EBO16 v Minister for Immigration & Anor
[2018] FCCA 980
•24 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBO16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 980 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm from the military in Fiji – applicant not believed – separate application made by other family members – applicants first interviewed together before separate hearings were conducted by the Tribunal – inconsistencies in evidence raised by letter after the hearing – whether the procedure followed by the Tribunal was fair considered – additional information given to the applicants’ migration agent but not passed on to the Tribunal – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.422B, 424, 424AA, 424A, 425, 426 |
| Cases cited: EBQ16 v Minister for Immigration & Anor [2018] FCCA 981 EBR16 v Minister for Immigration & Anor [2018] FCCA 982 Minister for Immigration vMaltsin [2005] FCAFC 118 Minister for Immigration v SCAR (2003) 128 FCR 553 SZFDE v Minister for Immigration (2007) 232 CLR 189 SZNNJ v Minister for Immigration [2009] FCA 1356 |
| First Applicant: | EBO16 |
| Second Applicant: | EBP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3723 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 April 2018 |
| Date of Last Submission: | 21 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2018 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Ms B Griffin of Australian Government Solicitor |
ORDERS
The application lodged on 22 December 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3723 of 2016
| EBO16 |
First Applicant
EBP16
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 December 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are two applicants, who are a mother (applicant) and her granddaughter. Effectively identical visa applications were separately made by her son (EBQ16) and her husband (EBR16). As separate review applications had been made by the various applicants, the Tribunal, constituted by the same Tribunal member, made separate decisions on them.
Separate judicial review applications were made by the applicants but, by arrangement between the solicitors for the applicants[1] and the Minister, they were all listed at the same time before me. I ordered that the proceedings be heard concurrently. I have, however, made separate decisions.[2]
[1] The applicants’ solicitors withdrew by notice filed on 29 May 2017
[2] See EBR16 v Minister for Immigration & Anor [2018] FCCA 982 and EBQ16 v Minister for Immigration & Anor [2018] FCCA 981
Background facts are otherwise detailed in the Minister’s outline of submissions filed on 12 April 2018.
The applicants are nationals of Fiji who arrived in Australia on 25 June 2015.[3] As noted above, the applicant is the mother of applicant EBQ16 (Federal Circuit Court Proceedings No. SYG3725/2016), and the wife of applicant EBR16 (Federal Circuit Court Proceedings No. SYG3726/2016). The second applicant in this proceeding is a minor, being the applicant’s granddaughter.
[3] Court Book (CB) 21
On 4 September 2015, the applicants applied for the visa.[4] The applicant’s claims are set out in a statutory declaration dated 3 September 2015.[5] The second applicant did not make any claims for protection independent of the applicant.
[4] CB 1
[5] CB 92-100
The applicant claimed to fear harm from the Fijian military. The applicant claimed that the issues started after her son, EBQ16, and three other boys were accused of stealing a camera from school. Her son was tortured and subsequently ran away from school.
After the incident, her son refused to return home, and later enrolled in university. She and her husband complained to police, however, they took no action. On a number of occasions, military officers attended her work place and home asking for her son. But she lied and told them he was not there. Prior to them departing Fiji, the applicant’s husband called the Fijian military and used abusive language. The applicant was concerned this made matters worse.
The applicant fears returning to Fiji as she fears for the life of her son.
On 9 February 2016, the delegate refused to grant the applicants the visa.[6] On 15 February 2016, the applicant applied to the Tribunal for review of the decision.[7] On 6 September 2016, the Tribunal invited the applicant to attend a Tribunal hearing.[8] On 9 September 2016, the applicant’s migration agent sought an adjournment of the Tribunal hearing.[9] On 14 September 2016, the Tribunal refused the adjournment request and relevantly informed the applicant that the Tribunal member would first speak with her, EBR16 and EBQ16 together, before proceeding with individual hearings.[10] It does not appear that the applicant’s migration agent returned the “response to hearing invitation” form, which would have indicated whether or not the applicant wished to call any witnesses.
[6] CB 171
[7] CB 183
[8] CB 195-196
[9] CB 205-206
[10] CB 210
On 5 October 2016, the applicant’s migration agent provided further material in support of her application, including a letter from the director of the Pacific Indigenous Samaritan Association Inc (PISAI).[11] On the same day, the applicants attended a Tribunal hearing with their migration agent. According to the hearing record, no witnesses were called.[12]
[11] CB 219-232
[12] CB 233-234
At the hearing, the applicant claimed that she had joined PISAI for security. She attended meetings to find out what it was about, paid for membership, and attended a demonstration in Liverpool against Prime Minister Bainimarama. The applicant also gave evidence that she joined the Fijian Native Government in Exile (FNGE).
Following the hearing, on 13 October 2016, the Tribunal wrote to the applicant, inviting her to comment on inconsistencies between her evidence and that of her husband and son (the s.424A letter).[13] On 27 October 2016, the applicant provided a response to the Tribunal.[14] The particulars of the information and responses are set out in full at [28] of the Tribunal’s decision.[15]
[13] CB 240-242
[14] CB 243-248
[15] CB 261-263
Tribunal decision
On 2 December 2016, the Tribunal affirmed the decision of the delegate.[16]
[16] CB 256
The Tribunal set out in full the applicant’s claims and summarised the material provided by the applicant’s migration agent.[17]
[17] CB 257-259 at [4]-[18]
The Tribunal was concerned about the credibility of the applicant and considered that her credibility was a matter of central importance to its consideration.[18]
[18] CB 264 at [31]
At the hearing, the Tribunal put to the applicant a number of concerns it had about her evidence:
a)the Tribunal noted that the applicant’s daughter was still living Fiji and has had no problems. The applicant said that the military did not bother to ask who she was. The Tribunal put to the applicant that if she and her son were of such high profile interest to the military it would be reasonable to expect that other family members had been approached regarding their whereabouts;[19]
b)the Tribunal put to the applicant that DFAT advised that the police have responded to allegations against military personnel appropriately and have charged military officers, and that the applicant had not provided any evidence of her approaches to the police. The applicant stated that she was told to withdraw the case by the Police Commissioner. She said that she thought evidence was provided about this;[20]
c)the Tribunal put to the applicant that she and her son were able to depart Fiji without any issues or adverse attention while clearing customs and immigration. The applicant responded that there were no military on the day she left;[21] and
d)the Tribunal put to the applicant that she was not a member of any political party or movement. The Tribunal noted that while the director of PISAI had been banned from Fiji, other members were not banned and there was no evidence of members being harmed. The Tribunal drew attention to the DFAT information that only high profile figures and those publicly criticising the regime were at risk. The applicant responded that the government had previously threatened members and they would know that she was now a member.[22]
[19] CB 259-260 at [19]
[20] CB 260 at [20]-[21], [23]
[21] CB 260 at [22]
[22] CB 260 at [24]-[25]
The Tribunal considered the applicant’s evidence and her responses to the s.424A letter, namely:
a)the applicant, her husband and son provided inconsistent evidence in relation to her son’s schooling. When this was put to the applicant, she responded that he had misquoted his other school and this was human error. She said her son was nervous and when he was asked to talk about it, it was like “rubbing salt over the wound”. The Tribunal did not accept this explanation. While the Tribunal accepted that applicants are nervous attending hearings, it noted there was no evidence before it to suggest that her son had problems recalling incidents;[23]
b)the applicant, her husband and son gave inconsistent evidence about when the military visited their home and when they lodged a complaint with the police. The applicant’s son gave evidence that the military visited their home prior to the police complaint being made. The applicant gave evidence that they made a complaint to the police in October 2013 and that the military visited in September 2014. In response, the applicant reiterated her evidence. The Tribunal was not satisfied that this response explained the inconsistences in the evidence;[24]
c)the Tribunal put to the applicant the inconsistent evidence regarding where and when her son was collected after his claimed assault. In response, the applicant explained the reason for the lack of reporting of the events to the parents by the school. The Tribunal concluded that had the applicant and her husband collected their son after the assault, they should have provided consistent evidence regarding how long the son was away for and where he was picked up;[25]
d)the Tribunal noted the applicant and her son provided inconsistent evidence in relation to when he commenced his tertiary studies. The applicant told the Tribunal her son did not work at all in Suva, and her son told the Tribunal he worked as a labourer. When put to the applicant, she explained that her son worked for a refrigeration company doing the practical part of his course, and was not paid. The Tribunal rejected this explanation preferring the evidence of her son;[26] and
e)the applicant’s son told the Tribunal that he spent two months in Lautoka before moving to Australia, whereas the applicant claimed he remained in Suva. When put to the applicant, she responded he only came back to fill in the passport application, and never stayed at home for fear of being caught. The Tribunal did not accept this explanation. The Tribunal was of the view that it was an attempt to overcome inconsistent evidence.[27]
[23] CB 264 at [35]-[36]
[24] CB 264-265 at [37]-[39]
[25] CB 265 at [40]-[42]
[26] CB 265 at [43]-[44]
[27] CB 265-266 at [45]
The Tribunal considered the applicant’s claims singularly and cumulatively. It concluded the applicant was not a witness of truth and that she fabricated her claims in order to obtain the visa.[28]
[28] CB 266 at [46]-[47]
In considering whether there was a real chance of serious or significant harm occurring if the applicants were to return, the Tribunal considered the applicant’s accounts in light of the country information. The Tribunal weighed the DFAT country information against the information provided by the director of PISAI and the other letters in support of the applicant.[29]
[29] CB 266-268 at [48]-[61]
The applicant had also provided a letter from the former National Director of the SDL Party who was now the official advisor to the newly formed Social Liberal Democratic Party (SODELPA) NSW. The letter stated that the applicant and her family were very strong supporters of the SODELPA Party. The Tribunal put no weight on this letter as it did not find the applicant to be a witness of truth.[30]
[30] CB 267 at [52]
In relation to the material provided by the director of PISAI, the Tribunal noted the applicant’s evidence that she had only attended one demonstration and did not claim to have an active involvement with PISAI. As such, the Tribunal concluded the applicant was not a high profile supporter, and only had low level involvement.[31]
[31] CB 267-268 at [56]
The present proceedings
These proceedings began with a show cause application filed on 23 December 2016. The applicants continue to rely upon that application. There are four grounds in it:
1. The Tribunal committed jurisdictional error when it failed to grant a separate hearing to the Applicant from hearings of claims by [EBR16] and [EBQ16] and mixed irrelevant evidence into the Applicant's case.
2. The Tribunal committed jurisdictional error when it failed to allow the Applicant reasonable opportunity to call evidence from [EBR16 and EBQ16] and failure to warn such witnesses that evidence given could be used against other family member applicants.
3. The Tribunal committed jurisdictional error when it placed undue weight on evidence in other applications namely applications of [EBR16] and [EBQ16] which was not evidence presented for the Applicant.
4. The Tribunal committed jurisdictional error when it failure to regard evidence presented as to a real risk or harm to the Applicant in returning to her native country of Fiji and failure to place weight on evidence available to the Tribunal from Amnesty International concerning violence applied by members of the Police Force and Military against members of a class which the Applicant belonged.
(error in original)
The application is supported by a short affidavit filed with it made by the applicants’ former solicitor. The solicitor withdrew from the record by notice filed on 29 May 2017.
I also have before me as evidence the book of relevant documents (court book) filed on 22 March 2017.
Only the Minister filed written submissions in advance of the trial in accordance with procedural orders I had made. I invited oral submissions from the applicant at the trial. She told me that the claims and evidence she and the other members of her family had made to the delegate and the Tribunal were true. She acknowledged that there had been inconsistencies in the evidence given by herself, her husband and her son about the relevant events and other matters of fact but submitted that these had been properly explained to the Tribunal. She told me that she had given everything bearing upon the review to her lawyer.
During the course of oral submissions, EBR16 stated that the family had given to their lawyer to pass on to the Tribunal correspondence from the son’s school providing eyewitness evidence of his beating. The applicant added that they had also provided a letter from the police department corroborating the complaint that they had made to the police about the incident. The applicant told me that the material had been provided one to two weeks before the Tribunal hearing.
It was apparent that there was nothing in the court book in relation to this asserted additional evidence, neither did the Tribunal say anything about it in its reasons. I gave the applicants the opportunity to file further evidence and submissions in relation to that material. I provided a like opportunity to the Minister.
A further affidavit by the applicant was filed on 31 May 2018. The Minister filed an affidavit by Oneil Bernardo of the Minister’s Department, together with further written submissions, on 21 June 2018. I have taken those affidavits and submissions into account.
Consideration
In my view, there is no substance to the grounds of review advanced in the application. I agree with the Minister’s submissions in relation to those grounds.
Ground 1 alleges that the Tribunal erred by failing to grant a separate hearing to the applicant from the hearings of the claims made by her family, and that the Tribunal erred by mixing irrelevant evidence into the applicant’s case.
In relation to the first limb, pursuant to s.425 of the Migration Act 1958 (Cth) (Migration Act), the applicant was invited to attend a Tribunal hearing. The object of a Tribunal hearing is to “hear evidence and receive arguments in the most useful and efficient manner” which will often “involve flexibility in the order of proceedings” on the part of the Tribunal.[32] The applicant must demonstrate that she was denied a real and meaningful opportunity to give evidence and present arguments.[33]
[32] See SAAP v Minister for Immigration (2005) 228 CLR 294, 304 at [21] per Gleeson CJ
[33] See Minister for Immigration v SCAR (2003) 128 FCR 553, 561 at [37]
As noted above, the applicant was invited to attend a hearing before the Tribunal and she was informed, in advance, that the Tribunal would speak with her, EBQ16 and EBR16 first before conducting separate hearings with them individually. As such, contrary to the applicant's assertion, a separate hearing was conducted with her.
Further, the applicant was represented by a migration agent at the hearing. It is clear from the material before the Court that neither the applicant nor her migration agent raised any objection to Tribunal's proposed course of action. There is no evidence before the Court, such as a transcript of the Tribunal hearing, to suggest that the applicant was denied a real and meaningful opportunity to give evidence and present arguments at her individual hearing with the Tribunal.
In relation to the second limb, the applicant does not identify the “irrelevant evidence” which she purports that the Tribunal had taken into consideration. To the extent the applicant asserts that the Tribunal erred by taken into account the evidence of her son and husband, I reject the assertion. First, it is clear from the structure of the Migration Act that the Tribunal may take into account information from other sources in conducting its review.[34]
[34] See ss.424, 424AA and 424A of the Migration Act; NAHI v Minister for Immigration [2004] FCAFC 10 at [11]
Secondly, it is apparent that the Tribunal complied with its statutory obligation in inviting the applicant's comments on the evidence of her husband and son. The Tribunal wrote to the applicant, pursuant to s.424A of the Migration Act, and gave her clear particulars of information that it considered would be the reason, or a part of the reason, for affirming the decision under review. The Tribunal explained why the information was relevant and the consequences of it being relied on in affirming the decision under review. The Tribunal did not refer to any other matters aside from those contained in its s.424A letter.
In the circumstances, ground 1 does not identify any jurisdictional error on the part of the Tribunal.
Ground 2 contends that the Tribunal failed to give the applicant a reasonable opportunity to call evidence from her family members and failed to warn such witnesses that their evidence could be used against other family member applicants.
The Tribunal invited the applicant to a Tribunal hearing. The hearing notification was sent in accordance with s.425A and s.426 of the Migration Act, which relevantly informed the applicant of her right to call witnesses.[35] In addition, as noted above, the applicant was represented before the Tribunal and there is no evidence to suggest that the applicant requested the Tribunal to take oral evidence from any person.[36] Moreover, there is no evidence to indicate that the applicant objected to the approach the Tribunal took to obtain information from her family which it considered relevant.[37] As a result, in my view, the applicant was afforded a reasonable opportunity to call evidence from her family as witnesses.
[35] CB 217
[36] Cf. Minister for Immigration vMaltsin [2005] FCAFC 118
[37] Section 424 of the Migration Act
In relation to the second complaint, it is trite law that the Tribunal’s obligation to afford procedural fairness to the applicant at the Tribunal hearing is comprehensively defined by Part 7, Division 4 of the Migration Act.[38] It is apparent that the Tribunal was not under any statutory obligation to forewarn the applicant that it would be considering the evidence of her husband and son for the purpose of determining her application for review. The Tribunal was obliged to invite the applicant to comment on information obtained from them which would be the reason or a part of the reason for affirming the decision under review. In the present case, the Tribunal complied with that obligation by sending the s.424A letter.
[38] See s.422B of the Migration Act
In the circumstances, ground 2 does not identify any jurisdictional error on the part of the Tribunal.
Ground 3 contends the Tribunal placed undue weight on the evidence of the applicant’s family members which was not evidence presented by the applicant. However, it is well settled that it is a part of the Tribunal’s fact finding function to accord weight to the evidence before it.[39]
[39] See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J (as he then was); NAHI at [11]
In any event, the Tribunal’s adverse credibility findings were open to it on the evidence and material before it, and for the reasons it gave. The Tribunal noted the various inconsistencies between the evidence of the applicant and her husband and son, and found that the applicant had fabricated her claims for protection. Those findings cannot be said to be so unreasonable that no rational or logical decision-maker could have arrived at the same conclusion on the same evidence.[40] The applicant’s assertion in ground 3 does not establish any jurisdictional error by the Tribunal.
[40] See Minister for Immigration v SZMDS (2010) 240 CLR 611 at 647-648, [130] per Crennan and Bell JJ
Ground 4 asserts the Tribunal failed to have regard to the applicant’s evidence and evidence from Amnesty International concerning violence applied by members of the police force and the military against members of a class to which the applicant belonged.
It is unclear as to the category of evidence the applicant alleges that the Tribunal failed to take into account. Contrary to the applicant’s assertion, it is apparent that the Tribunal had regard to the information and evidence provided by the applicant, put country information to her, and rejected her claims on the basis of the evidence before it.[41]
[41] See CB 258 at [8]; CB 259-261 at [19]-[26]; CB 266-268 at [47]-[61]
To the extent that the applicant contends that the Tribunal did not consider evidence of her approaches to the police, there was, as noted by the Tribunal at [21], no evidence before the Tribunal to support this claim.
In relation to the “evidence … from Amnesty International”, the applicant did not submit any report from Amnesty International to the Tribunal, nor did the delegate consider any such report. The only evidence before the Tribunal that relates to Amnesty International is three website links, which are attached to a letter from the director of PISAI dated 5 October 2016.[42] However, the Tribunal expressly stated that it had considered the information provided by the director.[43]
[42] See CB 226, 228 at items 4, 5 and 32
[43] See CB 267-268 at [56]-[58]
Moreover, those articles relate to the general political situation in Fiji and as is well settled, country information to which the Tribunal had regard and the weight it gave to that information is a matter for the Tribunal.[44] In the present matter, the Tribunal relied on independent country information and found that the applicant would not face a real chance of serious harm in Fiji for any reason. As such, ground 4 does not disclose any jurisdictional error on the part of the Tribunal.
[44] See NAHI at [11]
The additional material
The applicants have taken up the opportunity afforded them by my orders made on 19 April 2018 to file evidence and submissions to support the assertions made orally at the trial by EBR16.[45]
[45] The affidavit filed on 31 May 2018 was filed two weeks late but no objection was raised by the Minister
I accept, from the affidavit of EBO16, that she sent two documents to her migration agent on 30 March 2016 and early May 2016 that she wanted him to forward to the Tribunal. These were:
a)a statement dated 14 March 2016 from the Fiji Ministry of Education confirming that EBQ16 was disciplined over the camera incident; and
b)a statement dated 3 May 2016 from the Inspector of Police at Lautoka confirming that EBR16 had complained to the police about the treatment of EBQ16 by the military in relation to the incident.
I further accept that the applicants have been unable to clarify with their agent what he did with those documents.
I accept from the affidavit of Mr Bernardo that the documents were not received by the Tribunal. The most likely inference to draw is that the agent did not forward the documents to the Tribunal.
There are two questions to be dealt with by the Court. The first is whether the migration agent’s action (or inaction) constituted fraud in the relevant sense, and if so, the second is whether the migration agent’s actions stultified the Tribunal’s jurisdiction.[46]
[46] See SZFDE v Minister for Immigration (2007) 232 CLR 189 at [49]
As the High Court made clear in SZFDE at [53], “bad or negligent advice or some other mishap” by a migration agent, not amounting to a fraud on the applicant and the Tribunal, does not vitiate the Tribunal’s decision.[47]
[47] See also Minister for Immigration v SZLIX (2008) 245 ALR 501 at [33]
It has been said that fraud comes in many guises and is “infinite in variety”.[48] It is important to bear in mind that such an allegation is very serious and the applicant bears the significant evidential burden in proving its existence.
[48] SZFDE at [8]-[9]
Further, unlike SZFDE, in this case, the applicant’s agent was a registered migration agent who was in direct and frequent contact with the Tribunal (and the Minister’s Department) about the review. There is no basis in the evidence to infer, or otherwise find, any dishonest intention on the part of the applicant’s migration agent in not giving the documents to the Tribunal.
Accepting for the present purposes that the documents referred to above at [49] are relevant to the Tribunal’s review, the present case is nevertheless indistinguishable from those cases where, due to negligence or inadvertence, an applicant’s migration agent did not inform the applicant of the date of the Tribunal hearing. In those cases, undoubtedly, had the applicant attended the Tribunal hearing, they would have given oral evidence that was relevant to their claims. Yet, the Court has consistently held in those matters that mere negligence does not stultify the Tribunal’s review process: see SZLIX; Guo v Minister for Immigration;[49] SZNNJ v Minister for Immigration.[50]
[49] [2015] FCA 134
[50] [2009] FCA 1356
Conclusion
The applicants have failed to establish that the decision of the Tribunal was affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 July 2018
2
13
3