DZG17 v Minister for Immigration
[2018] FCCA 1829
•12 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZG17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1829 |
| Catchwords: MIGRATION – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – assessment of applicants’ claims by Tribunal – whether Tribunal acted erroneously – whether Tribunal denied applicants procedural fairness by refusing adjournment – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 426(2), 426(3), 474(7), 476(2) Racial Discrimination Act 1975, ss.9,10 |
| Cases cited: British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 |
| First Applicant: | DZG17 |
| Second Applicant: | DZH17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 875 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 16 March 2018 |
| Date of Last Submission: | 16 March 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 12 July 2018 |
REPRESENTATION
| The First and Second Applicants appeared in person |
| Counsel for the First Respondent: | Ms Forder |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The amended application filed on 24 January, 2018 be dismissed.
The applicants pay the first respondents costs of and incidental to the application fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 875 of 2017
| DZG17 |
First Applicant
| DZH17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are citizens of Canada. They claim to attract Australia’s protection obligations pursuant to ss.36(2) and 36(2)(aa) of the Migration Act 1958 (Cth). In April, 2015 they applied for Protection (Class XA) visas, but that application was refused. The second respondent, upon a merits review of that decision, affirmed the decision not to grant the applicants protection visas. It is in respect of that decision that they now apply to this Court for judicial review. They allege that the second respondent’s decision is affected by jurisdictional error.
In summary, the applicants argue that the second respondent committed jurisdictional error by unreasonably rejecting the first applicant’s request for an adjournment so that she could provide further evidence to support her claims. Additionally, they argue that the second respondent was wrong to reject their application because it had accepted much of their evidence and the statements that they supplied from their witnesses in support of their applications. Nonetheless, the second respondent was not satisfied that Australia’s protection obligations were engaged in respect of the applicants – a decision which they argue was plainly legally unreasonable, illogical or irrational.
The applicants represented themselves before me. Despite orders to do so, they filed no outline of submissions to support their case. They made oral submissions in support of their application which, in the main, were directed to the merits of the second respondent’s decision. Although it was not entirely clear, it seems that the applicants sought an adjournment to allow them time to gather further material and bring witnesses from Canada to give evidence. In the circumstances, an adjournment would be for no purpose because the material that the applicants sought to put before the Court (as outlined in and annexed to the first respondent’s affidavits filed on 28 September, 2017 and 29 January, 2018) could not be received. It was not before the Tribunal or the first respondent’s delegate.
The first respondent opposes the application. The second respondent abides the orders of the court. The first respondent filed written submissions in support of his opposition to the application. The factual content of those submissions was not challenged by the applicants.
These reasons are more fulsome than they might otherwise be because the applicants’ claims are multifarious and discursive. They are spread across a number of lengthy documents that are difficult to follow. By these reasons I have attempted to demonstrate to the applicants that their submissions that the Tribunal did not dealt with various aspects of their claims is incorrect. To do so, I have set out at length various passages from the Tribunal’s decision, something which I would ordinarily attempt to avoid.
Background
The first applicant arrived in Australia on 10 November, 2013 on a Visitor (Class FA) (Subclass 600) visa. The second applicant arrived in Australia on the same day on a Working Holiday (Subclass 417) visa. At the time of their arrival in Australia, the applicants were de facto partners. They subsequently married in Australia on 10 June, 2015.
On 15 April, 2015 and after applying for a number of different types of visas, the applicants applied for protection visas. The first applicant made claims for protection on her own behalf. The second applicant was included in her application as a member of the first applicant’s family unit. He did not make claims for protection on his own behalf.
In argument the first applicant claimed that she made application for a “humanitarian visa” as well as a protection visa, but there is no evidence that she made an application for anything other than a protection visa. Her oral submissions revealed that she was confused about the visa application process. She suggested that even though the first applicant (by his delegate and then later the Tribunal) had refused the applicants’ protection visa applications, he was nonetheless obliged to consider granting them some other type of “humanitarian” visa. That is plainly not so. It is likely, I think, that the first applicant was referring to the complementary protection criteria which, if found to be satisfied, would lead to the grant of a protection visa. Both the first respondent’s delegate and the Tribunal considered that matter but neither was satisfied that the complementary protection criteria were met.
On 13 November, 2015 the applicants attended an interview with a delegate of the first respondent. On 15 January, 2016 the delegate refused to grant the applicants protection visas.
On 7 February, 2016 the applicants applied to the Tribunal for review of the delegate’s decision.
The applicants provided the Tribunal with extensive written submissions and much supporting documentation over the time from when they made their application for review until the review was determined – a period of almost 18 months.
The Tribunal could not decide the application in the applicants’ favour on the material before it so it invited them to appear to give evidence and present arguments in support of their claims. The Tribunal hearing was set for 5 June, 2017. However, on 4 May, 2017 the applicant requested a postponement of the hearing date for at least 30 days so that the first applicant might obtain further documents from Canada. The Tribunal refused the request on the basis that it had been more than two years since the first applicant lodged her protection visa application and more than one year since she lodged her application for review and the Tribunal had provided the applicants with more than five weeks’ notice of the hearing.
The hearing occurred on 5 June, 2017. Both applicants attended. After that hearing, the applicants provided the Tribunal with additional documents on two occasions.
In the Tribunal proceedings, the first applicant claimed that she was a 47 year old woman born in Canada to Canadian parents. She claimed that she had been sexually abused by her biological father during her childhood. She claimed that she has two children fathered by her biological father.
She claimed that the Ministry of Children and Families (in Canada) a body charged with the protection of children, never protected her when she complained about the sexual abuse and made only very feeble attempts to intervene on her behalf. She says that “they” informed her that they would have no other choice but to send her back to live with her mother (from whom her sexually abusive father was separated) and stepfather, but she did not want to do that because she feared both of them also. The first applicant claimed that she and her mother have a difficult relationship.
By the time the first applicant was 19 years of age, she had given birth to her first child. After the birth of her child her mother contacted the Ministry for Children and Families and informed them that the applicant was an unfit mother with a baby daughter conceived out of incest. That led to child protection proceedings in Canada, seemingly between the first applicant, her mother and the State concerning the first applicant’s child. Despite initially losing care of her child in the proceedings, the first applicant made numerous court applications and was eventually granted temporary custody of her daughter. However, she says that her mother continuously attempted to have her removed again by making false allegations.
The first applicant contacted her biological father and he assisted her by hiding her from her mother and her supporters, but he recommenced his sexual abuse of her. At age 20, her second daughter was born, again fathered by her own father. The Ministry for Children and Families apprehended both children and placed them in the care of the applicant’s mother and stepfather.
In 1988 the first applicant’s biological father was jailed for 6 months for committing incest. The first applicant also attempted to have her mother and stepfather charged with physical and sexual abuse, but the Police and the Ministry for Children and Families, she says, placed the blame on her and nothing was done.
In 1989, at age 21, the first applicant was diagnosed with severe Post Traumatic Stress Disorder and suffered extreme anxiety with on-going panic attacks. The first applicant made a court application to secure access rights to her children and she was ordered to attend parenting classes and counselling.
In 1992 the first applicant was married and in December of that same year, she gave birth to another daughter. At about this time, the first applicant suspected that her two daughters in her mother’s care were being sexually abused in that household and she made another application to obtain full custody of those children. There was in place at that time an order for joint custody, presumably between the first applicant and her mother. The first applicant says that when her mother found out about her fresh application she became extremely angry and demanded to have the children in her care all of the time. The applicant contacted the Police but they informed her that they could not assist.
The first applicant claimed that she tried to gather information about the abuse and she gave the evidence she had to the Police, yet nothing was ever done. She claimed that when she went back to the Police to pick up her evidence, some was missing. She contacted the Ministry for Children and Families and was informed that they were not getting involved and that it was a “family court matter”.
The first applicant claimed that her mother and stepfather continued to harass her and followed her everywhere she went. If she obtained employment she claims they would see to it that she lost that job. There would be anonymous phone calls to her employer informing them that the first applicant was a child abuser. She said that her mother and step-father could find her through her driver’s license or her social security number. On one occasion she sued her employer for wrongful dismissal and she won the case.
In 1998, a family court trial commenced so the first applicant could get “full custody” of her daughters. The trial lasted eight days. She said that she called much evidence including six professional witnesses namely, a physician, a psychologist, a psychiatrist, a nurse, a teacher, a private investigator and six lay witnesses. However, the trial judge ruled against her.
Between the trial concluding and the judge delivering judgment, the first applicant says that the Ministry for Children and Families came to her home and attempted to apprehend her third daughter. That happened at least twice but she was never home so the Ministry did not apprehend her daughter. She says they “threatened her and ransacked her home looking for her”.
In September, 1998 the Ministry of Children and Families signed an agreement that the first applicant’s third daughter would not be apprehended if the applicant produced her and complied with their request to have her seen by a child psychologist in Vancouver. The applicant agreed and the doctor’s assessment was that there were no signs of sexual abuse, so her daughter was returned to the first applicant.
In October, 2011 the applicant had written and requested a copy of her personal files from the “Freedom of Information” in Canada, however, by January, 2012 no files were produced to her. The first applicant believes that she did not receive her files or other information because her family has a “deep connection” with influential people in all branches of the government in Canada and the files were hidden or destroyed.
The first applicant believes that no matter in which province in Canada she resides, her mother and stepfather will always find her through her social security insurance number or driver’s license. She thinks that if she ever needed welfare assistance in Canada she would not receive it because of her family’s “connections” in the government in Canada. She has been denied social help when she has needed it. The first applicant also believes her character has been damaged because of the media coverage in 1993 about the incest and her children born from it.
The second applicant did not present any of his own claims in his protection visa application, but the Tribunal noted that at the Tribunal hearings, both applicants claimed that they feared that the second applicant may be harmed by the same sources the first applicant feared if he returned to Canada. His association with the first respondent was sufficient to put him in harm’s way.
The first applicant provided the Tribunal with authority to gain access to personal information held about her in Canada. The applicants requested that the Tribunal access that information. However, they were also anxious about “Canada” then knowing where the first applicant was. Whilst it was unclear to the Tribunal exactly what information it was being requested to seek from “Canada”, the Tribunal member explained to the applicants that it was difficult to see how the Tribunal would achieve a different outcome by attempting to seek the information with the applicant’s permission if the applicant had already sought to obtain all necessary personal information from Canada. That was especially so where the first applicant had a private investigator attempt to obtain that information and she was also unsuccessful.
The Tribunal provided the first applicant with additional time following the hearing to provide further information to it. On 12 July, 2017 the applicants attended a second hearing before the Tribunal.
The Tribunal was aware of difficulties with the first applicant’s mental health and asked at the commencement of each hearing whether she was capable of proceeding. In that respect, the Tribunal recorded:
[28] At the beginning of each Tribunal hearing, the Tribunal noted that the applicant had provided statements from Bravehearts which indicates that the applicant suffers or has suffered from Post -Traumatic Stress Disorder, stress, anxiety and depression. The Tribunal asked the applicant if she felt capable of proceeding with the hearing and the applicant told the Tribunal that she did.
The Tribunal considered the applicant’s apparent capacity to engage in the two hearings before it:
109. The Tribunal has considered the applicant’s competency to give evidence given the assessment provided by Bravehearts of the applicant’s experience of PTSD, stress and anxiety. The Tribunal has had the opportunity to listen to the delegate’s interview and to take evidence from the applicant in person. The applicant was supported by her husband and while some of the evidence the applicant provided was upsetting for her, the applicant appeared to the Tribunal to understand the questions put to her and respond appropriately. The applicant’s oral evidence was consistent with her written claims and the Tribunal is satisfied the applicant participated in the hearing in a real and meaningful way. The applicant requested a copy of the hearing audio following the first Tribunal hearing and subsequently provided a further submission addressing certain aspects of her evidence which the Tribunal has considered. The Tribunal has also taken into account the assessment of the applicant’s mental health in assessing her evidence.
In its detailed reasons for decision, the Tribunal considered in depth the applicants’ circumstances, their relationship and immigration history, their evidence as well as new claims articulated by them during the first and second hearings. The Tribunal’s reasons are extensive.
On 1 August, 2017 the Tribunal affirmed the delegate’s decision. The Tribunal accepted many of the matters claimed by the applicants. At [116] it said:
116. As noted above, the Tribunal has carefully considered all of the applicants’ evidence and while new claims were articulated by the applicants during the Tribunal hearings (for example, that [second applicant] will be killed if he returns to Canada, the applicant was raped at gunpoint by a police officer and that members of a ‘religious organisation’ the applicant was involved with in the 1980’s will kill the applicant if she returns to Canada), the applicant was generally consistent in evidence and the Tribunal is prepared to give the applicants the benefit of the doubt. Therefore, for the purposes of this review, the Tribunal is prepared to accept the following:
• The applicant has three children who are all Canadian citizens and the youngest child is in her early twenties living in Canada.
• The applicant is married to a Canadian citizen and they have an ongoing relationship.
• The applicant and her husband lodged applications for work visas in Australia but their applications were unsuccessful.
• The applicant was the victim of child sexual abuse and she has two children with her biological father.
• The applicant lost custody of her two eldest children in 1998 following a court decision.
• The applicant was not satisfied with the decision in her child custody case and believes she was treated unfairly by the judicial process both during the trial and subsequently.
• The applicant was jailed during her custody trial for contempt of court.
• The applicant made sexual assault allegations against her mother, step -father and half-brother.
• The applicant made sexual assault allegations against her mother and step -father on behalf of her two eldest children and that the police lost some of the material that the applicant claimed was evidence of that abuse.
• The applicant has a subjective fear that a number of authorities and agencies of government are against her and deny her access to services.
• The applicant has a subjective fear of her mother and step-father and she believes they have influential connections across Canada and through these connections, she believes her mother and step -father have prevented and will continue to prevent the applicant from living a full life.
• The applicant has an acrimonious relationship with her family and they may have done some things to undermine her.
• The applicant has been the victim of identity fraud following a fake death certificate being used to obtain funds held in trust in her name.
• The applicant is unable to obtain files or documents associated with her child custody case other than the court orders.
• The applicant was involved in a ‘religious organisation’ with her mother and stepfather that included Canadian identities such as Robert Pickton and the Hells Angels until she left the organisation in the early 1980’s.
• The applicant has been able to obtain welfare, medical assistance, a passport, get married, get divorced, set up a business and travel in the past. The applicant was also successful in her child support case in 1992, in obtaining temporary custody of her eldest child, successful in an unfair dismissal case and gained visitation rights with her two eldest children and custody of her third child by a court ruling.
The Tribunal continued:
117. However, the Tribunal does not accept that there is a government conspiracy (involving any government department or agency or the RCMP) against the applicant to harm her or prevent her from accessing information or services; that members of a ‘religious organisation’ involving the applicant’s mother and step -father, the Hells Angels and Robert Pickton will harm or kill the applicants in the reasonably foreseeable future; that either of the applicants face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future from the applicant’s mother and step-father; if they address the applicant’s identity fraud or government debt issue; or pursue a claim of negligence against the state.
The Tribunal thereafter in its reasons gave detailed consideration and reasons for rejecting each of those matters. Given that the Tribunal did not accept that the first applicant faced a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future, or that the second respondent faced a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future due to his association with the first applicant, the applicants were unsuccessful and the delegate’s decision was affirmed.
Grounds of review
The application filed on 5 September, 2017 contains 20 grounds of review. The first applicant’s affidavit filed on 5 September, 2017 contain 21 distinct complaints. Her affidavit filed on 28 September, 2017 contains 78 discrete complaints about the Tribunal’s decision. Some of the grounds of review are repeated across the three documents.
The first applicant’s affidavit filed on 28 September, 2017 has a number of annexures. Some of them were before the Tribunal and others were not. Those that were before the Tribunal are also before me in the Court Book filed by the first respondent. Some of them were not before the Tribunal or the first respondent’s delegate. The first respondent objected to inclusion of those annexures in the evidence before me. The objection is well taken. The material is inadmissible and I have paid it no attention.
The amended application filed on 24 January, 2018 contains 16 grounds of review. The first applicant filed another affidavit at the same time (24 January, 2018). It expands upon those grounds and appears to add some new complaints. Some of these grounds and complaints duplicate the matters raised in the initial application and the earlier affidavits. As the written submissions for the first respondent observe, it is not clear from the applicants’ material whether the grounds of review in their amended application are intended to supersede the grounds of review in the application filed on 5 September, 2017. Nor is it clear whether the complaints in the first applicant’s affidavits filed on 5 and 28 September, 2017 and 24 January, 2018 are intended as grounds of review in their own right. The applicants have not filed any written submissions.
The applicants’ two applications and three affidavits represent a morass of complaint with the second respondent’s decision and reasons. Many of those matters amount to an impermissible attempt at merits review of the second respondent’s decision. There are some matters, however, which if made out, might suggest jurisdictional error. The written submissions delivered on behalf of the first respondent have grappled with the morass of material in an insightful and helpful way by considering similar grounds and complaints together. I have adopted those groupings in these reasons under the headings that follow.
Failure to consider relevant material
Application, grounds 3, 6-9; Affidavit of the first applicant filed 5 September 2017, [3], [6]-[9]; Affidavit of the first applicant filed 28 September 2017, [19], [23], [24], [28]-[32], [34]-[37]; Amended application, grounds 3, 6-9; Affidavit of the first applicant filed 24 January 2018, [3], [6]-[9]
The applicants make various assertions that the Tribunal failed to consider material provided to it, including the second applicant’s statement and evidence, psychological reports, evidence of corruption in the Royal Canada Mounted Police, an email by Lillian Kelly, and various character references. But, just because the Tribunal has not referred to material in its reasons for judgment, it does not mean that it has not given that material consideration. The Tribunal is not required to expressly refer to each and every individual piece of evidence provided by the applicants or to make findings regarding each item of evidence. The Tribunal set out the material that it had before it in its reasons for decision at [22] and [25]. The list was extensive and comprehensive. The Tribunal recorded that it had considered all of the applicants’ evidence. In the absence of evidence to the contrary, the Tribunal’s reasons for decision should be taken as an accurate record of that which it records.
Despite the applicants’ assertions to the contrary, the Tribunal specifically referred to:
a)the unsigned statement of the second applicant (which must be taken to include the online links provided, especially in circumstances where the first applicant herself gives evidence that the Tribunal told her it had considered those links);
b)evidence given and claims made by the second applicant;
c)the statements provided by Bravehearts concerning the first applicant’s mental health;
d)an email and letter by Lillian Kelly;
e)a letter provided by Don Corneau;
f)statements of Patricia McLaughlin;
g)each of the character references referred to by the first applicant; and
h)the print media reports provided the first applicant.
The applicants’ complaint that the Tribunal did not consider this material is in truth a complaint that the Tribunal did not use the material in the way contended for or expected by the applicants. It is a matter for the Tribunal to determine what, if any, weight it gives any particular item of evidence and how it otherwise uses that material in its process of reasoning. The applicants’ complaints about these matters go only to the merits of the Tribunal’s decision, something that this Court cannot review.
These grounds do not reveal any jurisdictional error.
Failure to consider claims
Application, grounds 4, 19; Affidavit of the first applicant filed 5 September 2017, [1A], [4], [16]; Affidavit of the first applicant filed 28 September 2017, [19]; Amended application, grounds 4, 5; Affidavit of the first applicant filed 24 January 2018, [4], [5] and page 8
By the matters raised in these parts of the abovementioned documents, the applicants suggest that the Tribunal failed to consider certain of the first applicant’s claims for protection.
The first complaint appears to be that the Tribunal failed to consider that by reason of the first applicant’s age, health, psychological or financial state she would suffer serious and ongoing and irreversible harm and continued hardship if returned to Canada. However, as the first respondent points out, the applicants did not claim before the Tribunal that if returned to Canada the first applicant would suffer serious harm or significant harm as a result of her age.
Insofar as the other matters are concerned, the Tribunal did consider the applicant’s health and psychological state. It was clearly aware of them:
109. The Tribunal has considered the applicant’s competency to give evidence given the assessment provided by Bravehearts of the applicant’s experience of PTSD, stress and anxiety. The Tribunal has had the opportunity to listen to the delegate’s interview and to take evidence from the applicant in person. The applicant was supported by her husband and while some of the evidence the applicant provided was upsetting for her, the applicant appeared to the Tribunal to understand the questions put to her and respond appropriately. The applicant’s oral evidence was consistent with her written claims and the Tribunal is satisfied the applicant participated in the hearing in a real and meaningful way. The applicant requested a copy of the hearing audio following the first Tribunal hearing and subsequently provided a further submission addressing certain aspects of her evidence which the Tribunal has considered. The Tribunal has also taken into account the assessment of the applicant’s mental health in assessing her evidence.
It found that the first applicant would be able to find employment and access services, including health and welfare services and would have the support of the second applicant and his family if returned to Canada, such that there was no real chance of serious harm or real risk of significant harm:
142. The Tribunal acknowledges that the applicant has a subjective fear of her mother and step- father. However, given the applicant’s mother and step-father reside in British Columbia, the Tribunal does not accept that the applicants cannot return to Alberta where they were living prior to their arrival in Australia (or any other province they chose). The applicants have demonstrated that they are resourceful and adaptable in moving to Australia and setting up businesses and finding housing and employment. There is freedom of movement in Canada and universal access to services such as health care.
143. The Tribunal does not accept the applicant’s reasons for why she cannot return to Canada given her reasons largely relate to her ability to access services and assistance. While provincial and federal government departments have a level of connectivity, given the Tribunal does not accept that there is a government conspiracy against the applicant, the Tribunal finds that subject to eligibility and addressing the identity fraud issue and/or settling an outstanding debt the applicant may have, there is no reason why the applicants would be denied access to services they are entitled to. The Tribunal also notes that the applicant’s evidence was that such a claim was not borne out in reality given the applicant stated that she was able to access health care and find housing and employment when she lived in Alberta. While the Tribunal notes that the applicant later claimed her health care was withdrawn and that it would cost to access these services, the Tribunal notes country information that states that even in states like BC and Alberta that require the payment of provincial health insurance, the Canada Health Act states that health services cannot be denied due to financial inability to pay premiums. The Tribunal also notes that in order for the applicant to continue her treatment, country information indicates a range of mental health services are accessible through primary health care and non-government providers. Even if some of these services require private health insurance gap payments or full payment, the Tribunal does not accept the applicant will not be able to meet these costs given she told the Tribunal these are the same arrangements she has in Australia in order to meet the cost of her treatment.
144. The Tribunal does not accept that the applicant will not be able to secure employment upon return to Canada. The Tribunal notes that the applicant claimed that when she lived in Canada, she lost jobs because anonymous phone calls were made to her employer making accusations against her. However, the Tribunal is not satisfied that the reason the applicant lost jobs was due to anonymous phone calls and nor is the Tribunal satisfied of the applicant’s claim that the anonymous phone calls were made by her mother and step-father. The Tribunal finds the applicant’s evidence that she bumped into a previous employer around six months after she lost her job in 2010 and the employer told her she was let go due to an anonymous phone call, to be unreliable. The applicant’s evidence was also that she was told by employers that she ‘did not fit’ and that she did not know whether the calls were made by her mother and step-father and suggested that if it wasn’t them, it was someone they knew.
145. The Tribunal also notes that the applicant was successful in an unfair dismissal case which indicates to the Tribunal that the applicant is able to avail herself of mechanisms to ensure she is not dismissed unfairly. On this basis, the Tribunal places no weight on the claim that the applicant lost jobs due to anonymous phone calls made by her mother and step-father or anyone they know and therefore, the Tribunal is not satisfied that the applicant will be unable to secure employment if she returns to Canada due to anonymous phone calls. As noted above, the Tribunal also acknowledges the adaptability and resourcefulness of the applicants in their relocation to Australia and in the applicant’s case, her ability to set up and grow a successful business. The applicant also told the Tribunal that she has experience setting up and running a music magazine publishing business in Canada and the Tribunal sees no reason why the applicant could not return to Canada and again set up her own business.
146. In returning to Canada, the Tribunal also notes that the applicants will have each other’s support and that [the second applicant] has family in Alberta. The Tribunal also notes that the applicants stated that in order for their marriage to be recognised in Canada, they would effectively have to ‘remarry’. However, the Tribunal does not accept that the process of marriage amounts to serious or significant harm or that undertaking this process, and the applicant formally changing her name, will cause them to face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future.
The Tribunal’s findings set out in these paragraphs were all well supported by material that was before it. They were open on the material and in its reasons, the Tribunal explained why it made them.
The applicants argue that the Tribunal failed to consider that Canada had destroyed all of the first applicant’s evidence and the proof of claims in breach of the law. But the Tribunal did consider these matters. It said:
92. The Tribunal clarified with the applicant what files she believes she cannot access and what she thinks they will tell the Tribunal or how she thinks they will assist her case for protection. The applicant said that she was referring to her ‘Freedom of Information Act files’ which was the track record of her entire life and all her interactions with the government and court system as well as medical and social services files and they state the various difficulties she has had. The applicant said she had all of these files in 1997 but because she has move around since then, they have been lost. The applicant said she requested the files again in 2010 but they refused to reissue the files unless the applicant appeared in person in Vancouver to the Ministry of Children and Families. The applicant said she only had her birth certificate for identification at that time. The Tribunal noted that a logical explanation for this may have been the apparent identity fraud issue and not that the files were necessarily being denied. The applicant agreed that may be an explanation but she was not completely sure and she thought it was a trap.
93. The applicant told the Tribunal that she thought that if she had these files, it would show that she had been disclosing about her abuse since she was six years old and that she was raped by multiple men. She said it would also show that she had been talking about Robert Pickton and what she had seen and endured and that she repeated these same allegations when she was fourteen years old. The applicant also said that the transcript of her custody case would show that she talked of the ‘occult’, that she did not want her children living with her mother and step-father, that she had more professional and unbiased witnesses than her mother and step-father but that all her witnesses were ignored. The applicant also said that the judge in that case, cut off her evidence and said that no one should ever help the applicant to pursue any of the claims she made in that case. The applicant said that she could not then afford to go after her step-father for multiple rapes and she was not able to go after the Ministry or go to the media or get restitution.
94. The Tribunal noted that it would not be for this Tribunal to make any findings in relation to the judgement of another court as that is the realm of an appeal court. The Tribunal also noted that it had listed to the recording of the applicant’s phone call with the court officer in Canada in relation to her court file. In particular the Tribunal noted that the court officer said that the file was created in 1993 and that timeframes and procedures had changed over time but some files were destroyed before procedures were implemented effectively but this was not just in the applicant’s case. The Tribunal noted that while an administrative error may have occurred, it might have difficulty in accepting that this is evidence of malice or intent to harm the applicant. The applicant said that the legislation used to be that nothing was destroyed for ninety-nine years and this was a high profile case. She also said that she did not have the money to appeal because she found that the trust funds were gone and she could not get a lawyer to help her because the law society told her to go away. The Tribunal noted that it might have difficulty in accepting that this is evidence of a conspiracy or corruption given the law society exists to regulate the legal profession and it is not an arm of government. The applicant said that she tried everything and she felt that all government officials were against her.
...
129. The Tribunal notes that the applicant claims she is unable to access her files but this has not always been the case and she stated that she had “all her files and information” in 1997 and when she sought legal assistance to bring an action against the Ministry in 2000-2002 but they were lost as she moved around a lot. The applicant also acknowledged in her evidence that when she applied for her information in 2010, it was not that she was necessarily denied this information, she was told that in order to obtain it, she would need to appear in person in Vancouver but that she thought this was a ‘trap’. The Tribunal put to the applicant that this may be explained by the outstanding identity fraud issue the applicant had explained and that there was therefore no denial of information. In any case, given country information relating to information and privacy processes, the Tribunal is not satisfied that, subject to the implications of any identity fraud issue connected with the applicant, that she would be unable to obtain access to personal information she is entitled to or be unable to appeal any decision not to provide that information.
…
134. The Tribunal acknowledges that that applicant is unable to obtain the reasons for judgement in her child custody case and only has access to the court orders because all other material has been destroyed. The audio recording of the applicant’s conversation with the court officer regarding these files indicated that while the judgement was made in 1998, the matter was opened in 1993 indicating that the matter would be twenty-four years old. In addition, the officer explained that there were changes to the timeframes for the retention of files and that a number of files from 1993 were destroyed before retention procedures were implemented effectively. In the Tribunal’s view, while regrettable for the applicant that she no longer has access to the reasons for judgement, this does not establish any malice or intent to harm the applicant by this administrative error and nor does the Tribunal believe that even if the applicant had access to the reasons for judgement in her child custody case, this would have any bearing on the findings in her application for protection given that it is not for the Tribunal to find bias or conspiracy in the judgement of a court of another country but for the applicant to make that application, as was her right, in appeal of that judgement.
The complaint that the Tribunal failed to consider the first applicant’s issues regarding Robert Pickton, too, cannot be made out. The Tribunal recorded the first applicant’s claims, amongst other places in it reasons, as follows :
71. The applicant told the Tribunal that if she returned to Canada then she would have to tell authorities that she was married to [the second applicant]. The Tribunal asked the applicant why she thought this was relevant. The applicant said that ‘they’ tried to kill her ex-husband and there are ways of getting rid of people. The Tribunal noted that it might have some doubts about the real chance or the real risk of this occurring. The applicant said that so long as Robert Pickton is alive, she is in danger. The applicant claimed that she opened the case in relation to Robert Pickton in 1970 by telling the police that he was in her mother and step-father’s house.
72. The Tribunal asked the applicant why she would have anything to do with this case in the future. The applicant said that it was because it was still there, they have destroyed all the files and destroyed his file but the man did not kill some of the people they said he did and the applicant knows what he did before he got caught. The applicant said that she knows Robert Pickton was involved with children and involved with sexually abused children and her mother is involved with children all the time in her role with the Special Olympics. The applicant said that she can’t go back to Canada and let her mother continue to have access to children but if she raises any of that, they will kill her because they don’t want any of that to come out.
73. The Tribunal noted that the applicant said that she has not had any involvement in this case to-date; that she would not be involved in the case if she returns to Canada; and all the files have been destroyed so it had some difficulty in understanding how this case would impact her in the future. The applicant said that she wouldn’t be able to have a life or buy a house or a car and she would not have a reason to live.
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87. On 11 June 2017, the Tribunal received a further submission from the applicant seeking to clarify some of the evidence she provided during the Tribunal hearing. In this submission, the applicant claimed that she fears a ‘religious organisation’ involving the Hells Angels and Robert Pickton as her mother and step-father were, and continue to be, heavily involved in this organisation. The applicant’s fear is based on her having left this organisation in the early 1980’s and she stated that this is the reason she “endured many years of physical, sexual, mental and emotional abuse, and serious deformation (sic), including identity theft”. The applicant claimed it would be incredibly unsafe for her in Canada because they have not yet located and jailed all of the parties involved. The applicant fears for her life because she claims that she continues to have information about the crimes of Robert Pickton and his followers, including the Hells Angels and she fears she will be killed in order to keep her silent about the information she knows. The applicant further claims that she cannot return to Canada or the United States of America because the Hells Angels in both these countries are the same organisation and that her daughter Paulina was sexually and physically abused by members of this organisation.
88. At the second Tribunal hearing, the Tribunal noted that the applicant’s post-hearing submission seems to be suggesting that her physical, sexual, mental and emotional abuse as well as attacks on her character and identity fraud are the result of being involved in the ‘religious organisation’ whereas, previously she had claimed that her fear of returning to Canada – of persecution and ongoing harassment and denial of services – was due to her mother and step-father and the government because they didn’t want her to expose their negligence and corruption of not adequately dealing with her abuse as a child. The Tribunal noted that it was having difficulty in understanding the applicant’s claim as these two accounts appear to be inconsistent in relation to the reasons for her past harm, which could cause it to doubt the credibility of the claims and particularly as it relates to the ‘religious organisation’. The Tribunal invited the applicant to comment.
89. The applicant said that her parents were involved in the ‘occult’ for a very long time and her step-father worked for the department of transport and was involved in the hockey club so they are very connected. The applicant said that she feared that if she did not come forward with all of this information then no one would believe her about all the things in Canada. She said that because of her involvement with the ‘occult’, and her parents and their friends in positions of power, including politicians, who were also involved in this organisation, they were all biased in favour of her parents so it all ties in together.
90. The Tribunal noted that even if it accepted that the applicant was a member of a ‘religious organisation’ or cult, she claims to have left the ‘religious organisation’ in the early 1980’s; she has continuously spoken about her treatment as a child, including by her mother and step-father; and during the first Tribunal hearing, she claimed to have told the police about Robert Pickton in the 1970’s and 1980’s. On this basis, the Tribunal put to the applicant that she left the ‘religious organisation’ more than three decades ago and given the passage of such a long time, and despite her claims and accusations, she has not been killed by members of this organisation so it might find that her chance of being killed by any members of this organisation if she returns to Canada is far-fetched and remote. The Tribunal asked the applicant if she would like to comment.
91. The Tribunal asked the applicant if she would like to comment on the Tribunal’s concern regarding her chance of harm for having been a member of the cult. The applicant said that Robert Pickton published a book that was taken off the shelf and she wants to know what was in it. The applicant said that if she returns and starts poking around then they will know and they have tried to kill her before because her mother tried to kill her when she was in labour with her first child. The applicant also said that she gave a statement in relation to Robert Pickton and it was lost and if she goes back to Canada it will wake up all these people. She said that she was dating someone in the Hells Angels and he was told to stay away from her because she has information about the Hells Angels and Robert Pickton and Robert Pickton was looking for people that could help him. [the second applicant] said that he did not have anything to help the applicant.
92. The Tribunal clarified with the applicant what files she believes she cannot access and what she thinks they will tell the Tribunal or how she thinks they will assist her case for protection. The applicant said that she was referring to her ‘Freedom of Information Act files’ which was the track record of her entire life and all her interactions with the government and court system as well as medical and social services files and they state the various difficulties she has had. The applicant said she had all of these files in 1997 but because she has move around since then, they have been lost. The applicant said she requested the files again in 2010 but they refused to reissue the files unless the applicant appeared in person in Vancouver to the Ministry of Children and Families. The applicant said she only had her birth certificate for identification at that time. The Tribunal noted that a logical explanation for this may have been the apparent identity fraud issue and not that the files were necessarily being denied. The applicant agreed that may be an explanation but she was not completely sure and she thought it was a trap.
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110. The applicant’s claims relate to a fear of harm from her mother and step-father, a ‘religious organisation’ associated with the Hells Angels and Robert Pickton (that the applicant claims her mother and step-father are involved with), as well as a number of government departments and agencies. [the second applicant] did not present any claims in his protection visa application but the Tribunal notes that at the Tribunal hearings, both applicants claimed that they feared [the second applicant] may be harmed by the same sources the applicant fears if he returns to Canada due to his association with the applicant.
About these claims, the Tribunal concluded as follows:
135. While the Tribunal is prepared to accept that the applicant was a member of a ‘religious organisation’ until the early 1980’s that involved her mother and step-father, the Hells Angels and Robert Pickton, the Tribunal does not accept that the applicant will be killed or harmed by members of this organisation or anyone associated with this organisation. The applicant also told the Tribunal that she has consistently raised these issues over many, many years to all government agencies and politicians and the applicant has not been killed. Similarly, the Tribunal finds that the applicant left the ‘religious organisation’ more than three decades ago and despite her history of speaking about her treatment as a child within this organisation, including in relation to Robert Pickton’s involvement and activities, she has not been harmed and her chance of being killed by any members of this organisation (including the Hells Angels) if she returns to Canada is remote. The Tribunal finds this claim far-fetched and does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future if she returns to Canada due to her former involvement with this organisation.
The complaint that the Tribunal failed to consider the unlawful dismissal of the second applicant must also fail. The Tribunal plainly considered that matter, but not in the way in which the applicant had hoped:
120. The Tribunal does not accept that there is a conspiracy against the applicant, largely because this has not been borne out given the applicant has been able to obtain welfare, medical assistance, a passport, get married, get divorced, set up a business and travel in the past. The applicant was also successful in her child support case in 1992, in obtaining temporary custody of her eldest child, successful in an unfair dismissal case and gained visitation rights with her two eldest children and custody of her third child by a court ruling. This indicates to the Tribunal that the applicant’s interaction with authority and government agencies has not always been negative.
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145. The Tribunal also notes that the applicant was successful in an unfair dismissal case which indicates to the Tribunal that the applicant is able to avail herself of mechanisms to ensure she is not dismissed unfairly. On this basis, the Tribunal places no weight on the claim that the applicant lost jobs due to anonymous phone calls made by her mother and step-father or anyone they know and therefore, the Tribunal is not satisfied that the applicant will be unable to secure employment if she returns to Canada due to anonymous phone calls. As noted above, the Tribunal also acknowledges the adaptability and resourcefulness of the applicants in their relocation to Australia and in the applicant’s case, her ability to set up and grow a successful business. The applicant also told the Tribunal that she has experience setting up and running a music magazine publishing business in Canada and the Tribunal sees no reason why the applicant could not return to Canada and again set up her own business.
Failure to consider hardship and compassionate circumstances
Application, grounds 1, 5, 11, 12, 14, 15; Affidavit of the first applicant filed 5 September 2017, [1], [1A], [2A], [5], [11], [12], [14], [15]; Affidavit of the first applicant filed 28 September 2017, [20], [22]; Amended application, grounds 4, 5; Affidavit of the first applicant filed 24 January 2018, [4], [5]
As the first respondent submits, these matters do not appear to be complaints about a failure to consider claims for protection made by the applicants. Rather, they reflect an appeal to the Tribunal to consider the hardship they consider they would face if returned to Canada and their ‘compassionate circumstances’ which should have influenced the decision to grant them protection visas. These matters included that they had ‘migrated deeply into Australia’; that removing the first applicant from Australia would be a great hardship at her age; and they had spent time building a business or fixing their lives.
But these were not matters that the Tribunal could consider in its assessment as to whether Australia owed the applicants protection obligations in accordance with ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Act). These matters reveal no jurisdictional error.
Failure to postpone the first hearing to allow the applicants to obtain further material
Amended application, ground 1; Affidavit of the first applicant filed 24 January 2018, [1]
This ground is capable of demonstrating jurisdictional error depending upon the facts of the case: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
On 28 April 2017, the Tribunal invited the applicants to attend the first hearing. On or about 4 May, 2017 the applicants requested that the hearing be postponed for at least 30 days to enable the first applicant to obtain further documents from Canada. However, on 8 May, 2017 the Tribunal refused the applicant’s request for an adjournment. Concerning this request for an adjournment, in its reasons for decision the Tribunal said:
23. The Tribunal notes that on 4 May 2017, the applicant requested a postponement of the hearing date for at least a period of 30 days so that she may obtain further documents from Canada. The Tribunal considered the request but decided not to grant the applicant a postponement of the hearing on the basis that it had been than two years since the applicant lodged her protection visa application and more than one year since she lodged her application for review and the Tribunal provided the applicants with more than five weeks’ notice of the hearing. The Tribunal discussed with the applicant the documents she was seeking from Canada and their relevance to her claims as outlined below.
The matters recorded by the Tribunal were factually correct. There is nothing legally unreasonable about the Tribunal’s approach to the applicants’ request for an adjournment in my view.
In any event, the applicants do not demonstrate what further documents they would have secured from Canada if permitted more time. It is highly likely that there would have been no further documents produced given that a central plank of the first applicant’s argument was that most of the documents that she had sought to access over the years had been lost, destroyed or deliberately withheld from her.
Further, on any view of the fats of this case, the applicants were given a reasonable opportunity to give evidence and present their arguments. The documentation the applicants intended to obtain were court files from June 1998, media files and a professional report of a private investigator’s findings from 1996 onwards. Her request was in the following terms:
I respectfully ask for an extension of hearing for at least 30 days.
I have all documentation except last 4 Documents in hand to prove relevance in my case.
These Documents are currently being obtained from a private investigator in Canada whom has had much issues in obtaining them in a timely manner.
The documents are very pertinent to this matter.
1) Court Files from June 1998, proving claims of judicial persecution
2) Media Files
3) Professional Report of the Private investigators findings from 1996 — current situations whereas providing information of government bodies, and others continued persecution of my existence.
After the Tribunal declined the postponement and before the first hearing, the applicants provided the Tribunal with further documentation, including evidence that the first applicant’s court files from June 1998 had been destroyed, copies of media reports obtained on 19 May, 2017 and copies of two documents by Patricia McLaughlin a private investigator and “Supervised Child Access Facilitator” retained by the applicants for the purpose of supervising access between the first applicant and her children in Canada in 1998.
The applicants were given the opportunity to discuss the documentation they had intended to obtain at the first hearing. After the first hearing, the applicants again provided the Tribunal with further statements with references to additional information in support of their applications. The applicants also attended the second hearing on 12 July, 2017 to give further evidence (i.e. a week after the date to which they had requested the first hearing be postponed).
I accept the first respondent’s argument that there is no substance to any argument that the first applicant was denied procedural fairness by reason of the Tribunal’s decision to decline her request that the first hearing be postponed by 30 days. There is no jurisdictional error revealed by these arguments.
Failure to contact witnesses as requested by the applicants
Affidavit of the first applicant filed 28 September 2017, [33]; Amended application, ground 2; Affidavit of the first applicant filed 24 January 2018, [2]
In response to the Tribunal’s invitation to attend the first hearing the applicants requested the Tribunal take evidence from Patricia McLaughlin and Donald Frank Corneau. Ms McLaughlin is the private investigator I have referred to above. Mr Corneau is described by the first applicant as her ex-partner. However, the Tribunal did not contact either of those witnesses.
Section 426(2) and 426(3) of the Act provide:
426 Applicant may request Tribunal to call witnesses
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.
The Tribunal is not obliged to contact witnesses. But it is obliged to give proper consideration to the applicants’ request: Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304. And that is what the Tribunal did in this case. It considered the evidence that the applicants thought would be given by the witnesses and compared that to what was already before the Tribunal. The Tribunal considered that the written evidence already given by the witnesses was sufficient. It had statements for each of them. Indeed, the first applicant’s evidence is that the tribunal member said words to the effect of, “if it’s in the letters, I don’t need to call them”.
The Tribunal’s reasons record that the Tribunal discussed Mr Corneau’s evidence with the applicants and the first applicant reiterated that the Tribunal could “talk to” Mr Corneau.
In the response to the hearing invitation in respect of the second hearing, the applicants did not repeat their request for the Tribunal to call Ms McLaughlin or Mr Corneau. That suggests that they were satisfied with the Tribunal’s approach to the evidence from these witnesses. However, even if that is not so, the failure by the Tribunal to call them does not reveal jurisdictional error. The applicants do not suggest that either witness would have given evidence beyond that which was contained in their statements and letters.
Failure to make inquiries
Affidavit of the first applicant filed 28 September 2017, [25], [26], [50], [51]; Affidavit of the first applicant filed 24 January 2018, [9]
By these complaints, the applicants allege that the Tribunal failed to consider or make inquiries to obtain the first applicant’s personal information and medical files held in Canada. However, these grounds cannot succeed because the circumstances were not apt to engage the Tribunal’s obligation to make an obvious inquiry in relation to a critical fact, the existence of which was easily ascertained (cf. Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, [25]-[26]).
It was for the applicants to make out their case before the Tribunal. If they wished the Tribunal to consider any further material from Canada, the obligation was on them to provide such information. The Tribunal had no duty to investigate or consider investigating the applicants’ claims: VCAK of 2002 v Minister for Immigration and Multicultural Affairs [2004] FCA 459, [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277, [21], [24]-[25].
Whilst the Tribunal considered the applicants’ request, the Tribunal thought it was unclear from its discussions with the first applicant just exactly what information it was being requested to seek in circumstances where both the first applicant and a private investigator had been unsuccessful in obtaining the information. The Tribunal could not see how it would achieve a different outcome:
24. The Tribunal notes that the applicant provided the Tribunal with authority to gain access to personal information held in Canada about her. The applicants asked the Tribunal about its access to this information during the first Tribunal hearing and they noted that there may be a cost associated with obtaining these files and they were concerned about Canada then knowing where the applicant is. While it is unclear to the Tribunal exactly what information it was being requested to seek, as the Tribunal explained to the applicants, if the applicant has sought to obtain all necessary personal information from Canada that she believes is relevant to her protection visa application and the Tribunal review, but has been unsuccessful, and she has had a private investigator attempt to obtain the same and she has also been unsuccessful, then the Tribunal cannot see how it would achieve a different outcome by attempting to seek this information with the applicant’s permission. In any case, the Tribunal also provided the applicant with additional time following the Tribunal hearing to provide further information.
In my view, this ground reveals no error.
Failure to record the first applicant’s anxiety attacks or mental health when giving evidence
Application, grounds 13, 17; Affidavit of the first applicant filed 5 September 2017, [13], [18]; Affidavit of the first applicant filed 28 September 2017, [48]; Amended application, ground 10; Affidavit of the first applicant filed 24 January 2018, [10]
The Tribunal referred to and considered the psychological reports provided by the first applicant about her mental health and it considered her capacity to appear at each hearing. I have set those paragraphs out above at [31] and [32]. To the extent that the applicants complain that the Tribunal failed to record these matters, the submission cannot succeed.
In any event, it is necessary to do more than assert that the Tribunal failed to record those matters. The psychological reports provided by the first applicant about her mental health were, I think, suggested to be relevant to:
a)a general assessment about the fairness of granting a protection visa to the applicant;
b)the proposition that the first applicant would suffer harm should she return to Canada by reason of the effect of the fact of her return on her mental health; and
c)perhaps, a suggestion that she was not capable to give a consistent account of her experiences, to present arguments in support of her claims and to understand and to respond to questions put to her. That is to say, the conduct of the review miscarried.
As to the first matter, that is plainly not something which was of concern to the Tribunal. Section 65 of the Migration Act sets out the circumstances in which a visa must be granted. Generally speaking fulfilment of the necessary criteria is the only requirement. A general assessment about the fairness of granting a protection visa in the circumstances of the case is not a criterion prescribed for the grant of a protection visa.
Proof of the third matter relies upon evidence adduced in this court which would support a finding that the first applicant’s condition was such as to deny her the capacity to give a consistent account of her experiences, to present arguments in support of her claims and to understand and to respond to questions put to her. There is no evidence before me to that effect. The Tribunal considered the evidence before it about the applicant’s mental health and took steps to satisfy itself that the first applicant was able to proceed. As the first respondent points out, the hearing required by s.425 of the Act is not nullified by a mere failure by an applicant to present his or her case in the best possible light: Minister for Immigration and Citizenship v SZNVW (above) at [20].
These arguments do not reveal jurisdictional error.
Bias and discrimination
Application, ground 2, 10; Affidavit of the first applicant filed 5 September 2017, [2], [10]; Affidavit of the first applicant filed 28 September 2017, [21]; Amended application, ground 11; Affidavit of the first applicant filed 24 January 2018, [11], pages 7-9
The applicants assert that the second respondent was biased against the first applicant. They point to the second respondent’s statements that the first applicant’s claims seemed ‘far-fetched’, that the second respondent had or may have ‘trouble believing’ the first applicant and that she needed to ‘go back and fix your life’. The applicants submit that the overall tone of the second respondent was derogatory. The earlier iterations of the application for review complained that the first applicant was discriminated against because she was a Canadian with a valid protection claim. A similar complaint is made on pages 7, 8 and 9 of the affidavit of the first applicant filed 24 January, 2018. It is trite that bias is a serious allegation which must be clearly made and distinctly proved.
To establish apprehended bias, the applicants need to show that a fair-minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the decision-maker might not bring an impartial mind to the application: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Concrete Pty Limited v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283. Further, to establish actual bias, the applicants need to show that the Tribunal was so committed to a conclusion already formed that it was incapable of alteration, whatever evidence or arguments may be presented. There is no evidence before the court capable of sustaining any such allegation: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [72]; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.
The first two examples of bias raised by the applicants misunderstand the role of the Tribunal. In considering whether the applicants’ claims to fear persecution were wellfounded, the Tribunal was required to turn its mind to whether there was a real chance of persecution, such that a ‘far-fetched’ possibility of persecution was excluded. The Tribunal uses the language of the authorities in this area of the law. There is nothing remarkable about the terms that he Tribunal chose to use.
The task of the Tribunal is to find the facts. That will often require the Tribunal to form a view about the credit of the applicant and the reliability of the material put before the Tribunal by the applicant. An assessment of those matters is an integral part of the Tribunal’s core function to hold a review.
There is nothing remarkable about the way the Tribunal went about its task in this case and in particular the way in which it went about assessing the applicants’ credit worthiness. The Tribunal put the applicants on notice that it had doubts about the truth of the applicants’ claims so that they had the opportunity to comment or make submissions. For example, in its reasons for decision the Tribunal records:
51. Based on this information, the Tribunal suggested that it might have difficulty in accepting that the RCMP or other government agencies will kill the applicant if she returns to Canada. The Tribunal noted that it needed to assess whether there was real chance of harm and it could not identify that there was a specific threat of harm. Country information indicates that there are a range of processes available to report any concerning conduct by government officials and even if the applicant did pursue legal action against the state in returning to Canada, there are a range of mechanisms and independent bodies within the Canadian system to allow her to do so. The Tribunal invited the applicants to comment.
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54. The Tribunal noted that in light of the country information relating to privacy legislation and processes in the event that someone accesses information they are not entitled to, it might have some difficulty in accepting that police officers or others would routinely access this information in order to ‘track her down’. The applicant said that her step-father works for the Province of BC so he has had access to her social insurance number since she was four years old and they are connected to officers in the RCMP and they do still access things and she is not sure whether they ever get found out. [the second applicant] also said that detectives can access things and corruption happens everywhere. The applicant acknowledged that legally, there are processes to deal with these things but she has written to the Prime Minister and many others and they all tell her she is crazy and they refused to listen. [the second applicant] noted that the fact that Australia offers protection to Canadians means that they must see that Canada is not perfect.
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60. The Tribunal noted that it might have some doubts about the applicant’s family knowing when she returns to Canada, that they would be motivated to seek her out when they haven’t spoken in quite some time; or that it was plausible that they would be able to track her down. The Tribunal also noted that if anyone did access information they were not entitled to then there are processes to deal with that. The applicant said that as soon as she gets a driver’s licence they would find her and that she could not rectify her issues because they had destroyed all her files. She said that if she and her husband return to Canada and try to seek assistance, the flags will be raised about her identity and they will not get any help and this will be across all of Canada.
61. The Tribunal noted that it would have difficulty in accepting that the ‘flags’ will say not to help the applicant because country information outlines a range of services available to citizens but there is a need to be eligible. The Tribunal also noted that if the applicant is not satisfied with a decision, she can appeal that decision. The applicant said that it would cost. [the second applicant] also said that it costs lots of money to fix the applicant’s identity and then they will find out that the applicant exists and they will fix it up or get rid of her.
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68. The Tribunal also noted that the applicant had been able to obtain a passport and travel in and out of Canada given she indicated she had been to the USA in 2009 for a songwriters competition and again to the USA and Mexico with [the second applicant] in March-April 2013. The Tribunal noted that given this travel was during the period of concern for the applicant, it could cause the Tribunal to doubt that the applicant feared serious or significant harm in Canada given she continued to return there. [the second applicant] told the Tribunal that the travel was before trying to obtain the applicant’s drivers licence and getting her tax return. It was only when she started looking into travelling with [the second applicant] that they knew she exists and then she got different threatening phone calls. He said he did not know all of the applicant’s history.
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74. The Tribunal noted that the applicants did not lodge a protection visa until eighteen months after they arrived in Australia and noted that delays can cause the Tribunal to doubt the credibility of the claims being made. [the second applicant] said that at that time, they were not so much in fear of their lives as he thought they could handle it and it would be better not to get another government involved. The applicant said that the last thing she wanted to do was to raise her history with another government and they did not know that protection visas existed until they found out they would have to return to Canada. The applicant said that they looked at any other ways they could stay in Australia and if there was another way, they would have done it but they expected that [the second applicant] would be able to get a job and they would have a happy life.
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77. The Tribunal noted that the applicant had provided a letter from her former psychologist in Canada, Lillian Kelly dated 28 January 2016 which is set out on letterhead and another ‘email’ from Ms Kelly two days later that was in a different font, not in an actual email and in a tone that is inconsistent with the first letter. The Tribunal explained that it might have some doubts about the second correspondence of 30 January 2017 and its credibility and it would need to consider what weight to place on that evidence. The applicant said that the email states that Ms Kelly is afraid to help the applicant and that is why it is different but that it was a genuine email and the first correspondence was a letter which came to her house. The Tribunal asked the applicant to submit the original email from Ms Kelly.
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78. The Tribunal also noted that it would need to consider what weight to place on Mr Corneau’s evidence that he was told that a government department was out to get the applicant and the ability to raise those kinds of accusations with authorities. The applicant said that Mr Corneau told her that is what BC Benefits told him but she did not know about this as she was not there. The applicant said the Tribunal could talk to Mr Corneau.
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95. The applicant told the Tribunal that she can’t get welfare if she returns to Canada. The Tribunal noted that it seems apparent from the evidence of both applicants that there is an outstanding identity fraud and/or government debt issue that the applicant would need to address in returning to Canada and asked the applicant what she thinks she would need to deal with in this regard on return to Canada. The applicant said she did not have a debt because she could not find out any information about the debt. She said that her ex-husband bankrupted them but she did not think this was relevant. The applicant then said that if she returns to Canada, she will have nowhere to go and if she tries to get any help, she will lose her husband. She also said she will not get justice for the rapes and when she opens her mouth to try to deal with this, she will have someone on her doorstep threatening her. The Tribunal noted that it might find it somewhat far-fetched that she will have someone on her doorstep threatening her if she tries to deal with the identity fraud or debt issue. The applicant said she will not get justice for what happened with her children and she fears for her children. The applicant said that just by digging around about this it will set off time bombs. Nobody will help her because she has been labelled.
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102. The Tribunal referred to the statement from Mr Corneau, particularly his reference to the threatening phone call from the BC Benefits office and the Tribunal noted that the applicant has consistently said that the threatening phone call came from Ministry of Children and Families. The Tribunal noted that it had previously raised its concern regarding the credibility or plausibility of this claim but given this inconsistency, this may further cause the Tribunal to doubt the credibility of the claim. The Tribunal invited the applicant to comment. The applicant said that she recalled the person saying they were a ‘Ministry lawyer’ so it was possible that she thought everything was to do with the Ministry of Children and Families but she suggested the Tribunal take Mr Corneau’s statement over her account as he might be more accurate. The Tribunal noted that the applicant had previously outlined that BC Benefits had said that they knew nothing about it and it was not them. The applicant said there was never anything on paper or anything about how much she owed. The Tribunal also noted that [the second applicant] stated that he was on this phone call as well and asked [the second applicant] if he could recall who the call was made by. [The second applicant] said that he only heard the threats but he was not on the call when they said where they were from.
There are many more examples.
The applicants argue that the Tribunal remarked to the first applicant that she needed to “go back and fix your life”. I accept that was said to the first applicant, but I do not accept that it was evidence of actual or apprehended bias. I do not accept that the Tribunal member’s overall tone was derogatory. There is no evidence to demonstrate that. But even if it was, the decision record contains no hint of actual or apprehended bias. The Tribunal’s reasons for decision demonstrate a careful and thorough engagement by the Tribunal with each of the many claims made by the first and second applicant’s and a proper engagement with the material that they chose to put before the tribunal.
In respect of the applicants’ assertion that the Tribunal was biased or discriminated against them because they were Canadian, I agree with the first respondent’s submissions that there is no material to support such a serious allegation. On the face of the record, it must fail. The Tribunal properly set out the legal tests with respect to the refugee criterion and the complementary protection criterion that it had to apply. It applied these tests correctly when assessing the applicants’ claims.
These complaints by the applicants are no more than complaints about the merits of the Tribunal’s decision.
Failure to consider Human Rights and Migration Racial Act 1985
Amended application, grounds 12, 13; Affidavit of the first applicant filed 24 January 2018, [11]
The applicants argue that the second respondent failed to take into consideration the “Human Rights and Migration Act 1985: Appendix 111 Report number 7 of the act (9 Section 1-10)” when relying on country information. This is a reference to Appendix III of the Human Rights Commission’s 1985 report titled Human Rights and the Migration Act 1958, and perhaps a reference to ss.9 & 10 of the Racial Discrimination Act 1975.
The applicants argue that the Tribunal discriminated against them because they were Canadian. But there is no evidence to support that argument. However, the Tribunal’s reasons demonstrate that the applicants’ claims were given appropriate and proper consideration and were assessed against the proper country of reference, namely Canada. The Tribunal said (citations omitted):
50. The Tribunal explained to the applicants that even if it accepted that the applicant has been a victim of injustices or unfairness or negligence in the past, the Tribunal must assess whether there is a real chance they will suffer serious or significant harm in the future. The Tribunal referred to country information for Canada which indicates that Canada is a fully functioning democracy that operates in accordance with the rule of law. Country information indicates that there is an effective police force and judicial system and a range of other independent mechanisms of oversight of government, including independent human rights commissions and committees, federal and provincial ombudsmen as well as federal and provincial legislation and processes relating to freedom of information and privacy and the ability to review or appeal administrative and judicial decisions. The Tribunal noted that country information indicates that Canada has a tradition of intolerance toward corrupt acts by government officials, reputation for clean government and vigorous prosecution of corruption cases. Canadian law provides criminal penalties for corruption by officials and the government generally implemented the law effectively. Federally there is also transparency and accountability in government and a commissioner for public sector reviews which investigates disclosure of wrongdoing and reprisal complaints. In relation to identity fraud and theft, the Tribunal noted that the RCMP provides a procedure outlined in the Identity Theft and Identity Fraud Victim Assistance Guide, for dealing with this. The Tribunal also noted that the applicant had successfully accessed a number of government services in the past and she had also been successful in judicial and other processes.
The Tribunal accepted that the applicants were from Canada and assessed their claims accordingly.
These arguments do not reveal any error on the part of the Tribunal.
Failure to apply the relevant test
Application, ground 16; Affidavit of the first applicant filed 5 September 2017, [17]; Affidavit of the first applicant filed 28 September 2017, [21]; Amended application, ground 14; Affidavit of the first applicant filed 24 January 2018, page 7
The applicants argue that the Tribunal failed to consider the ‘real fear’ held by the first applicant and that it failed to accept the first applicant’s had a well-founded fear of persecution. However, the Tribunal’s reasons make it clear that it instructed itself correctly as to the law, both respect to the refugee criterion and the complementary protection criterion.
The Tribunal accepted that the first applicant had a subjective fear of a number of matters. This forms one aspect of the applicants’ complaint with the Tribunal’s decision. The Tribunal said:
116. As noted above, the Tribunal has carefully considered all of the applicants’ evidence and while new claims were articulated by the applicants during the Tribunal hearings (for example, that [the second applicant] will be killed if he returns to Canada, the applicant was raped at gunpoint by a police officer and that members of a ‘religious organisation’ the applicant was involved with in the 1980’s will kill the applicant if she returns to Canada), the applicant was generally consistent in evidence and the Tribunal is prepared to give the applicants the benefit of the doubt. Therefore, for the purposes of this review, the Tribunal is prepared to accept the following:
·The applicant has three children who are all Canadian citizens and the youngest child is in her early twenties living in Canada.
·The applicant is married to a Canadian citizen and they have an ongoing relationship.
·The applicant and her husband lodged applications for work visas in Australia but their applications were unsuccessful.
·The applicant was the victim of child sexual abuse and she has two children with her biological father.
·The applicant lost custody of her two eldest children in 1998 following a court decision.
·The applicant was not satisfied with the decision in her child custody case and believes she was treated unfairly by the judicial process both during the trial and subsequently.
·The applicant was jailed during her custody trial for contempt of court.
·The applicant made sexual assault allegations against her mother, step-father and half-brother.
·The applicant made sexual assault allegations against her mother and step-father on behalf of her two eldest children and that the police lost some of the material that the applicant claimed was evidence of that abuse.
·The applicant has a subjective fear that a number of authorities and agencies of government are against her and deny her access to services.
·The applicant has a subjective fear of her mother and step-father and she believes they have influential connections across Canada and through these connections, she believes her mother and step-father have prevented and will continue to prevent the applicant from living a full life.
·The applicant has an acrimonious relationship with her family and they may have done some things to undermine her.
·The applicant has been the victim of identity fraud following a fake death certificate being used to obtain funds held in trust in her name.
·The applicant is unable to obtain files or documents associated with her child custody case other than the court orders.
·The applicant was involved in a ‘religious organisation’ with her mother and step- father that included Canadian identities such as Robert Pickton and the Hells Angels until she left the organisation in the early 1980’s.
·The applicant has been able to obtain welfare, medical assistance, a passport, get married, get divorced, set up a business and travel in the past. The applicant was also successful in her child support case in 1992, in obtaining temporary custody of her eldest child, successful in an unfair dismissal case and gained visitation rights with her two eldest children and custody of her third child by a court ruling.
Despite these findings, the Tribunal was not satisfied that the first or second applicants had a well-founded fear of persecution. The Tribunal concluded that the first applicant’s subjective fear was not well-founded because the Tribunal did not accept that:
a)there was a government conspiracy (involving any government department or agency or the Royal Canadian Mounted Police) against the applicant to harm her or prevent her from accessing information or services;
b)that members of a ‘religious organisation’ involving the applicant’s mother and step-father, the Hells Angels and Robert Pickton will harm or kill the applicants in the reasonably foreseeable future;
c)that either of the applicants face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future from the applicant’s mother and step-father, if they address the applicant’s identity fraud or government debt issue or pursue a claim of negligence against the state.
d)over more than three decades, the failure of Canadian government agencies and authorities to protect the applicant as a child, the subsequent judicial process involving her two eldest children or the various negative interactions the applicant has had with government agencies amounts to a conspiracy involving the applicant’s mother and step-father and extending across various provincial and federal government departments and agencies to deprive either of the applicants of their lives or livelihoods;
e)government agencies or authorities have followed the applicant, threatened to destroy her life or livelihood, unreasonably denied her access to services or that they will kill either of the applicants if they return to Canada;
f)there is a conspiracy against the applicant, because the applicant has been able to obtain welfare, medical assistance, a passport, get married, get divorced, set up a business and travel in the past. The applicant was also successful in her child support case in 1992, in obtaining temporary custody of her eldest child, successful in an unfair dismissal case and gained visitation rights with her two eldest children and custody of her third child by a court ruling;
g)any government department, agency (including the RCMP) or public servant has harmed the applicant or has any motivation to kill the applicant because she was a victim of child sexual abuse in the past and/or because she might expose historic corruption by officials in Canada;
h)the applicant faced a real chance of serious harm or a real risk of significant harm if she returned to Canada in the reasonably foreseeable future because she was a victim of child sexual abuse;
i)the applicant will not be able to secure employment upon return to Canada.
The Tribunal explained these matters and its approach to them in detail in [118] – [149] of its reasons for decision.
The Tribunal acknowledge that the first applicant had a subjective fear of her mother and step-father. However, it considered that given the applicant’s mother and step-father reside in British Columbia, the applicants could return to Alberta where they were living prior to their arrival in Australia, or perhaps on any other province they chose. The Tribunal considered that the applicants had demonstrated that they were resourceful and adaptable in moving to Australia and setting up businesses and finding housing and employment.
The Tribunal did not accept the applicant’s reasons for why she could not return to Canada given that her reasons largely related to her ability to access services and assistance. In the absence of an acceptance by the Tribunal of the first applicant’s claim that there was a government conspiracy against the first applicant, the Tribunal found that subject to eligibility and addressing the identity fraud issue and settling an outstanding debt the applicant may have, there was no reason why the applicants would be denied access to the services to which they were entitled. In fact, the first applicant’s evidence was that she was able to access health care and find housing and employment when she lived in Alberta.
The Tribunal was satisfied that Canada is a fully functioning democracy that operates in accordance with the rule of law; that there is an effective police force and judicial system and a range of other independent mechanisms of oversight of government, including independent human rights commissions and committees and federal and provincial ombudsmen with which the applicant might raise her concerns. The Tribunal took note of country information that recorded that civilian authorities in Canada maintain effective control over the RCMP and provincial and municipal police forces and the government has effective mechanisms to investigate and punish abuse and corruption.
The Tribunal did not accept that the first applicant faced a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future if she was to return to Canada. On that basis, the Tribunal was not satisfied that the second applicant faced a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future due to his association with the applicant. The Tribunal concluded that the applicants’ subject fears were not well-founded and that neither applicant was a refugee for the purposes of s.5J of the Act
The Tribunal’s reasons demonstrate a thorough consideration of all of the matters raised by the Tribunal and, in my view, a correct application of the test set out in the Migration act. The applicants’ reasons do not reveal jurisdictional error.
Failure to follow the first respondent’s decision in respect of section 5J
Application, ground 18 Amended application; ground 15 Affidavit of the first applicant filed 24 January 2018, pages 7-8
The applicants contend that the first respondent initially accepted the first applicant’s well-founded fear of persecution. In that respect, the delegate’s decision reveals that the first respondent’s delegate accepted many of the first applicant’s factual claims, just as the Tribunal did. They argue that given the findings by the delegate the Tribunal fell into jurisdictional error by failing to use those findings to determine that the applicants were within the definition of refugee in s.5J of the Act.
However, there are two difficulties with this argument. First, the Tribunal was considering the matter afresh and was obliged to make its own findings on the claims and facts advanced by the applicants. Second, as the first respondent points out, the applicants’ arguments misunderstand the delegate’s conclusions and in particular those findings recorded at pages 134, 135 and 140 of the Court Book which were specifically relied upon by the applicants before me. The delegate did not accept that the first applicant had a well-founded fear of persecution, only that the first applicant had a subjective fear of persecution for a relevant reason and that the persecution she feared rose to the level of serious harm. Similarly, the Tribunal accepted that the first applicant had a subjective fear of persecution. But neither the delegate nor the Tribunal accepted that the first applicant’s fears in this respect were well-founded.
In the circumstances, I am satisfied that there is no jurisdictional error revealed by the Tribunal’s reasons.
Errors in the decision record
Affidavit of the first applicant filed 28 September 2017, [39]-[47]; Amended application, ground 16; Affidavit of the first applicant filed 24 January 2018, page 8
In the affidavit of the first applicant filed 28 September, 2017 the applicants complain that the Tribunal made several comments in error. The first respondent submits that these grounds indicate no more than disagreement with the Tribunal’s decision and amount to an attempt at impermissible merits review. I accept that submission.
Further, in the amended application and affidavit of the first applicant filed 24 January, 2018 the applicants contend that the Tribunal has wrongly recorded a birthdate. It is not clear which applicant is being referred to in this respect nor where this error occurred. In any event, the applicants have not identified how this error is said to be one going to the Tribunal’s jurisdiction. This ground must fail.
Reliance on outdated country information
Affidavit of the first applicant filed 28 September 2017, [18], [49] Affidavit of the first applicant filed 24 January 2018, paragraph on page 8
In her affidavit filed 24 January, 2018 the first applicant complains that the Tribunal relied on “outdated” country information from 2016 and earlier, without “investigating” the current situation. It is a matter for the Tribunal as to what evidence it obtains. It is also well established that the choice of, and weight given to country information is a matter for the Tribunal.
There is no jurisdictional error revealed by this complaint.
Miscellaneous matters
To the extent that the applicants complain about the failure to consider material provided on 14 August 2017, this material was not before the Tribunal when it made its decision on 1 August 2017 and cannot have been considered in this respect. No error arises.
To the extent that the grounds or complaints impugn the delegate’s decision or the failure to refer the matters for first respondent’s intervention, those decisions are not reviewable: sections 474(7) and 476(2) of the Act.
This is also not the appropriate forum to make a complaint regarding the Tribunal’s alleged failure to return original documents to the applicants under freedom of information legislation (particularly in circumstances where the current application for judicial review is on foot) or its failure to follow up on the first applicant’s medical assessment.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error. The application must be dismissed with costs.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Date: 12 July 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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