DZG17 v Minister for Immigration and Border Protection
[2019] FCA 8
•11 January 2019
FEDERAL COURT OF AUSTRALIA
DZG17 v Minister for Immigration and Border Protection [2019] FCA 8
Appeal from: DZG17 & Anor v Minister for Immigration & Anor [2018] FCCA 1829 File number(s): QUD 514 of 2018 Judge(s): GREENWOOD J Date of judgment: 11 January 2019 Catchwords: MIGRATION – consideration of an interlocutory application for leave to rely upon particular documents and oral evidence on the hearing of an appeal Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 5L 36(2)(a), 36(2)(aa) Date of hearing: 31 October 2018 Date of last submissions: 31 October 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 40 Counsel for the Applicants: Applicants appeared in person Counsel for the First Respondent: Ms Susan Forder Solicitor for the First Respondent: Sparke Helmore, Lawyers ORDERS
QUD 514 of 2018 BETWEEN: DZG17
First Applicant
DZH17
Second Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
11 JANUARY 2019
THE COURT ORDERS THAT:
1.The interlocutory application filed 21 August 2018 is dismissed.
2.Costs are reserved.
3.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published electronically from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
These reasons are concerned with an interlocutory application in the appeal, made by the appellants (DZG17, the female appellant and DZH17, the male appellant, both citizens of Canada) to adduce a range of documents and some oral evidence on the hearing of the appeal in support of the grounds of appeal.
The documents the appellants seek to rely upon, and the witnesses they seek to call to give evidence in the appeal, are these:
(1)DZG17’s Canadian Freedom of Information files;
(2)DZG17’s Californian USA Freedom of Information files;
(3)DZG17’s Canadian British Columbia Supreme Court Reasons for Judgment of 1998;
(4)DZH17’s Unfair Dismissal paperwork;
(5)DZH17’s Skilled Assessment from the Computer Society of Australia
(6)character letters on behalf of DZG17’s business clients and employees;
(7)emails of Lillian Kelly;
(8)a social media text from a family member of DZG17;
(9)two witnesses, Mr Donald Corneau and Ms Patricia McLaughlin to give evidence in the appeal by telephone or videoconference;
(10)current reports by a medical practitioner and a psychologist in relation to DZG17;
(11)evidence from psychologist Ms Anne Moorhouse on behalf of DZG17.
The appellants also seek an order directed to the Minister (and another) to produce Freedom of Information files in relation to DZG17 originally sought by her in September 2017.
The appellants are self‑represented in these proceedings and in the appeal as they were before the Administrative Appeals Tribunal (the “Tribunal”) and the Federal Circuit Court of Australia.
The interlocutory application is opposed by the first respondent, the Minister for Immigration and Border Protection (the “Minister”).
In the principal proceeding before the Federal Circuit Court of Australia (DZG17 and Another v Minister for Immigration and Another [2018] FCCA 1829), the primary judge dismissed the appellants’ amended application of 24 January 2018 for judicial review of a decision of the Tribunal of 1 August 2017 by which the Tribunal had affirmed a decision of the Minister’s delegate not to grant each of the appellants a protection visa.
The appellants had sought a protection visa under s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”). Although these statutory provisions are well understood, it should be noted if only because the appellants are self‑represented, that s 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant is a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. Relevantly for the purposes of these proceedings, a person is a refugee (if the person has a nationality), in this case Canadian nationality, and the person is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s 5J(1). As to the statutory notion of a “well‑founded fear of persecution”, s 5J(1) of the Act provides, relevantly, that a particular person has a well‑founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (s 5J(1)(a)); and there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of those five reasons; and the real chance of persecution relates to all areas of a receiving country. Section 5J(2) of the Act provides that a person does not have a well‑founded fear of persecution if effective protection measures are available to the person in the receiving country. The statutory notion of effective protection measures is elaborated in s 5LA of the Act. It is not presently necessary to examine the elements of s 5J(3). Section 5J(4) of the Act provides that if a person fears persecution for one or more of the five reasons mentioned in s 5J(1)(a), the reason must be the essential and significant reason (or those reasons must be the essential and significant reasons) for the persecution; and the persecution must involve serious harm to the person; and the persecution must involve systematic and discriminatory conduct.
As to the statutory notion of serious harm, s 5J(5) provides some instances (without limiting the notion of serious harm) of serious harm and they are: a threat to the person’s life or liberty; significant physical harassment of the person; significant physical ill‑treatment of the person; significant economic hardship that threatens the person’s capacity to subsist; denial of access to basic services where the denial threatens the person’s capacity to subsist; denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
One of the five reasons in s 5J(1)(a) is membership of a particular social group. Section 5L provides relevantly that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic is shared by each member of the group; and the person shares, or is perceived as sharing, the characteristic; and any of the following features apply, namely: the characteristic is an innate or immutable characteristic; the characteristic is so fundamental to a member’s identity or conscience that the member should not be forced to renounce it; the characteristic distinguishes the group from society.
Section 36(2)(aa) provides that a criterion for a protection visa is that the applicant is a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm. Section 36(2A) provides that a non‑citizen will suffer significant harm if that person will be arbitrarily deprived of his or her life, or the death penalty will be carried out on that person, or that person will be subjected to torture, or subjected to cruel or inhuman treatment or punishment or subjected to degrading treatment or punishment.
Finally, s 36(2B) provides that there is taken not to be a real risk that the relevant person will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for that person to relocate to an area of the country where there would not be a real risk that that person will suffer significant harm, or the person could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by the relevant person personally.
In determining the application by the appellants, the Minister’s delegate had particular regard to the statutory notion of whether the first appellant was a member of a particular social group as contemplated by s 5L of the Act and whether there was a real chance of persecution of the appellants in all parts of the receiving country (or at all) should the appellants be returned to Canada. The delegate had regard to the notion of effective protection measures and also considered the question of whether the appellants would suffer serious harm or significant harm.
The Tribunal conducted a merits review of the delegate’s decision and affirmed the delegate’s decision but did so according to its own reasoning in the context of the evidence put before the Tribunal by the appellants. It will be necessary to return to aspects of the Tribunal’s decision later in these reasons.
In the principal proceeding, the appellants sought to demonstrate before the Federal Circuit Court that the Tribunal had fallen into jurisdictional error in affirming the delegate’s decision. In this Court, the appellants rely upon five grounds of contended error on the part of the primary judge in dismissing their amended application for judicial review. The five grounds are these.
First, the primary judge fell into error by failing to recognise that the Tribunal fell into jurisdictional error because the Tribunal “did not contact witnesses in the matter to affirm continued hardship of the applicant being returned to country of origin”. The reference to “the applicant” is a reference to DZG17. DZH17’s entitlement (or otherwise) to a protection visa was entirely dependent upon DZG17 establishing an entitlement to a protection visa.
Second, the reasons of the primary judge of 12 July 2018 do not mention the “reason of witnesses”.
Third, the primary judge did not accept the application for amendment by the appellants made on 28 January 2018.
Fourth, the primary judge had an obligation not to make errors (and if errors occurred, the primary judge had an obligation to “address those errors”) which I understand to be a contention that the primary judge had an obligation to decide the amended application according to law without error.
Fifth, the appellants have “not been afforded natural justice or legal assistance in this matter due to the country of origin”.
Accordingly, the question of whether the appellants ought to be given leave to rely upon evidence not before the Federal Circuit Court in considering the application for judicial review before it, is to be determined having regard to whether the evidence now sought to be relied upon could have been reasonably obtained by the appellants for the purpose of advancing their application and whether the evidence is relevant. Alternatively, if the position is that the evidence could not have reasonably been obtained by the appellants in support of their application for judicial review, the Court might grant leave to receive the evidence in support of the grounds of appeal if the evidence is relevant to a ground of appeal (in this case, a ground going to jurisdictional error) and the evidence would be likely to make good that ground thus leading to a finding that the Tribunal in affirming the delegate’s decision exceeded its jurisdiction.
In considering the interlocutory application to grant leave to rely upon the additional documents and additional evidence, I have had close regard to all of the papers comprised in the present appeal record including, of course, the detailed reasons of the Tribunal and the reasons of the primary judge. I have had regard to the documents and the written and oral submissions of the parties. Before turning to the particular documents and evidence the appellants seek to adduce on the hearing of the appeal, it is necessary to say something about the findings of the Tribunal which were considered by the Federal Circuit Court in the context of the grounds of challenge before that Court and the grounds of challenge to the decision of the Federal Circuit Court, in this Court.
In the proceedings before the Tribunal, the appellant (the reference to appellant in these reasons is a reference to the female appellant, DZG17) did not assert that she held a well‑founded fear of persecution on the grounds of race, religion, nationality or political opinion. Her documents and statements in support of the application for a protection visa gave rise to the question of whether she is a person who holds a well‑founded fear of persecution by reason of membership of a particular social group. Her documents and statements also gave rise to the question of whether the Minister could be satisfied that Australia owed her protection obligations because substantial grounds subsisted for believing that, as a necessary and foreseeable consequence of her removal from Australia to Canada, there subsisted a real risk that she would suffer significant harm.
In the Tribunal’s reasons, the Tribunal extensively examines each of the factual claims made by the appellant which are said to give rise to a fear of harm. The Tribunal also identifies the various assertions of the male appellant. The Tribunal also addresses the supplementary claims made in supplementary submissions made by the appellant in which she sought to clarify aspects of her evidence given at the two hearings before the Tribunal. It is not necessary in these reasons to examine all of the claims made by the appellant and the assertions of the male appellant. It is necessary to note some contextual matters. The Tribunal accepted that the appellant was the victim of child sexual abuse and that she has two children with her biological father. The appellant was born on 29 March 1968. Her first daughter to her biological father was born in July 1986. At the date of her first daughter’s birth, the appellant was 18 years and four months old. Her second daughter was born in July 1988. The appellant was then 20 years and four months old. Her third daughter born out of a relationship with her then partner was born on 24 December 1992. At the date of these proceedings, the appellant is approximately 51 years of age. Her first daughter is now approximately 32 years and six months old. Her second daughter is approximately 30 years and six months old and her third daughter is 26. Although not all of these matters are the subject of findings by the Tribunal (to which I will return), it should be noted that in the context of sexual abuse, the appellant said the following things.
The appellant’s father left when she was six months old due to her mother’s alcoholism and infidelity. Her mother remarried shortly thereafter and her step‑father became [REDACTED]. The appellant resided with them and her half‑brother, [REDACTED] (born one and a half years after the appellant) in British Columbia. The family was dysfunctional with both parents using alcohol and drugs for many years. The appellant says that she was raped by her step‑father. She says she was sexually abused by her mother and her step‑father. She disclosed these events to Coquitlam Police and the City of Vancouver Police Department and to the Ministry for Children and Families. She says that her cries for help were all ignored. She says that her abusers continued to abuse her for another two years until her mother decided to send her to live with her biological father. She says that that started a “different nightmare, one of which hell would have been a better place to go”. She says that her father began sexually abusing her within one year ultimately leading to the birth of her first two daughters. She says that the Ministry for Children and Families failed to protect her and made “very feeble” attempts to intervene. She says that she was told by an officer of the Ministry that the Department had no choice other than to send her back to live with her mother and step‑father. Thus, she feared continuing sexual abuse by them. In 1988, her biological father was charged with incest. He pleaded guilty. He was sentenced to six months jail. She says that she attempted to have her mother and step‑father charged with physical and sexual abuse but her voice was “never heard”. She says that the police and the Ministry placed all the blame for these events on her. She says that her mother did everything possible to persecute her. Her mother took steps to remove the first child from her care. The Ministry placed that daughter in the care of the appellant’s mother and step‑father, notwithstanding the vigorous agitations of the appellant. The appellant made numerous applications with the Provincial Court for custody and was granted temporary custody of her daughter. Many complaints were made by the appellant’s mother to the Ministry. The appellant’s mother complained to the Ministry once she became aware of the birth of the second child to the appellant’s biological father. The appellant says that the Ministry then placed both children in the care of the appellant’s mother and step‑father. The appellant made an application to the Provincial Court and was granted visitation rights. The appellant says that she reported odd behaviour of her two year old daughter to the Ministry which suggested to the appellant that her daughter had been sexually abused. She says nothing was done by the Ministry. She says that her counsellor at the time, Ms Lillian Kelly, expressed the professional opinion that the children’s care and safety would be secured by placing them in the home of foster carers rather than the appellant’s mother and step‑father. In 1992, the appellant married and a third daughter was born out of that union. The appellant made an application to the Court for full custody of her first two children. She says that her mother had obtained joint custody of the children in 1989 and insisted upon having the children in her care. She says that complaints were made by her to the police and the Ministry all of which were ignored. She says that she retained a private investigator, Ms Patricia McLaughlin (also certified as a supervisor for child access), to help her facilitate access to the children. She says that in 1998 an eight day trial commenced at her instigation in which she sought custody. She says that a great body of evidence was established in support of her case involving six professional witnesses including a physician, psychologist, psychiatrist, nurse, teacher, private investigator and six personal witnesses. She says that 10,000 pages of evidence was produced. Ultimately, she lost the case with some adverse findings being made against the appellant. The Ministry sought to take the appellant’s third daughter into custody although this ultimately did not happen. She says that on 9 November 2013, she and her fiancé decided to go to Australia partly influenced by the fact that her partner had procured employment as an information technology specialist at [REDACTED]. She says that she has “never felt happier, healthier and safer from [her] past, as fear has followed me around all my life”. She says that she no longer lives “in fear of her parents” and she no longer has to “worry about seeing them again”. She says that she no longer suffers from PTSD, nightmares and anxiety.
Across this chronology of events, the appellant had many interactions with the Ministry for Children and Families and various officers of Provincial and Canadian police forces.
Against this background, the appellant says, put simply, that should she return to Canada she would be subject to persecution and harassment by her mother and her step‑father. She says that should she return to Canada she will find it necessary to obtain a driver’s licence and other identifying factors which would enable her mother and step‑father to identify where she is living and harass and persecute her. She says she fears for her safety and says that she believes that should she return to Canada she would fear for her life. She says that her mother and step‑father would seek to intervene in a way which would make it difficult for her to obtain work and secure proper access to Canadian government services. She says that she has experienced intervention in this way previously by both her mother and step‑father, with the appellant’s employers and with Canadian government officers. For the reasons identified by the Tribunal, the male appellant claims that he would be seriously at risk and his life would be in jeopardy should he return to Canada. These fears are partly to do with the appellant’s knowledge of associations between her mother and step‑father and criminal conduct on the part of a man called Robert Pickton. The appellant sent a letter to the Tribunal after the first hearing in which she sought to clarify and synthesise her concerns. In that letter, she says this:
I am applying for this visa because I am in fear of a Religious organisation involving Hells [A]ngels and Robert Pickton (Serial Killer) and the followers that still exist within Canada. I was born into a religious organisation that I tried to leave in the 1980s and was oppressed, followed and threatened for doing so. I did not decide to be in this organisation, I was born into it. My Mother and Stepfather were heavily engaged in this religious organisation and are currently still active within it. … The religious organisation, my parents, and my biological father’s family, bestowed their extreme violent satanic and sadistic beliefs over many years of my young life and adult life, thereby creating severe fear of anyone I came into contact with. … I have endured many years of physical, sexual, mental and emotional abuse, and serious deformation [sic] of character, including identity theft, amongst many other events due to leaving this religious organisation in the early 1980s. It would be incredibly unsafe for me to be in Canada, as long as Canada has not yet located and jailed all of the parties involved, and as long as the religious organisation remains, my life continues to be [in] real danger. … One of the biggest reasons I fear [for] my life is because, I continue to have information of the very serious crimes of Robert Pickton and his followers including Hells Angels, before he was arrested, and because [of] the events I was directly subjected to before 1980. I am in real fear that I would be killed to keep me silent as to those non‑disclosed events, as Robert Pickton was in fact one of the leaders of this religious organisation in Port Coquitlam BC. Many files have gone missing from several cases surrounding Robert Pickton’s case. I have some of this information regarding some of the events related to the missing files.
I firmly believe, that because of the many followers, to which I was heavily connected to directly, including my own family, have not been caught by the Canadian Authorities and still continue to exist and live throughout Canada. Moving to different provinces in Canada is not an option. … Leaving this religious organisation and currently still having knowledge pertaining to this religious organisation with Robert Pickton and the Hells Angels becomes [a] death sentence for me to return to Canada or the United States. … I have always been in fear of my life in Canada because of this religious organisation, until I came to Australia.
This statement represents the most recent statement put to the Tribunal of the precise basis for the appellant’s fears should she return to Canada. The Tribunal did not accept that Australia owed protection obligations to the appellant either under s 36(2)(a) or s 36(2)(aa).
The appellant contended before the Tribunal that she would be subject to harm of a serious and significant kind at the hands of her mother and step‑father and that Canadian government authorities would not come to her aid and assist her and, in substance, would not enforce the law should she make complaint about conduct involving contraventions of the law by her mother and/or step‑father. The basis for these fears is said to rest upon her life experience in dealing with her mother and step‑father, the religious organisation she talked about, the failure of the Ministry for Children and Families to take action to protect her in the past and connections and contacts her mother and step‑father have within government and the Royal Canadian Mounted Police. She says that there is no place in Canada where she would be safe.
These matters simply represent contextual background to the current application.
The appellant says that the Canadian Freedom of Information files (about all of these past events) are now available to her (after many attempts) and they were not available to her at the date of the Tribunal hearing and the proceeding before the Federal Circuit Court. She says that leave should be given to introduce them into evidence because they will confirm the lack of support of Canadian government authorities to come to her assistance in the past to help address her complaints of sexual abuse. I accept that there is a possibility that documents obtained by the appellant from Canadian government authorities as a result of Freedom of Information requests might well reveal the pattern of engagement between the appellant and relevant government departments and police forces and I accept that those documents might show a failure to act properly or perhaps, at all in relation to particular complaints. However, these events, and any papers in relation to them, relate to engagements well in the past. I am not satisfied that such documents are probative of any matter arising in relation to any of the grounds of appeal from the Federal Circuit Court decision. That is to say, I am not satisfied that any of these documents about these earlier events will assist the Court in determining whether the Tribunal fell into jurisdictional error for any of the grounds now advanced in support of that proposition.
That is also true in relation to the Californian Freedom of Information files and the reasons for judgment of the British Columbia Supreme Court of Canada which, no doubt, address the particular factual controversies that fell for determination by that Court.
Similarly, I can see no basis upon which documents relating to DZH17’s unfair dismissal can possibly be relevant to any of the grounds of appeal.
That also applies to a skills assessment undertaken by the Computer Society of Australia.
Similarly, character letters on behalf of DZG17 from business clients and employees are not relevant to grounds upon which the decision of the Federal Circuit Court is now subject to challenge.
The same position applies in relation to a proposed social media text from DZG17’s family member.
The question here always is one of whether the proposed document is relevant to a ground of appeal and is likely to be influential in making good a ground of appeal.
The appellants also seek leave to adduce oral evidence from Donald Corneau and Patricia McLaughlin. They seek to do so through either a videoconference facility or telephone facilities. I have had the benefit of reading the material in the present Appeal Book and, in particular, Mr Corneau’s statement. No doubt, these are witnesses who would speak to the events reflected, in the case of Mr Corneau, in his present statement, and, in the case of Patricia McLaughlin, the events which are concerned with her particular engagement in the sequence of events as between the appellant and the appellant’s mother and step‑father. Ms McLaughlin could, no doubt, speak about relations between the appellant and her first two daughters when they were young and the relationship between those daughters and the appellant’s mother and step‑father. I am unable to see how any evidence from these individuals assists in making out any of the grounds of appeal from the decision of the Federal Circuit Court. The evidence of these witnesses might well support aspects of the narrative of the appellant about her earlier life experiences but evidence from these witnesses is not probative of matters which go to making good the grounds of appeal which are directed to whether the Federal Circuit Court fell into error in failing to find jurisdictional error on the part of the Tribunal in the way contended.
That is also true for the emails of Lillian Kelly.
As to Items 10, 11 and 12 of the application, evidence going to the current medical and psychological condition of the appellant is not relevant to the grounds of appeal: Item 10. Evidence from Ms Anne Moorhouse, a psychologist, about the appellant, is not relevant to the grounds: Item 11. Item 12 seeks an order directed to the Minister for the production of files sought by the appellant in September 2017. This proceeding is not one in which the Court can make an order addressing an entirely separate matter which concerns the production of documents, rightly or wrongly not disclosed, in consequence of an either, valid or invalid application, made under particular legislation at a particular time. That matter cannot be simply bundled up with this matter.
Having regard to all of these considerations, the interlocutory application must be dismissed. For present purposes, the costs of the application are to be reserved.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 11 January 2019