given the significance of this claim, the Tribunal “would expect the applicant to have mentioned this claim earlier” ([62] at CB 149).
The Tribunal did not accept that the applicant had been accused of stealing a mobile telephone. In doing so, it noted the seriousness of the claim, and the applicant’s failure to raise this claim in his protection visa application. It also noted the delay in making his protection visa application after arriving in Australia ([63] – [64]).
As the Tribunal had rejected the applicant’s claims in relation to being detained by the police and being accused of stealing a mobile telephone, the Tribunal did not accept that his name was on police records ([65] at CB 149).
In considering the applicant’s claim to fear harm in Fiji generally due to the civil and political situation, the Tribunal had regard to s.91R(2)(a)- (c) of the Act. It took into account relevant country information, and found that as the applicant was not a “high public profile figure in Fiji”, it was not satisfied he had a well-founded fear of harm due to the general civil and political situation in Fiji ([66] at CB 149 to [69] at CB 150).
In considering the applicant’s claim to fear poverty, a lack of education and unemployment in Fiji, the Tribunal had regard to s.91R(2)(d)-(f) of the Act. The Tribunal considered the applicant’s circumstances, and relevant country information, and was not satisfied that the applicant’s fears in this regard constituted serious harm ([70] – [71] at CB 151). The Tribunal also found that there was not a real risk that the applicant would suffer significant harm on return to Fiji ([72] – [76] at CB 151).
The Application to the Court
The grounds of the amended application to the Court are in the following terms:
“1. The Tribunal, at paragraph 58 of its decision, applied an incorrect line of reasoning on critical facts and arrived at a finding that was not open to from what was submitted in evidence at the Tribunal hearing, when:
a. It did not accept that the Applicant is at risk of educational and employment hardship or threats from the military as a result of the Applicant’s uncle, Inia Latidreketi Tueli’s (uncle) alleged involvement in the 2006 coup when there was no evidence in the Department and/ or the Tribunal files of the uncle’s involvement in the 2006 coup; and
b. The evidence that was made available to the Tribunal by the Applicant post hearing showed that his uncle was opposed to the coup and was arrested and detained on such an allegation in November 2007 and which the Applicant says led to him being denied him a government scholarship for tertiary study and/ or employment opportunities.
2. The Tribunal made findings, at paragraph 60 of its decision, that was not open to it from the evidence available to it in the Department or Tribunal files, it was not satisfied that:
a. the Applicant had a well founded fear of threats from the military as the 2013 Constitution granted amnesty to those involved in the 2006 coup; and
b. it was not satisfied that the Applicant had a well founded fear of being persecuted on account of his uncle,
when there was clear and cogent evidence before the Tribunal was that the Applicant’s uncle had been opposed to the 2006 coup and were arrested on suspicion of trying to assassinate Frank Bainimarama post 2006 coup.
3. The Tribunal asked the wrong question and/ or took into account an irrelevant consideration on the issue of constitutional immunity, at paragraph 60 of its decision, with respect to those involved in the 2006, including the Applicant’s uncle when there was no factual and/ or other bases for the Tribunal to have arrived at such a finding of immunity for the Applicant’s uncle in the absence of any evidence to this effect.
4. The Tribunal failed to undertake its duty to make inquiries with respect to the friendship of the Applicant with Vilikesa Soko and that such failure to make an obvious inquiry about a critical fact which would have been easily ascertained, meant that it did not undertake it statutory duty to review and that such act and/ or omission led it to jurisdictional error.
5. The Tribunal made findings with respect to Jeremaia Soko, at paragraph 64 of its decision, which was irrational and unreasonable and that such act and/ or omission by the Tribunal denied the Applicant’s right to a fair hearing.
6. The Tribunal failed to consider the Applicant’s claim for protection cumulatively, as it did not consider the whole claim in context but rather considered the claim in sub parts as per paragraphs 53 – 71 of its decision.
7. The Tribunal failed to properly assess the Applicant’s claim under the complementary protection provisions under s36(2A) of the Migration Act 1958 and failed to assess whether the ‘real risk’ of significant harm could have been mitigated if the applicant could safely relocate to another part of the country; if Fijian authorities could provide protection and further failed to take into account that the risk to the Applicant personally at the exclusion of the general population of Fiji if he were to return to Fiji.”
[Errors in the original.]
The applicant’s solicitor submitted that grounds one and seven of the amended application were not being pressed, and had been abandoned.
Consideration: Ground Two
Ground two asserts that the Tribunal made certain findings that were not reasonably open to it on the evidence before it. It directs attention to [60] (CB 148) of the Tribunal’s decision:
“60. Furthermore, the Tribunal does not accept that the applicant is at risk of military threats because of his uncle. Throughout the protection visa process, the applicant gave significantly different accounts in relation to this claim. For example, his account differed in relation to when the military last came to his uncle's house, the frequency of the military's attendance and what the applicant told the military. While the Tribunal acknowledges that the applicant was "nervous" throughout the process, it does not accept that this explanation accounts for such substantial differences. The Tribunal further finds that even if it accepted the account that the applicant has asked the Tribunal to rely on, namely that the military last came in 2010, the Tribunal is not satisfied that he has a well-founded fear of threats from the military, given that six years have passed since the military last came to his uncle's house and the 2013 Constitution granted amnesty to those involved in the 2006 coup. The Tribunal does not accept that the applicant has a well-founded fear of being persecuted on account of his uncle.”
The particulars identify these findings as being as follows. One, the Tribunal was not satisfied that the applicant faced threats from the military because the 2013 Fijian Constitution granted amnesty to those involved in the 2005 coup. Two, that the applicant would not face persecution because of his uncle.
The contention is that there was evidence that the applicant’s uncle had been opposed to the coup (not a participant in the coup) and was arrested on suspicion of seeking to assassinate Frank Bainimarama after the coup in November 2007.
Before the Court, the applicant submitted that the Tribunal’s findings, as set out in [60] were, in effect, not reasonably open to the Tribunal, because the applicant had not made any claim, nor was there anything that could be said to arise from the country information, to say that the applicant’s uncle had been involved in the 2006 coup.
To make good this argument, the applicant referred to his written submissions that he made to the Tribunal dated 14 September 2016 (CB 129 – CB 130). In particular at CB 129.7 [to CB 130.4] and following:
“Point 2 - The reason I stated that my uncle (late Mr Inia Latidreketi Tueli) had applied for Protection Visa was because this was what he told us on his usual phone calls. My uncle was jailed for his alleged involvement against the coup government. This can be proven by an article by a local newspaper in Fiji – The Fiji Times on
printer.shtml. This story was also covered by the media in New Zealand on initial reason of entering Australia was because he was unable to return to Fiji as he was threatened to life imprisonment by the then coup government should he return. He was in South Africa as a United Nations Volunteer under the UNV programme. After 3 years under the program he wanted to apply for a permanent post with the UN. I am not too sure of the particulars but from what he told us, to be considered for a permanent post, the applicant is to withdraw from the UNV program and leave the country where he was serving which was South Africa. His other colleagues who was also part of the UNV program returned to Fiji but he was unable to. I believe Australia was his best choice because his political friends were also seeking asylum in Australia. One I can name is Mr. Peceli Kinivuwai. Mr Kinivuwai was the National Director of the political party (Soqosoqo Duavata ni Lewenivanua – SDL) which my uncle was a member of.Maybe my uncle told us he had applied for a Protection Visa to reassure us of his safety and for his own safety reasons.”
[Errors in the original.]
During submissions, the applicant sought to argue that the Tribunal, in effect, proceeded on the basis that he had claimed that his uncle was “involved” in the coup in the sense that he was a participant who acted in support of the coup.
To make good this argument the applicant referred to [56] of the Tribunal’s decision:
“56. The applicant claims that he fears returning to Fiji because of his uncle’s involvement in the 2006 military coup. He believes that he will suffer hardship such as restrictions on education and employment as well as threats from the military because his and his family’s name is on a blacklist.”
In short, the applicant submitted that the Tribunal’s use of the word “involvement” as it appears at [56] meant that the Tribunal proceeded on the basis that he was a participant in the coup. This view of the Tribunal’s understanding is said to be reinforced by its finding at the end of [60] that the 2013 Constitution granted amnesty to those “involved” in the 2006 coup.
In submissions, the applicant placed emphasis on the Tribunal’s use of the word “involvement” as it appears at [56] (CB 148). However, it is clear that the Tribunal was reflecting the use of that word by the applicant himself in his post hearing submissions: “…his [with reference to his uncle] alleged involvement…” (CB 129.7).
Of course, the applicant used that word in the context of “involvement against the coup government” (CB 129.7). However, even in this light, the applicant’s complaint relies on an unfair reading of the Tribunal’s decision.
One, there is no express finding by the Tribunal that the applicant ever claimed that his uncle was “involved” in the coup, in the sense of being in support of the coup.
Two, the word “involvement” is of itself “neutral”. It is the addition of “in” (“involvement in”) or “against” (“involvement against”) that gives it relevant focus. Of itself, therefore, the Tribunal’s use of that word at [60] cannot be said, of itself, to convey the meaning for which the applicant now contends.
Three, in that light, therefore, it is important to consider all of the applicant’s claims made by him concerning his uncle, and how the Tribunal addressed them.
In his application for the protection visa, the applicant claimed, amongst other things (at CB 20):
“[Question] 45. Have you experienced harm in that country?
Yes, I had to drop out of school ever since my uncle death; my uncle raised me up since I was young because my parents separated when I was very young. My uncle Inia Latidreketi Tueli was a victim of the coup in 2006. He was accused for treason. The interim Government claimed that he was the mastermind of the assassination plan to kill interim leader, Commodore Frank Bainimarama. My uncle came to Australia to seek refuge but later passed away in New South Wales with a heart condition. Due to my uncles involvement in the coup all his family members including me, have been victims of the coup, where the government just refused to help us with school assistance, depriving us of basic rights to education. We have been subjected to punishment for something we had no control over. It has harmed me as an individual because it is impossible to develop to my full potential.”
[Errors in the original.]
[Emphasis added.]
It is clear that without context, the use of the word “involvement” in the words emphasised above, could reasonably be read as being involved “in” the coup, rather than “against” the coup. It is the broader context that gives it the meaning for which the applicant now contends.
In any event, what can be said, therefore, is that when regard is had to both this statement, and the applicant’s submissions, the following claim to fear harm as it arises from his uncle emerges.
The applicant claimed to fear harm (amongst other matters) because of his uncle’s “involvement” in (“against”) the 2006 coup.
This “involvement” had adverse consequences for the applicant and his family (“victims”). They were refused help with schooling by the coup government (the “military” coup led by Frank Bainimarama), and were deprived of “basic rights”. The applicant claimed to have been harmed because he was denied the opportunity, through education to “develop to my full potential”.
On a fair reading of the entire Tribunal decision record, it cannot be said that the Tribunal misunderstood the applicant’s claims, or failed to consider them.
At [19] – [46] of its decision record, the Tribunal set out the various expressions of the applicant’s claims as they were put in his protection visa application ([20] – [22]), the interview with the delegate ([23] – [28]), the Tribunal hearing ([29] – [45]), and post-hearing submissions ([46]).
Before the Court, the applicant did not satisfactorily point to where or how, nor is it apparent, that the Tribunal misunderstood, or misrepresented, the applicant’s claims concerning his uncle, and the consequences of his uncle’s action in 2006 for him.
At [20] (CB 141) the Tribunal quoted what the applicant had put in his protection visa application (“…due to my uncles involvement…”). That quote is accurate given what appears at CB 20.
Importantly at [46] (CB 145) the Tribunal recorded that in post hearing submissions the applicant stated “… His uncle was jailed for his alleged involvement against the coup government…”
I note that at [44] (CB 145) the Tribunal reports that at the hearing the applicant gave evidence (amongst other evidence): “…that there was no independent evidence…of his uncle’s involvement in the 2006 coup.”
Whatever seeming ambiguity may have been previously available, it is clear that following the applicant’s post-hearing submissions, the Tribunal understood and recorded his claim, consistent with what the applicant now says was his claim concerning his uncle.
The Tribunal’s analysis, its findings and reasons, are set out at [53] and following. The applicant’s submissions before the Court were directed to parts of this analysis. However, this must be read in the context which precedes it, and as set out immediately above.
When read in that context, and in context of the expression of the applicant’s claims, the following is found.
At [56] the Tribunal certainly made reference to the “…uncle’s involvement in the 2006 military coup”. However, the very next sentence makes reference to: “He believes he will suffer hardship such as restrictions on education and employment as well as threats from the military because he and his family’s name is on a blacklist”.
When read contextually, it is plain that the Tribunal accurately reflected the applicant’s claims. It could not be the case that the Tribunal recorded the applicant’s claims as fearing harm from the military, if his uncle had been a supporter of the 2006 military coup, as opposed to being “against” it.
In the very next paragraph ([57] at CB 148) the Tribunal set out its acceptance of the applicant’s evidence that his uncle: “…was accused of being involved in the 2006 coup”. In context, the word “involved” reflects the applicant’s own use of that word. In the last part of [57] the Tribunal set out its acceptance of the: “…applicant’s evidence that [his uncle] was detained and released after one week in 2006”. The applicant’s uncle would hardly have been detained by the military if he had supported the coup.
It is important to note, that the applicant’s claim to fear harm on return to Fiji was not simply based on the uncle’s opposition to the military coup, and the short detention thereafter.
Rather, when properly read, the applicant’s particular claims, as they related to his uncle, were focused on the consequences personally for him. That is, the denial of education, work, and other “rights” by the military government, because of his connection to his uncle.
What immediately follows at [58] (CB 148) is the Tribunal’s consideration of that specific aspect of the applicant’s claims. While the Tribunal did not accept that the applicant was at risk of educational and employment difficulties because of his uncle’s “involvement” (in context, opposition to it) in the 2006 coup (at [60] – [61] at CB 148), it is clear that the Tribunal considered the applicant’s claims as the applicant now says he put them to the Tribunal.
Before the Court, the applicant’s argument also focused on that part of [60] (CB 148) dealing with “amnesty” to those involved in the “2006 coup”.
The applicant’s argument appeared to have a number of elements. One, that the Tribunal applied, to the consideration of his claim, country information, which was to the effect that amnesty was granted to supporters of the coup, not its opponents (such as his uncle).
The Tribunal did make reference to country information, and specifically to the 2013 Fiji Constitution, which in part, it was acknowledged, restricted certain rights. This is set out at [47] – [52] (CB 146 to CB 147) of its decision record.
This included reference to a report (Freedom House – 2015) which stated: “…that the 2013 Constitution granted amnesty to those involved in the 2006 military coup” (see [52] and the reference back to [45] at CB 145.6).
Before the Court, the applicant submitted that amnesty was only granted to supporters of the coup, not those who opposed it. Therefore, the Tribunal’s reference to it meant it had misunderstood the claim relating to his uncle.
The difficulty for the applicant is that there is nothing in [45], or elsewhere in the Tribunal’s decision record, to say that the country information restricted the grant of amnesty only to those who had the “involvement” “in” the coup.
In fact, this specific matter of amnesty was put to the applicant at the hearing, and he responded (at CB 145):
“45. The Tribunal put to the applicant information contained in DFAT's Fiji Country Report on Fiji dated 14 April 2015. It put to him that elections were held in September 2014 and that Fiji was "generally stable and secure".1 The applicant stated Fiji was not democratic and Fijians saw things differently. Fiji was controlled by the military. The Tribunal put to the applicant that "for low profile and non-political matters, the judicial system [was) generally capable of providing effective state protection".2 The applicant again referred to Bainimarama's brother-in-law, who was paid his salary while in prison. The Tribunal put to him that while there were credible allegations of violent treatment of prisoners by the military, the frequency of such incidents had diminished in recent years.3 Furthermore, DFAT assessed that the likelihood of any individual being subjected to cruel, inhuman or degrading treatment or punishment was low.4 The applicant stated that things were still happening in Fiji and the situation was different on the ground. The Tribunal put to the applicant that DFAT assessed those at risk as high-profile public figures and the information indicated that he was not a high profile public figure.5 The applicant stated that his friend was not high profile and things nevertheless happened to him. Brutality carried on as the PM stood by his men. The Tribunal put to the applicant the Freedom in the World 2015 report on Fiji dated 15 April 2015, in which it was stated that the 2013 Constitution granted amnesty to those involved in the 2006 military coup.6 The applicant stated that the 2013 Constitution was a cover-up of government action. Many died and many were tortured under the military government. The military and the police continued to run the country and control the media. People still lived in fear.”
[Footnotes omitted.]
[Emphasis added.]
Plainly, if the Tribunal had misunderstood the applicant’s claims concerning his uncle, the Tribunal’s reference to this country information was his opportunity to put to the Tribunal what he now says the country information actually meant.
There is nothing from the applicant before the Tribunal to indicate that the amnesty was restricted to the supporters of the coup, or only to military personnel, as he now contends before the Court.
In all, on the evidence before the Court, the Tribunal did not misunderstand the applicant’s claim relating to his uncle.
Paragraph 60, which, as set out above, was the central focus of the applicant’s ground, must be read fairly and contextually.
The applicant claimed that on return to Fiji he feared harm from the military because of his uncle’s opposition to the 2006 coup. The Tribunal did not accept that he would face harm from the military for this reason.
The Tribunal noted the applicant’s inconsistent evidence about past events concerning the military’s actions in relation to his uncle. However, the Tribunal reasoned that even if it accepted that the military last came to his uncle’s house in 2010 (as claimed), then it still did not accept that the applicant’s claim to fear was well-founded.
The Tribunal’s reasons for this were, one, “…Given that six years have passed since the military last came to his uncle’s house…”, and two, because amnesty had been granted to those “involved in the 2006 coup”.
I agree with the Minister that this, when read contextually (and in particular, in light of the country information), is not specifically about, or directed to, the applicant’s uncle. It is directed at the motivation of the claimed persecutors. Noting, of course, the importance in establishing a nexus to a Refugee Convention ground (as now relevantly codified, and to some extent modified, in s.5H(1) and s.5J of the Act) of the motivation of those from whom the applicant claims to fear harm (Minister for Immigration v Haj Ibrahim (2000) 204 CLR 1 per McHugh J at [70] and [102]). In this case, the military.
That is in addition to the lengthy passage of time, the Tribunal reasoned that the 2013 Constitution, and its grant of amnesty, were elements in its finding that the applicant’s claimed persecutors would not be motivated to cause him harm in the foreseeable future (after 2016) for reason of his uncle’s opposition to the 2006 coup.
Ultimately, I agree with the Minister’s submissions that the applicant now has focused on the word “involvement”, and hopes to give it a meaning, which in context is not available. Ground two is not made out.
Consideration: Ground Three
Ground three asserts that the Tribunal took into account an irrelevant consideration. While reference is made to asking the “wrong question”, the written submissions only referred to an irrelevant consideration.
The applicant made no oral submissions in relation to ground three before the Court. He relied on his written submissions. Those submissions, however seek to add another “complaint”. That is, that the Tribunal made a finding that was not reasonably open to it, given the absence of evidentiary material to “support it.”
It must be said that more is expected of legal practitioners who “plead” one jurisdictional error, and then provide submissions which for the most part argue another.
In any event, the “complaint” here also appears to be focused on [60] of the Tribunal’s decision record. At best, the complaint appears to be that the Tribunal’s “reference to immunity” (“amnesty”) at [60], in relation to the applicant’s uncle, was an irrelevant consideration, given that the uncle was an opponent of, and not a supporter of, the 2006 coup. That is, the focus is on the Tribunal’s “finding” that: “…amnesty would negate any risk of harm to the applicant by the military”.
For the purposes of the consideration below, I note there are two elements to the Tribunal’s reasoning at [60]. One, the finding that the applicant was not at risk because of his uncle. Two, that even if it accepted his claim that the military came to his uncle’s house in 2010, the Tribunal found that the passage of time and the amnesty led it to separately conclude he would not be at risk of persecution because of his uncle.
A number of points are relevant to the disposition of the applicant’s ground.
One, an irrelevant consideration is, as explained in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, per Mason J at 39:
“In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.”
In the current case, the applicant has not explained, at all, what statutory prohibition required the Tribunal not to take into account the country information relating to the 2013 Constitution and the amnesty to those “involved” in the 2006 coup. Nor did he satisfactorily explain why in the exercise of its discretion the Tribunal acted unreasonably in taking into account the 2013 Constitution and the amnesty.
Two, for the most part, [60] (to which the applicant’s ground is said to be directed) is focused on the applicant’s own evidence. The consideration at [60] is focused on the applicant’s claim that he had a well-founded fear of persecution, if he were to return to Fiji, due to “military threats because of his uncle”.
As set out above, the Tribunal did not accept that the applicant’s fear for this reason was well-founded. The Tribunal did not accept the applicant’s account which underpinned his claim to fear harm from “military threats” because of his uncle. The reason was that the applicant’s accounts were not reliable, because they were “significantly different”. Further, the Tribunal rejected his explanation as to why that was the case.
On the evidence before the Court, the Tribunal’s rejection of the applicant’s various accounts, and the explanation for it was reasonably open to it, on what was before it. This alone stands as an independent basis on which to make the finding that the applicant did not have a well- founded fear of harm of persecution because of his uncle (see VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [25]).
Even if some jurisdictional error were to attend the second element of the consideration in [60], the critical finding in relation to his uncle would still stand unaffected by jurisdictional error.
Three, in terms of the applicant’s ground and submissions, it cannot be said that the applicant’s own evidence was an irrelevant consideration (even in a broader sense beyond what was explained in Peko-Wallsend). Further, there plainly was evidence on which the Tribunal based its finding. The applicant’s own evidence.
Four, as set out above, the second element at [60] is the Tribunal’s consideration that even if it were to accept the applicant’s account that the military last came to his house in 2010, then this would still not lead to revealing a well-founded fear of persecution.
I pause here to note an important distinction between the first and second elements of [60]. The first was a rejection with reasons given for the entirety of the applicant’s account relating to the fear said to emanate from his uncle.
The second element is specifically focused on a particular piece of the applicant’s evidence and claims. That is, that the military last came to his house in 2010 because of his uncle.
It is in this context that the impugned part of the reasoning relating to this element must be considered. This sits as yet another example of the lack of precision in the applicant’s grounds and submissions, and the unfair reading of the Tribunal’s decision record.
Five, in any event, the Tribunal gave two reasons as to why the applicant’s fear from the military was not well-founded, even if on the basis that the military came to his house in 2010.
The first was the passage of time. That is, six years had passed from the claimed time of that event. The second reason (and that on which ground three only, and apparently, focuses) is that the “2013 constitution granted amnesty to those involved in the 2006 coup”.
On the evidence available to the Court (with reference to that part of [45] which sets out the specific aspects of the “Freedom in the World 2015 report on Fiji”, on which the Tribunal relied) there is nothing to indicate that the amnesty was restricted to the supporters of the coup, or that the word “involved” only referred to them.
On a fair reading, the Tribunal’s reference to the 2013 Constitution, and amnesty, was plainly to reason that all “involved” (in whatever way) in the 2006 coup were granted amnesty. That is, that by 2013, the coup was some seven years in the past, and the 2013 Constitution, in effect, “drew a line” in relation to the 2006 coup.
This view is consistent with other country information to which the Tribunal referred. For example, Mr Bainimarama was the leader of the military coup in 2006, he resigned his military position in 2014. He then formed a new political party which won the subsequent elections with a substantial majority. Mr Bainimarama was Fiji’s Prime Minister at the time of the Tribunal’s decision. The 2013 Constitution was “passed” just before these elections (see [47] – [48] at CB 146).
In that light, when read fairly, the reference to the 2013 Constitution (at [60]), which is referred to in company with the specific reference to the passage of time, reveals that the Tribunal took the view that any visit by the military to the applicant’s house in 2010 needed to be now viewed in the context of the passage of time, and the changing political and constitutional situation in Fiji in that period.
In all, the reference to the Constitution was not an “irrelevant consideration”. The choice of and weight to be accorded to independent country information is for the Tribunal to determine in the proper exercise of its jurisdiction. (See SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 at [16], per Hely J; NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]; VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 (at [32]); Minister for Aboriginal Affairs v Peko-Wallsend (1986) 66 ALR 299 at 309; and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-2 per Brennan CJ, Toohey, McHugh and Gummow JJ, at 291-2 per Kirby J). As to a lack of evidence, plainly that country information was before the Tribunal. Ground three is not made out.
Consideration: Ground Four
Ground four asserts that the Tribunal failed to undertake its duty to make inquiries in relation to the matter of the applicant’s claimed friendship with Vilikesa Soko. The language used in the applicant’s ground would appear to seek to invoke what the High Court said about the Tribunal’s duty to inquire in SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 (“SZIAI”).
As the applicant’s submissions state at [44]:
“44. A Tribunal's duty to make the necessary inquiries was discussed in Minister for Immigration and Citizenship v SZIAI (2009) HCA 39 (23 September 2009). At paragraph 25 of its judgment, the High Court said:
25. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.”
The background to this ground is that, as set out above, following the Tribunal hearing, the Tribunal wrote to the applicant pursuant to s.424A of the Act (CB 126 – CB 127).
As part of his response, the applicant provided three letters in support: “…for evidence in my previous interview” (CB 130.7). Only one of these letters is relevant to ground four. That is the letter from Jeremaia Soko (CB 134 – CB 135). Jeremaia Soko states in the letter that his: “…late son Billy Vilikesa Soko who died at the hands of the police and military 2014” was “a close friend” of the applicant.
In relation to Vilikesa Soko the Tribunal found (at CB 149):
“64. Nor does the Tribunal accept that the applicant was best friends with Vilikesa Soko. He made no mention of being best friends with Mr Soko in his written application form or at the Departmental interview. The Tribunal does not accept the applicant's explanation that he was told to only discuss himself at the Departmental interview and not his friend, particularly when he made claims relating to his uncle. The Tribunal places little weight on the letter from Jeremaia Soko, which was submitted to the Tribunal, given its vague content relating to the circumstances of Vilikesa's death and that it was recently obtained. While his telephone number is listed on his statement, the Tribunal decided not to contact him, given that his identity could not be established over the telephone. The Tribunal does not accept that the applicant has a well-founded fear of being persecuted on account of being accused of stealing a mobile telephone.”
Before the Court, the applicant explained this ground as follows. The Tribunal asked the applicant for “information”. The applicant provided the information, which included information (in the letter) about one of his “best friends”, “who [had been] subject to “police brutality”.
In what was a common feature of the applicant’s submissions, the submissions also argued an additional complaint not stated in the ground, or in any particulars. That is that the Tribunal “chose not to consider” this information.
Contrary to this latter submission, the Tribunal did consider the letter at [64] (CB 149) of its decision record (see above at [105]).
The applicant’s submission therefore can only properly be understood as a complaint that the Tribunal did “not accept”, rather than “not consider”, that the letter provided a probative basis for the applicant’s claimed fear. This submission in the circumstances seeks impermissible merits review, and lacks merit for current purposes.
Further, the applicant’s submission that the Tribunal asked for more “information” must also be rejected. The letter from Jeremaia Soko was given to the Tribunal by the applicant in response to its letter of 1 September 2016. The applicant stated in his response: “…with reference to your letter dated 1 September 2016 referring the aforementioned case I wish to respond accordingly” (at CB 129.5).
The Tribunal’s letter of 1 September 2016 (CB 126 – CB127) did not seek further information as the applicant now contends. Rather, as is clear, the Tribunal’s letter was an invitation to the applicant to comment on, or respond to, certain information already before the Tribunal (CB 126.4). That is, the Tribunal’s letter invoked the language of s.424A, not s.424 of the Act.
The Tribunal’s letter referred to information under three broad categories. One, the applicant’s delay in lodging his protection visa application. Two, some details regarding the applicant’s uncle. Three, inconsistencies in his evidence about when the military came to his house.
There is nothing in the letter to support the applicant’s contention now that the Tribunal sought further information, and that the letter was provided in response to that invitation. There is certainly nothing to indicate that the Tribunal sought information about his relationship with Vilikesa Soko.
What remains, therefore, is that the applicant, absent specific invitation, or even a general invitation, gave the letter to the Tribunal. The complaint now, at best, appears to be that a critical fact in issue was the applicant’s friendship with Vilikesa Soko. It would have been an obvious inquiry for the Tribunal to make by ringing Vilikesa Soko’s father (that is, Jeremaia Soko), and the close relationship could then have been easily ascertained.
Further in submissions, the applicant appeared to argue that Jeremaia Soko should have been treated as a witness, and that the provision of the letter, with telephone number, was the applicant’s request to the Tribunal that Jeremaia Soko be called to give evidence as a witness.
The short answer to this is that the provision of this letter does not comply with the requirements of s.426 of the Act which is concerned with an applicant’s request of the Tribunal to call witnesses. Such a request must be provided to the Tribunal within seven days after being notified of the invitation to the hearing. It would only be in such circumstances that the Tribunal would be obliged to consider whether the witness should be called to give evidence, even by telephone.
Before the Court, the applicant sought to explain the “critical fact” at issue as also being that the police and military were “brutal”. The inquiry could have produced further detail about the circumstances of Vilikesa Sokos’s death at the hands of the police and military. If the Tribunal had contacted Vilikesa Soko’s father it could have verified the authenticity of the letter, and obtain further details.
The applicant now argues that this this could have been “easily ascertained” because Vilikesa Soko’s father provided a telephone number (under the signature block – CB 135.3).
The applicant’s ground is not made out. One, the applicant has assumed that what was said in SZIAI has a broad application. As was made, with respect, clear in that case, there is no general duty on the Tribunal to inquire (see SZIAI at [19]). While there may be some circumstances where the duty arises, these are rare (see SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198).
Two, the applicant did not satisfactorily explain how his claimed friendship with Vilikesa Soko, and what was said to have happened to him, was a critical fact in issue in the applicant’s case.
Even at its highest, and as explained before the Court, what the applicant hoped to achieve by the letter was to show that the police and military in Fiji could be brutal, and by analogy they could be brutal with him if he were to return.
There is nothing in the letter to indicate that the author had anything further to say about the applicant’s actual circumstances, beyond the general attempt to say that what happened to his son could happen to the applicant.
The critical issue before the Tribunal was not whether the police and military could act brutally, but whether on return, the applicant would likely suffer harm for the reasons he had advanced. Of itself, police and military brutality while at least, an implicit part of the applicant’s claim about the situation in Fiji, was not said to be, of itself, a reason as to why he feared harm.
At its highest Jeremaia Soko’s information was related to his own son’s circumstances, not, beyond some general claimed analogy, to the applicant’s circumstances.
Three, also important is that the applicant was unable to show how the information about the details of police brutality to Jeremaia Soko’s son, could be easily ascertained.
While the letter provided a telephone number there was nothing from the author of the letter to say that he would, or could, provide further information beyond that set out in the letter. This is at its highest an assumption, or submission, made by the applicant without any basis to support it.
In any event even if the Tribunal had rung the telephone number, as the applicant now urges that it should have done, as the Tribunal recognised simply ringing the telephone number could not establish the identity of whoever answered, or, indeed, the authorship of the letter. In all, the course of action urged now by the applicant cannot be said to have led to a fact in issue being easily ascertained. In all, ground four is not made out.
Consideration: Ground Five
Ground five asserts that the Tribunal’s findings in respect of Vilikesa Soko (at [64]) were irrational and unreasonable and the Tribunal denied the applicant a fair hearing.
The reference to a denial of a fair hearing, as the Minister correctly submits, appears to place this complaint, as less than a duty to inquire (as emerged with the applicant’s submissions) but more a failure to take oral evidence. Yet another area of dissonance between what was “pleaded” and what was submitted.
The Tribunal’s obligation in the conduct of the review is to provide a fair hearing, not to make out an applicant’s case for them. In this light the applicant attended a hearing pursuant to an invitation issued consistent with s.425 of the Act. On the evidence it was a meaningful opportunity for the applicant to give his evidence and make his arguments about the issues in the review.
Further, there is nothing in the evidence before the Court to suggest that the applicant asked the Tribunal to consider whether or not to take oral evidence from Jeremaia Soko, as a witness. Thus requiring the resumption of the hearing. The mere existence of a telephone number, without more, cannot be said to be a request that Jeremaia Soko be invited to give oral evidence, or to be the subject of a telephone inquiry by the Tribunal.
In any event the Tribunal did consider whether to contact Jeremaia Soko (see above at [105]).
The applicant’s ground, as pleaded, therefore is an attempt to argue, possibly, two things. One, the Tribunal’s reasoning was (at [64]) irrational, and its findings unreasonable. Two, it was irrational and unreasonable not to telephone Jeremaia Soko.
However, the applicant’s submissions to the Court focused, for both grounds four and five (they were addressed jointly in written submissions) as a failure of a duty to inquire.
Given the lack of any satisfactory submission on why the Tribunal’s findings in relation to Jeremaia Soko were irrational or unreasonable, then it is not for the Court to “argue” the applicant’s case for him. That is the role of his legal representative. At best the complaint of irrationality and unreasonableness appeared to be because the Tribunal did not telephone Jeremaia Soko, yet still found adversely to the applicant.
It was not unreasonable or irrational of the Tribunal not to telephone Jeremaia Soko. The Tribunal gave reasons for this which were rational, and reasonably arose from what was before it. This aspect of the applicant’s complaint in ground five therefore does not rise above an attempt to seek merits review.
As to the Tribunal’s findings in relation to the contents of Jeremaia Soko’s letter, that is, it placed little weight on it, then the assignment of weight is for the Tribunal to determine. (See SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 at [16]; NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]; Minister for Aboriginal Affairs v Peko-Wallsend (1986) 66 ALR 299 at 309; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-2 per Brennan CJ, Toohey, McHugh and Gummow JJ, at 291-2 per Kirby J). Ultimately, irrationality or unreasonableness is not made out simply on the basis that the applicant is aggrieved by the Tribunal’s finding. In all, ground five is not made out.
Consideration: Ground Six
Ground six asserts that the Tribunal failed to assess the applicant’s claims for protection “cumulatively”. That is, it considered the claims as “separate parts”, rather than as a whole.
The applicant relies on MZAIU v Minister for Immigration & Anor [2015] FCCA 1898 (“MZAIU”) (a matter in this Court) at [45]:
“45. On my reading of the Tribunal’s reasons I am not persuaded that I can draw an inference of cumulative consideration of the factors set out by the applicant. Therefore absent any direct evidence of cumulative consideration, the Tribunal has, in my view, failed to take into account a relevant consideration and therefore misapplies the statutory task imposed on it. It follows that I find merit in this ground of complaint by the applicant and that he should be accorded the relief he seeks.”
In this light the applicant argued that as in MZAIU, in this case, there was no “direct evidence” of “cumulative consideration”. Therefore the Tribunal similarly did not discharge its duty to review.
I respectfully understood that the Court in MZAIU was focused on the actual language used by the Tribunal in that case in its decision record. In that case the Court was asked to draw an inference that there had been a cumulative assessment in circumstances where there was no specific, or express, statement to that effect in the Tribunal’s decision record (see MZAIU at [45]).
That is immediately distinguishable from the circumstances in the current case where the Tribunal did make a specific and express statement (at CB 151):
“74. The Tribunal has considered the applicant's circumstances individually and cumulatively. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).”
In the current case, the applicant has not satisfactorily explained why that statement by the Tribunal should not be accepted on its face. As the Minister submitted having made that statement, the Tribunal was plainly alive to the need to consider the applicant’s claims holistically. It did not then need to recite each of the claims, and each of the findings, for a second time at [74]. Nor is there anything else in the entirety of the Tribunal’s decision record to support the applicant’s contention now. In all, therefore, ground six is not made out.
Another Matter
I should note for the sake of completeness that at an earlier (to the final hearing) occasion before the Court, I did draw the parties’ attention to the Tribunal’s reference at [59] (CB 148) to what the applicant stated at “the departmental interview”. This was in circumstances where there was no evidence that the delegate’s decision (and the references therein to what the applicant said at the interview) was given to the Tribunal by the applicant thus engaging s.424A(3)(b) so as to exclude the operation of s.424A(1) of the Act.
The Minister made written submissions in relation to this. These were to the effect that no obligation pursuant to s.424A(1) arose in any event. This was because the Tribunal’s reference (at [59]) was an expression of a lack of evidence, that is, a gap in the applicant’s evidence as to his claim to have worked in a hotel. As such, this was not information for the purposes of s.424A(1) (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 at [18]). I agree.
In any event, the applicant (with legal representation) did not pursue this matter before the Court. It can only be reasonably assumed that he had no response to the Minister’s submissions.
Conclusion
In all, no jurisdictional error arises from the grounds of the application, nor from the applicant’s submissions. It is appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 15 February 2019
1