Ebq16 v Minister for Immigration & Anor
[2018] FCCA 981
•24 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBQ16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 981 |
| 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 applications 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 applicant’s migration agent but not passed on to the Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 424AA, 424A, 425, 426 |
| Cases cited: EBO16 v Minister for Immigration & Anor [2018] FCCA 980 Minister for Immigration v SCAR (2003) 128 FCR 553 Minister for Immigration v SZMDS (2010) 240 CLR 611 SAAP v Minister for Immigration (2005) 228 CLR 294 |
| Applicant: | EBQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3725 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 Applicant appeared in person
| Solicitors for the Respondents: | Ms B Griffin of Australian Government Solicitor |
ORDERS
(1) The application lodged on 22 December 2016 is dismissed.
| (1) FEDERAL CIRCUIT COURT OF AUSTRALIA AT Sydney |
SYG 3725 of 2016
| EBQ16 |
Applicant
And
| Minister for Immigration & Border Protection |
First Respondent
| Administrative Appeals Tribunal |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
1. The applicant seeks 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 applicant a protection visa.
2. The applicant is the son of applicants EBR16 (Federal Circuit Court Proceedings No. SYG3726/2016) and EBO16 (Federal Circuit Court Proceedings No. SYG3723/2016). As separate review applications had been made by the various applicants, the Tribunal, constituted by the same Tribunal member, made separate decisions on them.
3. Separate judicial review applications were made by the applicants but, by arrangement between the solicitors for the applicants 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.
4. Background facts relating to this application are set out in the Minister’s submissions filed on 12 April 2018.
5. The applicant is a national of Fiji who arrived in Australia on 25 June 2015. On 4 September 2015, the applicant applied for the visa. The applicant’s claims are set out in a statutory declaration dated 3 September 2015.
6. The applicant claimed to fear harm from the Fijian military. The applicant stated that his problems started in 2013 when a camera went missing from his school. The military officers at the school blamed the applicant and three others for it going missing. The applicant was questioned about it and beaten because of the missing camera.
7. The applicant claimed that he and the other boys ran away from the school and went to Suva. He moved from place to place and then stayed at his aunt’s place in Suva. His parents contacted him and told him that the military were looking for him.
8. The applicant claimed that his father reported the beatings to the police, however they took no action. The applicant fears that the military will still be looking for him.
9. On 9 February 2016, the delegate refused to grant the applicant the visa.
10. On 15 February 2016, the applicant applied to the Tribunal for review of the decision. On 6 September 2016, the Tribunal invited the applicant to attend a Tribunal hearing. On 9 September 2016, the applicant’s migration agent sought an adjournment of the Tribunal hearing. On 14 September 2016, the Tribunal refused the adjournment request and relevantly informed the applicant that the Tribunal member would first speak with him, EBR16 and EBO16 together, before proceeding with individual hearings. 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.
11. On 5 October 2016, the applicant’s agent provided further material in support of his application. On the same day, the applicant attended a Tribunal hearing, with his migration agent. According to the hearing record, no witnesses were called.
12. On 13 October 2016, following the hearing, the Tribunal wrote to the applicant, inviting him to comment on inconsistencies between his evidence and that of his parents (the s.424A letter). On 27 October 2016, the applicant provided a response to the Tribunal. The particulars of the information and responses are set out in full at [24] of the Tribunal’s decision.
Tribunal decision
13. On 2 December 2016, the Tribunal affirmed the decision of the delegate.
14. The Tribunal set out the applicant’s claims in full and summarised the material provided by the applicant’s agent.
15. The Tribunal was concerned about the credibility of the applicant and considered that his credibility was a matter of central importance to its consideration.
16. At the hearing, the Tribunal was concerned about a number of aspects of the applicant’s evidence before it. The Tribunal put to the applicant that it was implausible that a powerful military was able to come to his school and beat him for two days, yet was not able to find him in Suva. The Tribunal also put to the applicant that it was implausible that the military would harm him and the other boys at school and the school would not report the incident to the police.
17. The Tribunal considered the applicant’s evidence and his responses to the s.424A letter, namely:
a.a) the applicant told the Tribunal that he was harmed at the Queen Victoria School. The Tribunal noted this was inconsistent with his visa application and the evidence of his parents. When put to the applicant, he responded that he made a mistake during the hearing because he was nervous, and was not expecting to be the first to be called to give evidence during the hearing. The Tribunal accepted that the applicant might have been nervous, but did not accept that being asked to give evidence as the first of three applicants could affect his ability to recall which school he attended;
b.b) the applicant gave evidence that, after the assault at school, he and three friends fled to Suva and stayed with various people for one to two weeks. The Tribunal noted the applicant’s father, in his protection visa application, stated the applicant was only away for three days. When put to the applicant, he responded that his parents were only alerted a few days after he went missing and that they spent a whole day travelling to places where they thought he would have been. The Tribunal rejected this explanation. The Tribunal concluded that had the applicant been collected by his parents in Suva, they should have been able to provide consistent explanations;
c.c) the applicant claimed that, from 2014, he worked in Suva as a labourer. However, his mother told the Tribunal that he did not work at all. When put to him, the applicant explained that he was not paid for his work and it was a practical placement for studies. The Tribunal did not accept this explanation, as he was able to explain that his job was part-time and described that it involved moving from site to site;
d.d) the Tribunal noted the applicant and his mother provided inconsistent evidence in relation to when he commenced his tertiary studies. The applicant claimed he enrolled in 2013, while his mother said he commenced in September 2014. When put to the applicant, he claimed that he enrolled later in 2013 because of the wishes of his parents. He said this meant he could not start until later in 2014. The Tribunal rejected this explanation as it was of the view it contradicted his own evidence given at the hearing. The Tribunal was of the view that it was simply an attempt by the applicant to provide consistent evidence with his mother;
e.e) the applicant claimed that he spent two months in Lautoka before moving to Australia, whereas his mother stated he remained in Suva. The applicant said that he was travelling between Suva and Lautoka just before he left for Australia, but never stayed home because he feared for his life. The Tribunal rejected this explanation, as it assumed that he would have given that evidence during the hearing;
f.f) the Tribunal put to the applicant that it was implausible that the military would pursue him for so many years for one camera. The applicant claimed that the military was pursuing him as he complained about them. The Tribunal did not accept this as plausible;
g.g) the applicant provided a letter from the former National Director of the SDL Party who is now the official advisor to the newly formed SODELPA NSW. The letter states that the applicant’s father and family are very strong supporters of the SODELPA Party. The applicant gave evidence that he was not involved in any political parties or movements in Fiji or Australia. He explained that his father was always supporting the SODELPA Party and has remained a staunch follower. The Tribunal placed no weight on this evidence as it was inconsistent with the applicant’s own evidence; and
h.h) the applicant also provided a letter from the director of the Pacific Indigenous Samaritan Association Inc (PISAI) and the Fijian Government in Exile (FNGE) which stated that the applicant became a member on the strength of his parents’ membership. The Tribunal put to the applicant that his evidence was that he was not involved in any political parties or movements. The applicant explained that he attended a few meetings, but did not know the name of the Association or that they met regularly. The Tribunal did not accept this explanation, preferring the applicant’s own evidence that he was not involved in any political movements or parties.
18. The Tribunal was satisfied that the applicant had fabricated his claims of harm in Fiji in order to obtain the visa. The Tribunal considered the applicant’s claims singularly and cumulatively. It was not satisfied he was a witness of truth and did not accept that he fled Fiji fearing serious harm for a Refugees Convention reason.
j.19. In considering whether there was a real chance of serious or significant harm occurring if he were to return to Fiji, 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. It was not satisfied that the applicant or his parents would be persecuted by the Fijian authorities based on their political opinion, nor was the Tribunal satisfied that the applicant held adverse political views which would bring him to the attention of the Fijian authorities.
k.20. The Tribunal found the applicant did not have a well-founded fear of persecution if returned to Fiji.
l.21. In the context of complementary protection, the Tribunal relied on its previous findings, and was not satisfied that as a necessary and foreseeable consequence of the applicant being returned, there was a real risk that he would suffer significant harm.
The present proceedings
a.22. The applicant relies upon his judicial review application lodged on 22 December 2016. There are four grounds in that application:
1.The Tribunal committed jurisdictional error when it failed to grant a separate hearing to the Applicant from hearings of claims by [EBR16], [EBO16], [EBP16] 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], [EBO16], [EBP16] 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], [EBO16], [EBP16] 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 [his] 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.
5. (errors in original)
a.23. The application is supported by a short affidavit filed with it by the applicant’s former solicitor. I also have before me as evidence the court book filed on 15 March 2017.
b.24. I invited oral submissions from the applicant at the trial. He referred to the studies he is undertaking at TAFE. He supported the submissions made by his parents. In her submissions, EBO16 referred to psychological problems her son was experiencing. I invited the applicants to consider counselling. I extended to the applicant the same opportunity to file additional evidence and submissions as I had granted to EBO16 and EBR16.
Consideration
a.25. There is no substance to the grounds of review advanced by the applicant. I agree with the Minister’s submissions concerning those grounds.
b.26. 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 his family, and that the Tribunal erred by mixing irrelevant evidence into the applicant’s case.
c.27. 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. The applicant must demonstrate that he was denied a real and meaningful opportunity to give evidence and present arguments.
d.28. As noted above, the applicant was invited to attend a hearing before the Tribunal and he was informed, in advance, that the Tribunal would speak with him, EBR16 and EBO16 first before conducting separate hearings with them individually. As such, contrary to the applicant’s assertion, a separate hearing was conducted with the applicant.
e.29. 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 his 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 his individual hearing with the Tribunal.
f.30. In relation to the second limb, the applicant does not identify the “irrelevant evidence” which he 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 his parents, 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.
g.31. Secondly, it is apparent that the Tribunal complied with its statutory obligation in inviting the applicant’s comments on his parents’ evidence. The Tribunal wrote to the applicant, pursuant to s 424A of the Migration Act, and gave him 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.
h.32. In the circumstances, ground 1 does not identify any jurisdictional error on the part of the Tribunal.
33. Ground 2 contends that the Tribunal failed to give the applicant a reasonable opportunity to call evidence from his family members and failed to warn such witnesses that their evidence could be used against other family member applicants.
j.34. 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 his right to call witnesses. 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. Moreover, there is no evidence to indicate that the applicant objected to the approach the Tribunal took to obtain information from his family which it considered relevant. As a result, in my view the applicant was afforded a reasonable opportunity to call evidence from his family as witnesses.
k.35. 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. It is apparent that the Tribunal was not under any statutory obligation to forewarn the applicant that it would be considering the evidence of his family members for the purpose of determining his 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.
l.36. In the circumstances, ground 2 does not identify any jurisdictional error on the part of the Tribunal.
m.37. 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.
n.38. 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 his parents, and found that the applicant had fabricated his 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. The applicant’s assertion in ground 3 does not establish any jurisdictional error by the Tribunal.
o.39. 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.
p.40. 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 and rejected the applicant’s claims on the basis of the evidence before it.
q.41. 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. However, the Tribunal expressly stated that it had considered the information provided by the director.
r.42. 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. 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.
The additional material
a.43. On 31 May 2018 an affidavit by EBO16 was filed to support the assertion made by EBR16 at the trial of the matter on 19 April 2018. As explained in EBO16 v Minister for Immigration at [49]-[56] and EBR16 v Minister for Immigration at [49]-[56], that affidavit does not point to any jurisdictional error by the Tribunal.
Conclusion
a.44. The applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
b.45. I will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 July 2018
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