Doq16 v Minister for Immigration

[2019] FCCA 2233

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOQ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2233

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to deal with a claim which arose from the material and evidence before it – jurisdictional error made out – application allowed.

Legislation:

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

Cases cited:

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

Applicant: DOQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3287 of 2016

Judgment of: Judge Street

Hearing date: 14 August 2019

Date of Last Submission: 14 August 2019

Delivered at: Sydney

Delivered on: 14 August 2019

REPRESENTATION

Counsel for the Applicant: Mr M Henry

Solicitors for the Applicant: K&L Gates

Counsel for the Respondents: Ms N Laing

Solicitors for the Respondents: MinterEllison

ORDERS

1. The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’ and dispenses with the filing of any further document in this regard.

2. A writ in the nature of certiorari is issued calling up the record of the Administrative Appeals Tribunal and quashing the decision made on 4 November 2016.

3. A writ in the nature mandamus is issued requiring the Administrative Appeals Tribunal to determine the review application for a Protection (Class XA) visa before it according to law by a differently constituted member.

4. The first respondent pay the applicant’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 14 August 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3287 of 2016

DOQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 1956 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 November 2016 affirming the decision of a delegate not to grant the applicant a Protection (Class XA) visa.

2. On 9 February 2014, the applicant arrived in Australia. The applicant’s immigration history was identified by the delegate. On 19 March 2014, the applicant applied for a Protection (Class XA) visa. The applicant was found to be a citizen of Cameroon and his claims were assessed against that country.

3. The applicant claimed to fear harm by reason of his joining and role in the Social Democratic Front (“SDF”) and a particular incident in July 2011.

4. At the time the applicant lodged the application for a Protection (Class XA) visa, the applicant referred to having documents, being press articles, photographs and membership cards, although no such documents were provided at that stage.

5. On 17 April 2015, the delegate found that the applicant failed to meet the criteria for the granting of a Protection (Class XA) visa. On 27 April 2015, the applicant applied to the Tribunal for review. On 11 August 2016 and 28 October 2016, the applicant appeared before the Tribunal to give evidence and present arguments.

6. The applicant also provided a statement described as a “statutory declaration”. The applicant expressly referred to an extract from the April 2016 edition of a Cameroonian newspaper entitled “Manhunt – What has become of the young Social Democratic Front activists of a particular district?” at paragraph 29 of the statutory declaration. The applicant also referred to the fact that he said in his application for a Protection (Class XA) visa that there might be documents supporting his claim, including press articles, photographs and membership cards, at paragraph 31 of the statutory declaration. The applicant also referred to there being documents that were the subject of a house having burnt down, which appears to be a reference to the SDF membership card in respect of which the Tribunal made particular findings.

7. The obtaining of the relevant newspaper article was the subject of evidence and a statutory declaration given by a particular witness to which the Tribunal referred at paragraph 3 of its reasons. The Tribunal accepted the evidence given by that witness. That witness identified the circumstances in which he was provided what appeared to be a newspaper article. That witness’s statutory declaration referred to that particular witness going to markets and asking around for a particular man named “Vee” and that he went to a food market and was given a document which looked like a newspaper.

8. The applicant’s post-hearing submissions to the Tribunal at paragraph 4.5 referred to the April 2016 edition of the Cameroonian newspaper and explained that the newspaper had not been retrieved from the applicant’s sister but that the applicant’s friend was told there was an article in the newspaper about the applicant which the applicant’s friend bought from a store.

9. The Tribunal referred to there being independent sources which were submitted as verifying the existence of a French language newspaper containing the article pertaining to the applicant at paragraph 41 of the Tribunal’s reasons. The Tribunal also referred to there being a screenshot of a Facebook page of the director of the newspaper which contained an image of the newspaper which shows, in part, the article provided by the applicant and that the Facebook post identified that the article is from edition 102.

10. The Tribunal in referring to country information referred to fraudulent newspaper articles and, under the heading “False newspaper articles” at paragraph 69 of the Tribunal’s reasons, referred to there being certain cases of a newspaper printing false newspaper articles for money when the official edition of the newspaper had already been printed and distributed and a false article was subsequently inserted.

11. The Tribunal made adverse credibility findings in relation to the applicant’s claims concerning the applicant’s SDF membership. The Tribunal provided reasons in support of its adverse credibility findings. Those reasons included reference to the role the applicant asserted he had in the SDF and which was referred to in the newspaper article.

12. The Tribunal referred to the submissions which had been advanced by the applicant. The Tribunal accepted that the newspaper article was not found in the remnants of the applicant’s burnt out home. The Tribunal also referred to its adverse finding that the applicant had been deliberately untruthful in his statutory declaration in relation to the SDF membership card being retrieved from his burnt out home.

13. The Tribunal referred to having raised with the applicant during the hearing the recent newspaper article relating to him in support of his claims. The transcript of the hearing was tendered before the Court. The transcript identifies the Tribunal member raising with the applicant in the course of the hearing:

    “…I’m inclined to accept that if, to accept what you say is true, then, based on the way the Cameroonian government had treated some SDF members, then based on the past adverse inference, that you would be at a real risk of serious and significant harm.”

14. The Tribunal turned to the proposition whether the Tribunal ought to accept the applicant’s alleged profile and to the documents provided. The Tribunal referred to country information, relevantly indicating that the planting of media reports does happen to support refugee claims and that newspapers are paid to publish untrue claims. The Tribunal also referred to the newspaper article being of recent origin and suggested that the applicant had a prior profile. The Tribunal also referred to wondering why there was no contemporaneous media reports at the time of the events. The Tribunal also referred to there being self-censorship for the press and considered what weight to give the newspaper report.

15. The Tribunal referred to the applicant having manipulated documentary evidence in a fraudulent way. This was clearly a reference to the SDF membership cards. The Tribunal made an express finding that it was not satisfied as to the genuineness of the hospital records, the SDF membership cards or the arrest warrant. In contradistinction to those findings, the Tribunal then said it was not satisfied that the newspaper article being provided by the applicant seeking to corroborate his claims provides true or accurate information.

16. The Tribunal found that it was not satisfied that the applicant was a youth leader in the SDF or of adverse interest to authorities as a result of any political involvement or for any other reason. The Tribunal was not satisfied that the applicant’s family home burnt down as claimed or that there was an arrest warrant issued.

17. The Tribunal was not satisfied that the applicant faces a real chance of serious or significant harm on return to Cameroon as a result of past involvement in the SDF and any harm suffered by the applicant and his family as a result of that involvement or on the basis of authorities having an ongoing adverse interest in the applicant, including on the basis of an arrest warrant being issued for him.

18. The Tribunal returned to the applicant’s claimed fear of harm by reason of being a failed asylum seeker and made adverse findings. The Tribunal found that the applicant did not have a well-founded fear of persecution for a 1951 Refugee Convention reason. The Tribunal found that the applicant failed to meet the criteria under ss 36(2)(a) and 36(2)(aa) of the Act.

The ground

1. The ground in the amended application is as follows:

   The Tribunal made a jurisdictional error by failing to deal with a claim that squarely arose from the material and evidence before it; namely, that the Applicant is a person who satisfies the criterion for a protection visa prescribed by:

   (a) s 36(2)(a) of the Migration Act 1958 because he has a well-founded fear of being persecuted in Cameroon for reasons of political opinion by reason of the publication, in April 2016, of the newspaper article in "Pile ou Face" referred to at paragraphs 28 and 41 of the Tribunal's Decision Record ("the Newspaper Article"); and

   (b) s 36(2)(aa) of the Migration Act 1958 because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Cameroon, there is a real risk that the applicant will suffer significant harm by reason of the publication, in April 2016, of the Newspaper Article.

   Particulars

   The Tribunal failed to deal with the claim that the Applicant is a person in respect of whom Australia has protection obligations because of the publication of the Newspaper Article. The Newspaper Article identified the applicant as a prominent political activist, and youth president, of the Social Democratic Front ("SDF") in a particular district, Cameroon. The Newspaper Article also identified the Applicant as a victim of oppression for his political activism. The SDF is the main political party opposing the government in Cameroon and the Tribunal had before it independent country information to the effect that anti-government political activists have been the subject of officially sanctioned violence, arrest and detention. In the premises, a claim squarely arose from the material and evidence before the Tribunal that the Applicant satisfies the criterion for a protection visa by reason of the publication of Newspaper Article on the basis of an opinion imputed to him by government officials who read the Newspaper Article. The Tribunal was not satisfied as to the truth and accuracy of information in the Newspaper Article (Tribunal's Decision Record at [161]). But that finding did not deal with the said claim.

2. Mr Henry of counsel on behalf of the applicant submitted that the Tribunal’s reasons on a fair reading did not deal with a claim which clearly arose on the material that the applicant faced a real chance or a real risk of serious or significant harm by reason of the publication of the newspaper article. Mr Henry referred to the absence of any finding by the Tribunal that the newspaper article had not been published or an express finding that the newspaper article was not genuine or that the newspaper article had not been printed. Mr Henry submitted that, in light of those circumstances, a fair reading of the Tribunal’s reasons reflect the Tribunal finding that it was the content of the information in the article that was not true or correct and that the Tribunal’s reasons should not be read as a finding that the newspaper article was not genuine.

3. Ms Laing of counsel on behalf of the first respondent submitted that the Tribunal’s reasons should be read as having made a finding that the article was not genuine in the reference to the same not being true.

4. The Court accepts the force of Mr Henry’s submissions that the express references to the circumstances in which the newspaper article was found and the reference by the Tribunal in its reasons to the publication of a particular edition is consistent with the Tribunal having accepted that the article was published. In the context of the reasons as a whole, the Court does not accept that the Tribunal made a finding that the article had not been published or that the article was not genuine. The Court does not regard the words in the Tribunal’s reasons referring to “or any reason”, which appear twice, as making a dispositive finding if any such claim to fear harm by reason of the publication of the newspaper article clearly arose.

5. Mr Henry took the Court to the decision in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 as helpfully summarising the principles in relation to whether a claim clearly emerges on the material at paragraph 18 and that the material includes the findings made by the Tribunal at paragraph 26.

6. Ms Laing referred to the applicant being represented and the absence of an express claim to fear harm by reason of the publication of the newspaper article. Mr Henry submitted, in part, that this is understandable because of an assumption that the newspaper article was truthful. The Court has difficulty with such an assumption in the circumstances where the delegate had rejected the applicant’s claim. It is not for this Court to evaluate the newspaper article or its contents and whether, if published, it supports a finding as sought by the applicant in support of granting a Protection (Class XA) visa.

7. The Tribunal’s reasons, however, do appear to accept that the newspaper article was published in 2016. Given the content of the newspaper article referring to the applicant’s role in the SDF, irrespective of the reference to whether the applicant had any history with the SDF, the Court accepts the force of Mr Henry’s submission that, in light of the findings by the Tribunal together with the material referred to above, there was a claim which clearly emerges in the circumstances of the present case. That claim is whether the applicant faces a real risk of serious harm or significant harm by reason of the publication of the newspaper article in 2016.

8. The Court raised with Mr Henry that this was a matter which could have been articulated in the submissions advanced on behalf of the applicant. Mr Henry responded that the document was provided in support of the applicant’s claims. The fact that the applicant’s claims as earlier identified referred to press articles, even though not contemporaneous, is a further material consideration in the context of this case supporting the existence of a claim clearly emerging from the material which should have been the subject of dispositive findings. The failure by the Tribunal to do so was a failure to conduct the review as required under the legislation and, as such, a jurisdictional error.

9. The applicant also asked for an order that the writ of mandamus include requiring a differently constituted Tribunal. No criticism is made of the Tribunal member, however, in light of the adverse findings and applying the might/might not test, it is appropriate to do so.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 14 August 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:

Date: 10 October 2019