DQZ16 v Minister for Immigration

[2017] FCCA 2139

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQZ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2139

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1951 (Cth), ss.36, 425, 476

Cases cited:

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: DQZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3383 of 2016

Judgment of: Judge Driver

Hearing date: 5 September 2017

Delivered at: Sydney

Delivered on: 5 September 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Johnson of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3383 of 2016

DQZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 October 2016.  The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims and the decision of the delegate and the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 28 August 2017. 

Background and the applicant’s claims

1. The applicant is a citizen of Fiji who last entered Australia on 12 December 2014 on a visitor visa[1].  He lodged an application for a protection visa on 15 January 2015[2].  The applicant set out his written claims to fear harm in Fiji in a typed statement attached to his visa application, which he provided again on 22 June 2016[3].

   [1] Court Book (CB) 92.

   [2] CB 1-48.

   [3] CB 1-52; CB 84.

2. The applicant claimed to fear harm from indigenous Fijians due to his Indian ethnicity and because he was wealthy.  He worked with his father managing a market stall and was targeted by ethnic Fijians.  He was robbed at knifepoint and forced to hand over cash and goods from his stall.  The incident was reported to the police but the offenders were not caught.  His family also operated a small bakery shop which was broken into a number of times until they had to close the store.  The applicant claimed he was “always being harassed and abused”.  He was an “active support member” of the political group Fiji First.  He claimed there was limited work available for young people in Fiji and he was “really handicapped”.

3. At the Tribunal hearing, the applicant referred to two specific incidents where indigenous Fijians attempted to rob and assault him[4].  Despite originally claiming to fear harm on the basis of his membership with Fiji First, he confirmed with the Tribunal that he did not fear harm on the basis of his involvement[5].

   [4] CB 138 at [19].

   [5] CB 138 at [19].

The delegate

1. By a letter dated 20 April 2015, the applicant was invited to attend an interview with the delegate on 14 May 2015[6], which he failed to attend[7].

   [6] CB 71-74.

   [7] CB 92.8.

2. In a decision dated 25 August 2015, the delegate refused to grant the applicant a protection visa[8].  As the applicant had failed to substantiate his claims, the delegate was not satisfied there was a real chance of persecution or a real risk that he would suffer significant harm[9].

   [8] CB 91-97.

   [9] CB 95.3.

The Tribunal proceedings

1. On 21 September 2015, the applicant lodged an application for review with the Tribunal[10].  He gave the Tribunal a copy of the delegate’s decision with his application,[11] as well as a further statement of his claims[12].

   [10] CB 98-102.

   [11] See item 14(a) of the court book index.

   [12] CB 103-107.

2. By a letter dated 24 August 2016, the Tribunal invited the applicant to appear before it at a hearing scheduled for 25 October 2016[13].  The applicant attended the scheduled hearing with a family friend[14].  The applicant provided a letter from the Fiji police force[15] and a copy of his passport[16].

   [13] CB 116-117.

   [14] CB 122-125.

   [15] CB 126.

   [16] CB 127-131.

The Tribunal decision

1. In a decision dated 31 October 2016, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa[17].  The Tribunal outlined the applicant’s protection claims in his visa application and written statement[18].  It also noted his evidence at the hearing that he did not fear harm on the basis of any membership or involvement with Fiji First[19].

   [17] CB 135-151.

   [18] CB 138 at [14]-[19].

   [19] CB 138 at [19].

2. The Tribunal did not accept that the applicant was a credible witness and found he had never faced difficulties from indigenous Fijians or for any other reason claimed.  It found his testimony to be “inconsistent and lacking in detail” and concluded that he was not a witness of truth[20].

   [20] CB 139 at [21].

3. The Tribunal found the applicant’s accounts to the Minister’s Department and at the Tribunal hearing were “significantly inconsistent” and contained omissions regarding central aspects of his claims[21].  For example, the applicant gave different accounts of his experiences with indigenous Fijians to the Minister’s Department and Tribunal[22].  In his statement to the Minister’s Department, he made no reference to the two incidents in 2013 and mid-2014 that were discussed at the Tribunal hearing[23].  The Tribunal found the applicant’s lack of evidence regarding the specific difficulties he faced in Fiji was significant[24].  Accordingly, the Tribunal did not accept that either the applicant or his father were robbed at knifepoint or the applicant was ever personally attacked or robbed by indigenous Fijians[25].

   [21] CB 139 at [22].

   [22] CB 139 at [23]-[24].

   [23] CB 139 at [24].

   [24] CB 140 at [26].

   [25] CB 140 at [27].

4. The Tribunal also found the applicant’s oral evidence at the Tribunal hearing, including that he was targeted by indigenous Fijians because he was Indo-Fijian, was inconsistent with his written statements which referred to Fiji as a peaceful nation where Indo Fijians “live peacefully in the multicultural society”[26].  The Tribunal considered his evidence to be “internally inconsistent” as to whether he feared return due to his ethnicity.  The Tribunal also found that if the applicant was targeted in the past because he was wealthy and because of his family business and home, then he would have referred to it in his initial statement[27].  Further, the Tribunal found the applicant had provided “confusing evidence” regarding whether he feared harm due to his involvement in Fiji First and added to the finding that he was not a credible witness[28].

   [26] CB 140 at [29].

   [27] CB 140 at [30].

   [28] CB 140-141 at [30]-[32].

5. The Tribunal found that as the applicant did not depart Fiji for Australia for over a month after his visa was granted, this suggested he had not been targeted in the manner claimed and, if he was in fear of harm, then he would have departed as soon as he could[29].  The Tribunal also retained concerns given the applicant’s evidence that his parents were able to continue living in the same home and his father continued to run the same business[30].

   [29] CB 141 at [33].

   [30] CB 141 at [34].

6. When the Tribunal considered its credibility concerns cumulatively, it did not accept that the applicant was a credible witness and rejected the entirety of his claims[31].  The Tribunal allowed for the possibility of discrepancies arising from genuine lapses of memory and nervousness but considered these did not explain its concerns.  The Tribunal expressly considered the report dated 17 October 2016 as to a recent break-in at the applicant’s home, however, on the basis of adverse credibility findings and country information regarding widespread document fraud in Fiji, the Tribunal gave the document no weight[32].

   [31] CB 142 at [35] and [39].

   [32] CB 142 at [38].

7. The Tribunal also relied on country information that indicated ethnic Fijians face a low level of discrimination in Fiji and did not accept that the applicant faced a real chance of persecution if he returned to Fiji by reason of his ethnicity[33].  The Tribunal also did not accept that the applicant would face a real chance of persecution involving serious harm for reasons of his involvement in Fiji First, being wealthy, owning a large home, his family business, his religion, as a returnee from Australia or that he may have difficulty finding work[34].

   [33] CB 146 at [47].

   [34] CB 146-147 at [48]-[53].

8. The Tribunal accepted that the human rights situation, level of democracy, level of corruption and general difficulties in Fiji were not as good as Australia but found such general claims did not meet the definition of persecution.  Further, the Tribunal found there was not a real risk he would suffer significant harm because the real risk would be faced by the population of the country generally[35].  The Tribunal concluded the applicant did not meet the refugee convention criterion under s.36(2)(a) or the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act)[36].

   [35] CB 147-148 at [55].

   [36] CB 147-148 at [55].

The present proceedings

1. These proceedings began with a show cause application filed on 1 December 2016.  The applicant continues to rely upon that application.  The application raises grounds of review in narrative form which traverse the applicant’s claims for protection.  The affidavit is supported by an affidavit filed with it which I received as a submission.  In that affidavit, the applicant discusses in more detail the problems he says he confronted or which await him in Fiji.

2. I have before me as evidence the court book filed on 27 April 2017.

3. An immediate difficulty with the application, as pointed out in the Minister’s submissions, is that it does not properly invoke the Court’s jurisdiction under s.476(1) of the Migration Act because the application does not seek a writ of mandamus or prohibition or an injunction. The applicant has had an opportunity to file and serve an amended application which he has not taken up. The technical defect in the application could have been cured orally if the application had raised issues warranting serious consideration. However, as is also noted in the Minister’s submissions, the judicial review application does not contain any proper grounds of review. It simply traverses the applicant’s claims for protection.

4. I invited oral submissions from the applicant this morning about any concerns he may have with the Tribunal decision or the process followed by the Tribunal.

5. The applicant told me that the Tribunal was mistaken in finding that he had problems with Fiji First, an organisation in that country of a political nature.  The applicant says that he had no problems with Fiji First, but he did have problems with Fijian natives.  The Tribunal deals with this issue at [31] of its reasons[37].  The Tribunal noted in that paragraph that the applicant had provided confusing evidence about his involvement in Fiji First.  It stated as follows:

   The applicant also provided confusing evidence at the hearing before me as to whether he feared return due to his involvement in Fiji First.  Throughout his statement to the Department he referred to his involvement in Fiji First.  When asked at the hearing before me whether there was any other reasons he was targeted he referred to his involvement in Fiji First.  He said due to his membership there is no freedom and he cannot go anywhere due to his political association.  He said he was a member but when asked when he joined, he said he could not remember and when asked who led the party he said he did not know.  When the Tribunal raised with him that his evidence appeared lacking in detail and vague as to his association with Fiji First, he said being a member means a person just votes for them.  When asked why he faced difficulties as a member of Fiji First, he said it was because of who he is.  He then said he faced no difficulties as a member of Fiji First and confirmed that he did not face any difficulties in the past as a member of Fiji First, nor fears return on this basis.

   [37] CB 141.

6. The Tribunal recognised that the applicant’s oral evidence was that he did not have a difficulty with Fiji First, although the Tribunal noted that this was not consistent with earlier claims.  This was but one example of numerous concerns held by the Tribunal about confusing and inconsistent evidence provided by the applicant. 

7. The applicant was not able to articulate any other legal issue concerning the Tribunal’s decision or its process.  Neither was any issue apparent to me from my own reading of the material. 

8. The Tribunal’s findings about the credibility of the applicant’s claims and its choice of and reliance upon country information were factual matters for the Tribunal to determine.[38]  The Tribunal provided cogent reasons for concluding that the applicant was not credible and the Court cannot review the merits of the Tribunal’s decision.[39]  Further, by raising with the applicant at the hearing the concerns and problems it identified with the credibility of his claims, the Tribunal ensured that the applicant was on notice at the hearing that his credit and the credibility of his claims were the dispositive issues on the review. No breach of s.425 is demonstrated.[40]

   [38] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282.

   [39] Minister for Immigration v Wu Shan Liang op. cit., at 272.

   [40] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [47].

9. It follows that as well as being incompetent, the application does not disclose an arguable case of jurisdictional error by the Tribunal.

10. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

11. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.  The scale amount is currently $3,667, but at the time the application was filed the scale amount was $3,606.  The applicant did not wish to be heard on costs.

12. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     7 September 2017